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McAnany, J.:
Nicholas L. Martinez appeals tire district court’s imposition of an upward dispositional departure sentence following his guilty plea to possession of cocaine and endangering a child. He raises two main issues: (1) whether the fact that he is an illegal alien justifies the denial of presumptive probation and (2) whether the district judge gave him fair notice of her intention to impose a departure sentence. We conclude that under the present statutory scheme for probationers, the fact that Martinez is an illegal alien may, under certain limited circumstances, constitute a substantial and compelling reason for the district court to depart. Nevertheless, the district judge failed to determine whether those limited circumstances existed and also failed to provide adequate warning of her intent to depart. Therefore, we must vacate Martinez’ sentence and remand the case for resentencing.
Martinez also raises an issue with regard to the assessment of the Board of Indigents’ Defense Services (BIDS) attorney fees. We conclude that we must set aside the order for attorney fees and remand for reconsideration of the assessment consistent with State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), and K.S.A. 2006 Supp. 22-4513.
The facts are not in dispute. Detective Terry L. Millard arranged for a controlled buy of illegal drugs from Martinez. The first transaction was concluded with the transfer of powered cocaine from Martinez’ young son. The second transaction was consummated by Martinez delivering the drugs. Martinez was arrested and, pursuant to a search warrant, his house was searched. Police found additional cocaine, along with two stolen social security cards. They also found a United States Immigration and Naturalization Service Resident Alien card issued to one of the victims of the social security card thefts. The resident alien card bore the photograph of Martinez’ wife.
Martinez was charged with the sale of cocaine, possession of cocaine with intent to distribute, endangering a child, theft, and unlawful possession of an identification card. Pursuant to a plea agreement, Martinez entered a guilty plea to an amended charge of possession of cocaine and endangering a child. In return, the State dismissed the remaining charges and recommended that the court impose the presumptive sentence of probation. It was apparent from the comments of his counsel at the plea hearing that Martinez was an illegal alien. In commenting about Martinez’ eligibility for drug treatment, his counsel stated:
“I believe Mr. Martinez, because of his citizenship and status, may or may not be eligible under Senate Bill 123 for the mandatory treatment. He may or may not be here. I think — and I have explained to Mr. Martinez that he risks the fate of his brother that I represented on similar charges who was deported, and Mr. Martinez — if the INS continues, both Mr. McPherson and I expect that that’s what’s going to happen. We certainly have not guaranteed Mr. Martinez that’s not going to happen.”
The court accepted Martinez’ plea and set the matter for sentencing.
At the sentencing hearing, before imposing a sentence, the district judge stated:
“THE COURT: Okay. Well, the first question that arises here is that whether— Mr. Martinez is not legally in this country if I remember right — correctly; is that right?
“THE INTERPRETER: That’s correct, Your Honor.
“THE COURT: Okay, . . . the problem that arises for me is to follow the guidelines here is because Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I were to place him on probation. . . . [H]e . . . has to comply with all the conditions of the probation and he can’t do that because he’s in violation of the law not to violate any federal or state laws. And so for that reason, I am going to have a big problem following these guidelines, but is there any legal reason why I should not impose sentence at this time?”
When neither party responded in the affirmative, the court imposed an upward dispositional departure sentence by denying presumptive probation and sentencing Martinez to 11 months’ imprisonment on the cocaine conviction and a concurrent sentence of 1 year in the county jail on the endangering a child conviction. The court also ordered Martinez to reimburse BIDS for his attorney fees.
Martinez appeals.
The Departure Sentence
Martinez argues that his status as an illegal alien was not a substantial and compelling reason to deny him presumptive probation. He claims that the court’s reliance on his status as an illegal alien resulted in him being sentenced for immigration violations, an unintended use of the guidebnes as well as a violation of his due process and equal protection rights.
It is important to recognize from the outset what this case is not about. Under the sentencing guidebnes enacted by our legislature, Martinez enjoyed the presumption that he should be granted probation. This is not a situation in which the district court determined that Martinez was incapable of fulfilling specific terms of his presumptive probation. The district court concluded, as a matter of law, that his mere presence as an illegal alien rendered him incapable of complying with the law. Had Martinez been placed on probation with the essential requirements that he comply with all appbcable laws, the district court could expect this to include the duty to register with the immigration authorities as required by 8 U.S.C. 444 1302(a) (2000), to report his ongoing whereabouts as required by 8 U.S.C. § 1305(a) (2000), and to otherwise conform his conduct to our civil and criminal laws. Thereafter, the district court could find him to be in violation of his probation if he failed to do so. However, the district court concluded, and the State argues on appeal, that Martinez’ immigration status alone made him ineligible for probation without further examination of his willingness or ability to conform his conduct to the law or to fulfill the terms of his proposed plan of probation.
We review a departure sentence to determine whether the sentencing court’s findings of fact and reasons justifying a departure (1) are supported by substantial evidence in the record and (2) constitute substantial and compelling reasons for departure. State v. Neri, 32 Kan. App. 2d 1131, 1132, 95 P.3d 121, rev. denied 278 Kan. 850 (2004). Whether a factor constitutes a substantial and compelling reason for departure is a question of law over which appellate review is unlimited. State v. Martin, 279 Kan. 623, 625-26, 112 P.3d 192 (2005). To be substantial the reason must be real, not imagined, and of substance, not ephemeral. To be compelling the reason must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose. See State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).
K.S.A. 2006 Supp. 21-4716(c) contains a nonexclusive list of substantial and compelling departure factors. Extra-statutory departure factors are subject to stricter scrutiny than those enumerated in the statute. State v. Murphy, 270 Kan. 804, 807, 19 P.3d 80 (2001). The sentencing court must state on the record the substantial and compelling reasons for the departure, and the court’s comments govern as to the reasons for departure. K.S.A. 2006 Supp. 21-4716(a); Murphy, 270 Kan. at 806.
There is no question that Martinez’ status as an illegal alien was the fact which prompted the court to depart and to not grant him probation. The argument Martinez raises has been considered by the appellate court in Oregon in State v. Zavala-Ramos, 116 Or. App. 220, 223, 840 P.2d 1314 (1992), and in State v. Morales-Aguilar, 121 Or. App. 456, 458-59, 855 P.2d 646 (1993), but not in Kansas.
In Zavala-Ramos, the court concluded that immigration status is not per se relevant, but the sentencing court may consider a pattern of the defendant’s conduct which demonstrates the defendant’s unwillingness to conform his conduct to legal requirements. 116 Or. App. at 223.
Applying Zavala-Ramos, the court in Morales-Aguilar found that the sentencing court did not depart because the defendant was an illegal alien, but because of the defendant’s absolute disregard of law and his pending deportation. 121 Or. App. at 458-59.
In determining whether Martinez’ departure sentence was justified, we must decide whether there is an incongruity between Martinez serving his probation in Kansas and his ongoing presence in this country as an illegal alien. The district court believed that there was.
It is apparent from an examination of K.S.A. 2006 Supp. 21-4716 and the Kansas cases that they do not directly address this issue. K.S.A. 2006 Supp. 21-4716(c)(2) provides a nonexclusive list of aggravating factors that may be considered in determining whether there are substantial and compelling reasons to depart. This list includes the vulnerability of the victim, the brutality of the act, the motivation of the defendant, the relationship between defendant and victim, whether the defendant is a sexual predator, and whether the defendant was incarcerated at the time die crime was committed.
Although nonamenability to probation is not explicidy listed as a substantial and compelling reason to depart, our courts have repeatedly recognized that it is. See State v. Grady, 258 Kan. 72, 89, 900 P.2d 227 (1995), and the various other decisions cited therein. We then must ask: Does the fact that a defendant is an illegal alien automatically render that defendant unamenable to probation?
8 U.S.C. § 1325(a) (2000) declares an alien’s unsanctioned entry into the United States to be a crime. The statute provides:
“Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than 2 years, or both.”
While in this country one whose presence is unlawful remains subject to the full range of obligations imposed by our laws. However, while Congress has criminalized the illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally. 8 U.S.C. § 1326 (2000) makes it a felony for an alien who has been deported to thereafter reenter the United States or at anytime thereafter be found in the United States.
Those persons who enter this country illegally are subject to deportation. 8 U.S.C. § 1227 (2000). Martinez’ counsel acknowledged this possibility at the plea hearing. Deportation may be based upon any number of factors, including the alien’s initial entry into this country contrary to law or acts while in this country, such as the commission of certain crimes. However, while an illegal alien is subject to deportation, that person’s ongoing presence in the United States in and of itself is not a crime unless that person had been previously deported and regained illegal entry into this country. See United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979). As noted by the United States Supreme Court in United States v. Cores, 356 U.S. 405, 408 n.6, 2 L. Ed. 2d 873, 78 S. Ct. 875 (1958), when it commented on 8 U.S.C. § 1325 and similar statutes: “Those offenses are not continuing ones, as ‘entry’ is limited to a particular locality and hardly suggests continuity.”
The district court viewed Martinez’ continued presence in the United States during a term of probation to be incompatible with his status as an illegal alien. The court observed: “Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I were to place him on probation.” This is true if Martinez had previously been deported and thereafter reentered the country illegally. 8 U.S.C. § 1326 would make his mere ongoing presence here a felony. On the other hand, if Martinez entered the country in violation of 8 U.S.C. § 1325 but has not previously been deported, his ongoing presence is not a crime though he is subject to deportation. Since the district court made no finding that 8 U.S.C. § 1326 applies to Martinez, we must set aside the departure sentence and remand for resentencing. If Martinez has not previously been deported, then the mere fact of his illegal alien status does not in itself render him unamenable to probation.
On the other hand, had Martinez previously been deported and reentered the country illegally, the district court’s observations would be correct: Each day he served on probation would be a day on which he violated 8 U.S.C. § 1326. The presentence investigation report for Martinez recommended that if he were placed on probation, he should serve his probation under the supervision of a court services officer. By law his probation would have been conditioned upon him not violating the laws of the United States, the State of Kansas, or any other jurisdiction to which he may be subject. See K.S.A. 2006 Supp. 21-4610(a). Further, a defendant on probation typically is required to meet with the assigned court services officer on some periodic basis. Such an arrangement would have required Martinez’ continued presence in the area throughout the term of his probation. Interestingly, one of the recommended probation conditions was a travel restriction, i.e., Martinez would have been required to remain within a 100-mile radius of his residence in Kansas unless he had the permission of his court services officer. Further, he would have been prohibited from leaving Kansas without the written permission of his court services officer. Thus, it is readily apparent that fulfillment of the statutorily mandated and additional recommended probation terms would have been inconsistent with Martinez continuing to reside in this country as an illegal alien throughout the term of his probation if he had previously been deported and had since reentered this country illegally.
Court service officers are appointed by the chief judge of the judicial district as necessary to perform certain judicial and administrative functions of the district court. K.S.A. 2006 Supp. 20-345. They are officers of the court. They perform a multitude of important tasks for the court, including the supervision of defendants placed on probation. See K.S.A. 20-346a(b). They have the au thority to arrest a probationer for violating the terms of probation and to initiate proceedings which ultimately can lead to the revocation of probation. See K.S.A. 2006 Supp. 22-3716(a). A grant of probation to one whose ongoing presence in this country violates 8 U.S.C. § 1326 would require the supervising court services officer to “look the other way” and ignore the defendant’s ongoing daily violations of law.
As stated in Mapp v. Ohio, 367 U.S. 643, 659, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, reh. denied 368 U.S. 871 (1961):
“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandéis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485[, 72 L. Ed. 944, 48 S. Ct. 564] (1928): ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. ... If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law into himself; it invites anarchy.’ ”
We conclude that there can be no more substantial and compelling reason for a court’s actions than the preservation of the rule of law. Thus, if a defendant’s continued presence in the United States is in violation of 8 U.S.C. § 1326 (previously deported), that fact alone may constitute a substantial and compelling reason to deny presumptive probation.
Martinez argues that state courts are not the proper forum to adjudicate his immigration status. It is true that the courts of this state enjoy no status with respect to the classification of aliens. See Hines v. Davidowitz, 312 U.S. 52, 85 L. Ed. 581, 61 S. Ct. 399 (1941). This power resides in the executive and legislative branches of the federal government. Mathews v. Diaz, 426 U.S. 67, 81, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976). However, there was no adjudication of Martinez’ immigration status by the sentencing court. Martinez’ counsel, sua sponte, referred to Martinez’ status at the plea hearing. At the sentencing hearing the district court asked, “Mr. Martinez is not legally in this country if I remember right — correctly; is that right?” Martinez, through the interpreter, responded, “That’s correct, Your Honor.” The district court did not engage in an adjudication of Martinez’ immigration status. It simply recognized a fact about Martinez which his counsel volunteered during the course of the proceedings. On remand the district court is permitted to consider whether Martinez has been deported in the past in determining his amenability to probation.
Martinez correcdy points out that it is not the function of the state courts to enforce our national immigration laws. The district court was not enforcing our national immigration laws by simply recognizing Martinez’ immigration status for the purpose of deciding whether he is amenable to probation. The fact that our national leaders, for political, policy, or budgetary reasons, have chosen to ignore violations of our immigration laws does not prevent our courts from considering whether a defendant is engaging in an ongoing violation of law in determining that defendant’s amenability to probation. The sentencing court should not be compelled to impose a plan of probation which, by its very nature, cannot be successfully completed.
Martinez also argues that the sentencing court’s departure sentence denied his constitutional rights to due process and the equal protection of the laws. Martinez does not explain how the sentencing court denied his right to due process. An issue asserted in passing without supporting argument or authority is deemed waived. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004).
With respect to Martinez’ equal protection claim, there is no doubt that the Fourteenth Amendment to the United States Constitution extends its protections to all persons within the boundaries of this state. Its protections are not limited to citizens of this country. Nevertheless, the Equal Protection Clause does not prohibit all classifications, only invidious classifications. As noted by the Court in Plyler v. Doe, 457 U.S. 202, 216, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982), the case relied upon by Martinez:
“The Equal Protection Clause directs that ‘all persons similarly circumstanced shall be treated alike.’ F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415[, 64 L. Ed. 989, 40 S. Ct. 560] (1920). But so too, ‘[t]he Constitution does not require tilings which are different in fact or opinion to be treated in law as thought they were the same.’ Tigner v. Texas, 310 U.S. 141, 147[, 84 L. Ed. 1124, 60 S. Ct. 879] (1940).”
The Court also noted: “In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216.
Martinez was not singled out by the sentencing court because of his race or nationality. It is possible for a resident alien lawfully in this country to successfully complete a plan of probation. So could an illegal alien who is not in violation of 8 U.S.C. § 1326. On the other hand, an illegal alien whose presence violates 8 U.S.C. § 1326 could not. The issue left unresolved is which category applies to Martinez.
Finally, we are not persuaded by Martinez’ argument that the district court’s decision to grant an appeal bond is irreconcilable with its decision to deny probation. The appropriateness of an appeal bond is not determinative of whether a substantial and compelling reason supports his departure sentence.
We do not presume to breach the line between inteipreting and applying the law on one hand and establishing public policy on the other. We leave the latter task to our legislative branch. But our legislature, in enacting K.S.A. 2006 Supp. 21-4610(a), has mandated a provision in every probation plan that the defendant, during the term of probation, not violate the laws the United States. So long as this remains the law of our státe, we must refrain from any activity that undermines its clear and unequivocal intent. Further, the sentencing court must be permitted to recognize an inherent conflict which may impede a defendant’s successful compliance with a plan of probation which requires the defendant’s continued presence in the jurisdiction and the defendant’s compliance with the laws of the United States throughout the term of probation. Thus, if Martinez-is present in the United States in violation of 8 U.S.C. § 1326 (previously deported), the district court may consider this fact in determining whether he could successfully complete a plan of probation.
Notice of Intent to Depart
Martinez also claims he was not given notice or an opportunity to respond to the district court’s intent to impose a departure sentence. In resolving this issue we must look to the requirements of K.S.A. 2006 Supp. 21-4718(a)(3). Whether these requirements were met is an issue of law over which appellate courts exercise unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
While Martinez did not raise this issue before the district court, the issue arises from undisputed facts and is limited to a question of law. Hence, we will address it. See State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005).
K.S.A. 2006 Supp. 21-4718(a)(3) states:
“If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if requested. The notice shall state the type of departure intended by the court and the reasons and factors relief upon.”
Here, the parties did not become aware of the sentencing court’s intent to depart until the sentencing hearing. The sentencing court’s notice of its intention to depart must be reasonable. “At a minimum, this means it must be provided at such a time and with such specificity that the defendant and the State have a fair opportunity to marshal and present their arguments for or against the proposed departure before sentence is pronounced.” State v. Carr, 29 Kan. App. 2d 501, 503, 28 P.3d 436 (2001), aff'd 274 Kan. 442, 53 P.3d 843 (2002).
It is clear that the sentencing judge’s notice of her intent to depart was inadequate. There was no advance notice prior to the actual sentencing hearing. When the sentencing judge gave notice of her intent to depart, Martinez was not provided an adequate opportunity to marshal and present his arguments against departure before sentence was pronounced. Consequently, the notice requirement of K.S.A. 2006 Supp. 21-4718(a)(3) was not satisfied, and we are required to vacate the sentence and remand for re-sentencing.
BIDS Fees
Finally, Martinez challenges the district court’s order that he reimburse BIDS for attorney fees because the court failed to explicitly consider on the record his ability to pay the fees. The State concedes that State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), controls. Accordingly, we vacate the order for fees and remand for the sentencing court to comply with K.S.A. 2006 Supp. 22-4513 and the requirements of Robinson. However, with regard to the imposition of the BIDS application fee pursuant to K.S.A. 2006 Supp. 22-4529, we adopt the reasoning announced in State v. Hawkins, 37 Kan. App. 2d 195, 152 P.3d 85 (2007), rev. granted June 25, 2007 (review pending). The district court did not err in its assessment of the application fee.
Affirmed in part, sentence and order for attorney fees vacated, and case remanded with directions for resentencing and reconsideration of the assessment of attorney fees consistent with Robinson. | [
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Green, J.:
Veronica Spangler appeals from her convictions and sentences after a jury trial of manufacture of methamphetamine in violation of K.S.A. 2006 Supp. 65-4159, conspiracy to manufacture methamphetamine in violation of K.S.A. 2006 Supp. 65-4159 and K.S.A. 2006 Supp. 21-3302, possession of methamphetamine in violation of K.S.A. 65-4107(d)(3), and possession of drug manufacturing paraphernalia in violation of K.S.A. 2006 Supp. 65-4152(a)(3). First, Spangler argues that the trial court erred in al lowing the State to amend the conspiracy charge at the close of the State’s evidence at trial. We agree. By changing the complaint to charge specific overt acts sufficient for the crime of conspiracy to manufacture methamphetamine and by changing the name of the party who allegedly committed the overt acts, the State was allowed to prosecute Spangler for a different crime from the crime alleged in the original complaint. Moreover, we determine that the amendment, which forced Spangler to change her defense to the conspiracy charge in the middle of trial, prejudiced her substantial rights. Therefore, the State should not have been allowed to amend the conspiracy charge under K.S.A. 2006 Supp. 22-3201(e).
Next, Spangler contends that her convictions for manufacture of methamphetamine and conspiracy to manufacture methamphetamine were not supported by sufficient evidence. We disagree. After reviewing the evidence in the light most favorable to the prosecution, we are convinced that a rational jury could have found Spangler guilty beyond a reasonable doubt. Finally, Spangler argues that she should be resentenced to drug severity level 4 felonies for her convictions of manufacture of methamphetamine and conspiracy to manufacture methamphetamine because manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159 is identical to use of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(3). Because we are reversing Spangler’s conviction for conspiracy to manufacture methamphetamine, it is unnecessary to address Spangler’s argument as it relates to her sentence on the conspiracy charge. After considering the underlying facts of this case in relation to the statutory elements of the crimes as required by State v. Fanning, 281 Kan. 1176, 135 P.3d 1067 (2006), we determine that manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159(a) is identical for sentencing purposes to use of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(3). Accordingly, we reverse Spangler’s conviction for conspiracy to manufacture methamphetamine, we affirm her convictions for manufacture and possession of methamphetamine and possession of drug manufacturing paraphernalia, and we vacate her sentence for manufacture of methamphetamine and remand for resentencing as a drug severity level 4 felony.
In October 2004, law enforcement officers began investigating and surveilling a pasture owned by Charles “Tug” Atchison based on their suspicions of a methamphetamine lab at that location. Officers watched the pasture several times in 2004 until the weather became bad.
On March 15,2005, officers were again watching Atchison’s pasture when they saw someone exit a truck, drop an item in the feed bin on Atchison’s land, and reenter the truck. As the truck was leaving the pasture, officers stopped and arrested the truck’s occupants, Raymond Roberts, Walter O’Handlen, and Karen O’Handlen. In the truck, officers found cold pills, lithium batteries, a cellophane wrapper containing what appeared to be methamphetamine, a coffee filter with finished methamphetamine, starter fluid with ether, and receipts listing items used in the manufacture of methamphetamine.
When interviewed at the police station, Walter and Karen admitted that they had been involved in manufacturing methamphetamine with Roberts that day. Walter and Karen said that Raymond had contacted them and asked them to bring some items out to Atchison’s pasture. Walter and Karen admitted that they purchased ingredients to manufacture methamphetamine and had helped Roberts to manufacture methamphetamine. Karen testified at trial that she and Walter supplied the batteries, cold pills, and starter fluid but that the sludge (a mixture of pills and hthium) was already at Atchison’s when they arrived. When asked about Spangler’s involvement in the manufacture of methamphetamine, Walter and Karen told the interviewing officer that Spangler would buy ingredients, such as starter fluid, pills, batteries, and other items needed to manufacture methamphetamine.
During the early morning hours of March 16, 2005, a search warrant was executed at Roberts’ home. Spangler lived with Roberts, and they had a child together. During the search, officers discovered the following items: a glass dish containing a powdery residue and a razor blade in a child’s bedroom; a glass pipe; a brass pipe; a driver’s license with a powdery residue; a mirror and knife containing residue; and scanner radios. In addition, officers removed from the ceiling a bag containing pieces of foil, a plastic pen tube, a glass smoking pipe, and a plastic baggie with residue. Later testing on the glass dish, the knife, the driver’s license, one of the glass pipes, and the plastic baggie detected methamphetamine.
Spangler was not home during the search. She was later stopped in Overbrook and arrested. While in jail, Spangler requested to speak with Sheriff Laurie Dunn. After waiving her Miranda rights, Spangler told Dunn that she normally knew when the manufacture of methamphetamine or “cook” was going to occur. Spangler described to Dunn where they got the ingredients, what she had done in the past to purchase materials to make methamphetamine, and to whom they sold the drugs. Spangler said that she had purchased lithium batteries, starter fluid, pills, acid, and coffee filters in the past for the cooks. Spangler told Dunn that she and Roberts had a family plan. They had arranged it so that only one of them would be at the “cooks” at the same time. That way, if one of them was arrested, the other would be able to take care of the children. Spangler said that she had not been to any cook.
Spangler told Dunn that the cooks occurred at Atchison’s and that Atchison would be paid in methamphetamine for the use of his land. Spangler told Dunn that after the cook, the methamphetamine was brought to her and Roberts’ home where it would sometimes be cut. Spangler informed Dunn that the knife and driver’s license found at her house were used to cut the methamphetamine. Spangler said that she usually delivered the methamphetamine to Atchison’s property the following morning and would place it in a black plastic container located behind a shed.
Dunn and Spangler discussed the black bag that had been found in the ceiling of her home. Spangler told Dunn that the officers had missed some electric scales that she put in the ceiling the previous week. Spangler said that the glass dish in the children’s room had been left there by Jeff Atchison.
Roberts was convicted of manufacture of methamphetamine and sentenced to 92 months in prison. Karen reached a plea agreement with the State and was sentenced to 50 months in prison. Walter also reached a plea agreement with the State and was sentenced to 50 months in prison. Spangler was charged with manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of methamphetamine, and possession of drug manufacturing paraphernalia. At trial, Spangler testified that she knew Roberts manufactured methamphetamine on Atchison’s land. Nevertheless, she had nothing to do with the manufacture of methamphetamine. Spangler admitted that in the past, she had purchased items used to manufacture methamphetamine. Since her son was bom in July 2003, however, she had not purchased those items.
William Kraus, the operator of a hardware store in Burlingame, testified that he turned Spangler’s name into law enforcement because she had repeatedly purchased muriatic acid from his store. According to Kraus, Spangler purchased muriatic acid from his store in the spring of 2005. Spangler testified that she purchased the muriatic acid for drain problems at her home.
Spangler admitted to using methamphetamine daily around the time of her arrest. In the last 5 years, she had not used methamphetamine for only a year and a half. According to Spangler, she did not measure out the methamphetamine that Roberts had manufactured. Spangler acknowledged drat she sometimes delivered methamphetamine to Atchison for payment for the use of his property. Spangler testified that she would call Atchison and let him know that she had delivered the methamphetamine. Spangler admitted to calling Atchison and telling him to take some acid to Roberts for the manufacture.
Spangler testified that on the afternoon of March 15, 2005, she gave Roberts a ride to Burlingame so that he could move a shed to his brother’s property. Spangler later stopped to speak with Walter and Karen who had run out of gas and were parked near the old schoolhouse in Burlingame. According to Spangler, she found Roberts and told him where Walter and Karen were. According to Karen, however, Spangler bought them gas and told them where Roberts was. Spangler testified that when Roberts did not come home that evening, Spangler called around to their friends and was told that Roberts was in jail. Spangler called the jail and confirmed that Roberts was there. Spangler drove to a friend’s house in Harveyville that night and used methamphetamine.
Roberts testified that he was making methamphetamine with Karen and Walter on March 15, 2005, at Atchison’s property. According to Roberts, Karen and Walter had called him that day and told him they had purchased all the items to make the methamphetamine. Roberts told Karen and Walter to meet him at Atchison’s property in Burlingame. Roberts testified that he told Spangler he was going to move a shed but did not mention to her that he would be manufacturing methamphetamine that day. According to Roberts, Spangler had not purchased items to manufacture methamphetamine since their son was bom in July 2003. Roberts testified that he never manufactured methamphetamine in his and Spangler’s home. Roberts further testified that he might have weighed, cut, and separated it in their home, but he never involved Spangler in this process. According to Roberts, he usually dropped off Atchison’s portion of the methamphetamine when he left Atchison’s land. Nevertheless, Roberts admitted that Spangler delivered Atchison’s portion of the methamphetamine a couple of times.
Karen testified that she, Walter, and Roberts had been manufacturing methamphetamine since at least October 2004. According to Karen, they manufactured methamphetamine approximately every 2 weeks. Walter testified that Spangler was not at Atchison’s property on March 15, 2005, but that he had seen her out there once. Karen testified that she had never seen Spangler at Atchison’s property while they manufactured methamphetamine nor had she seen her manufacture methamphetamine. According to Karen, Spangler would help buy the pills and batteries for the cooks. Karen testified about a shopping trip in Lawrence just before Christmas during which Spangler purchased pills and batteries.
The jury found Spangler guilty of all four counts. Spangler was sentenced to 154 months in prison.
1. Amendment of Complaint
First, Spangler argues that the trial court erred in allowing the State to amend the conspiracy charge at the close of the State’s evidence at trial.
Under K.S.A. 2006 Supp. 22-3201(e), the trial court “may permit a complaint or information to be amended at any time before ver diet or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Therefore, “[a] two-part analysis determines whether an amendment prior to submission of the case to the juiy may be permitted: (1) Does the amendment charge an additional or different crime? [and] (2) Are the substantial rights of the defendant prejudiced by the amendment? [Citations omitted.]” State v. Matson, 260 Kan. 366, 370, 921 P.2d 790 (1996). Prejudice is the determining factor. We review the determination on the prejudice prong for abuse of discretion. See State v. Woods, 250 Kan. 109, Syl. ¶ 1, 825 P.2d 514, cert. denied 506 U.S. 850 (1992). Discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006).
On March 18, 2005, Spangler was originally charged with conspiracy to manufacture methamphetamine as follows:
“That on or about the 15th day of March, 2005, in Osage County, Kansas, VERONICA JEAN SPANGLER did unlawfully, feloniously and intentionally agree with another person, to-wit: Walter O’Handlen, Raymond Roberts, and Karen O’Handlen to commit the crime of manufacturing methamphetamine as defined by K.S.A. 65-4159 and an overt act in furtherance of the conspiracy was committed by Raymond Roberts, Karen O’Handlen and Walter O’Handlen, to-wit: manufacture of methamphetamine; contrary to K.S.A. 21-3302 and 65-4159; a drug severity level 1 felony.”
Just before the completion of the State’s evidence at trial in November 2005, the prosecutor moved to amend the conspiracy charge to expand the time frame of when the crime occurred from on or about March 15, 2005, to between October 2004 to March 15, 2005. In addition, the prosecutor conceded that the complaint, which alleged only that the overt act was the manufacture of methamphetamine, was insufficient. The prosecutor sought to include in the conspiracy charge the overt acts of Spangler’s purchase of ephedrine pills, muriatic acid, and lithium batteries and her involvement in the delivery of methamphetamine.
Spangler objected to the State’s motion to amend the conspiracy charge, arguing that the proposed amendment was highly prejudicial. Spangler’s counsel asserted that Spangler had relied on the charge since March 18, 2005, and that the preparation and cross- examination in the case could not be changed. The trial court found that the wording in the initial complaint did not limit the conspiracy crime to only the 15th of March. Moreover, the trial judge stated that “as to the conspiracy, I don’t think they could find proving conspiracy only on the 15th day of March.” After determining that the amendments conformed to the evidence that had been presented in the case, the trial court allowed the prosecutor to amend the complaint.
Initially, Spangler maintains that the trial court’s ruling constituted an acquittal of the conspiracy charge. Spangler focuses on the trial court’s statement that the jury could not find that the conspiracy occurred only on the 15th day of March. Nevertheless, Spangler was charged with conspiracy “on or about the 15th day of March.” The charge was not limited to only the 15th day of March. As a result, the trial court’s statement did not constitute an acquittal of the conspiracy charge.
A. Additional or Different Crime
Spangler maintains that the trial court should not have allowed the amendment under K.S.A. 2006 Supp. 22-3201(e) because it resulted in an additional or different crime being charged.
The prosecutor in this case conceded that the initial complaint failed to set forth a sufficient overt act in furtherance of the conspiracy. The overt act set forth in the initial complaint was manufacture of methamphetamine, a mere recitation of the crime that Spangler was alleged to have conspired to commit. In requesting the amendment of the complaint, the prosecutor stated that there needed to be more specific overt acts alleged in the complaint.
Under K.S.A. 2006 Supp. 21-3302(a), “[n]o person maybe convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.” Thus, “K.S.A. 21-3302(a) requires a charge of conspiracy to include an allegation of the overt act upon which such charge is based.” State v. Crockett, 26 Kan. App. 2d 202, Syl. ¶ 3, 987 P.2d 1101 (1999). Because an overt act is an essential element of the crime of conspiracy, an allegation of conspiracy is fatally defective unless an overt act is charged. State v. Marino, 34 Kan. App. 2d 857, 862, 126 P.3d 427, rev. denied 281 Kan. 1380 (2006).
In Marino, no overt act was alleged in the complaint. Nevertheless, the trial court later broadened or constructively amended the complaint by setting forth the specific overt acts in the juiy instructions. This court held that the trial court’s instruction allowed the jury to convict the defendant of an offense different from the offense alleged in the complaint. 34 Kan. App. 2d at 863.
Moreover, in State v. Sweat, 30 Kan. App. 2d 756, 48 P.3d 8, rev. denied 274 Kan. 1118 (2002), a defendant was convicted among other crimes of conspiracy to commit first-degree murder. The complaint read in pertinent part:
“[0]n or about the 23rd day of June, 2000, in said County of Reno and State of Kansas, one MICHELLE L. SWEAT then and there being, did then and there, unlawfully, FELONIOUSLY, and willfully: . . . commit an overt act towards the perpetration of the crime of Murder in the First Degree, to-wit: intentionally and with premeditation kill the person of Lloyd Eddens, who intended to commit said crime, but failed in the perpetration thereof or was prevented or intercepted in executing such crime.
“. . . On or about the 23rd day of June, 2000, in said County of Reno and State of Kansas, one MICHELLE L. SWEAT then and there being, did then and there, unlawfully, FELONIOUSLY, and willfully: agree with another person, to-wit: Armando Fierro, to commit the crime or to assist in committing the crime of Murder in the First Degree, to-wit: intentionally and with premeditation kill Lloyd Eddens, in an overt act, and further such conspiracy was committed by such person or said co-conspirator.” 30 Kan. App. 2d at 759.
In stating that the complaint did not even attempt to allege any specific overt act committed in furtherance of the conspiracy, the Sweat court stated: “It is not sufficient to say merely that the defendant willfully agreed with another person to commit the crime or to assist in committing the crime. Her [Michelle Sweat] conspiracy conviction must therefore be reversed.” 30 Kan. App. 2d at 761. This is the problem with the State’s initial complaint in this case. The complaint merely recited the crime that Spangler was alleged to have conspired to commit. Moreover, the prosecutor conceded that a sufficient overt act was not alleged in the initial complaint for the conspiracy charge.
Furthermore, the prosecutor was allowed not only to amend the conspiracy charge to allege specific overt acts of “the purchase of ephedrine pills, muriatic acid, lithium batteries, delivery of methamphetamine, and actual manufacture of methamphetamine,” but also to change the name of the parly who allegedly committed the overt acts. The amended complaint covering the conspiracy charge stated:
“That between the 4th day of October, 2004, and the 15th day of March, 2005, in Osage County, Kansas, VERONICA JEAN SPANGLER did unlawfully, feloniously and intentionally agree with another person, to-wit: Walter O’Handlen, Raymond Roberts, and Karen O’Handlen to commit the crime of manufacturing methamphetamine as defined by K.S.A. 65-4159 and an overt act in furtherance of the conspiracy was committed by Veronica Spangler, to-wit: purchase of ephedrine pills, muriatic acid, lithium batteries, delivery of methamphetamine, and actual manufacture of methamphetamine.”
The original complaint stated that the overt act in furtherance of the conspiracy was committed by Raymond Roberts, Karen O’Handlen, and Walter O’Handlen. Nevertheless, the amended complaint stated that the overt act in furtherance of the conspiracy was committed by Spangler.
By changing the complaint to charge specific overt acts sufficient for the crime of conspiracy to manufacture methamphetamine and by changing the name of the party who allegedly committed the overt acts, the State was allowed to prosecute Spangler for an offense different from the offense alleged in the original complaint.
Further, by expanding the time period of the alleged criminal acts from a somewhat definite duration of on or about March 15th to a 6-month period, the State encompassed additional crimes of manufacturing methamphetamine in the conspiracy charge. At trial, Karen testified that they manufactured methamphetamine approximately once every 2 weeks. The initial charge of manufacturing methamphetamine on or about March 15th would encompass one or perhaps two manufactures. The amended charge of manufacturing methamphetamine would encompass approximately 12 or 13 manufactures. This changed the crime from conspiracy to manufacture methamphetamine on or about March 15th to conspiracy to manufacture methamphetamine between October 4, 2004, and March 15, 2005.
B. Prejudice
Spangler further maintains that the amendment to the complaint at the end of the State’s case prejudiced her defense under K.S.A. 2006 Supp. 22-3201(e) because it forced her to defend acts taking place months before the incident in question in the original complaint. Spangler argues that this late amendment blindsided the defense and prevented her from effectively defending the conspiracy charge.
Spangler’s argument has merit. The State moved to amend the complaint just before it ended the presentation of its evidence at trial. Up to that point, it was obvious that part of defense counsel’s strategy, based on his cross-examination of the State’s witnesses, was to show that the State could not prove that Spangler had been involved in any part of the March 15th manufacture. By expanding the time period of the crime from on or about a particular date (March 15th) to a 6-month period, the State forced Spangler to change her defense. In the middle of trial, Spangler went from having to defend the manufacture of methamphetamine on or about March 15th to having to defend the manufacture of methamphetamine that occurred from October 4, 2004, to March 15, 2005. The expanded time period covered many more incidents of manufacturing methamphetamine than the initial charge. When the State amended the complaint, however, defense counsel had completed almost all of its cross-examination of the State’s witnesses. At that point, defense counsel was stuck with his defense strategy as it pertained to the State’s witnesses. Therefore, the State’s amendment of the complaint prejudiced Spangler.
This prejudice was further compounded by the State’s amendment of the complaint to charge specific overt acts by Spangler. In Marino, 34 Kan. App. 2d 857, Syl. ¶ 2, this court stated: “Because an overt act is an essential element of a conspiracy, a conspirator has the right to be informed of the overt act.” The State gave Spangler notice of specific overt acts on which it was alleging to prove the conspiracy charge for the first time at the end of its evidence at trial. Defense counsel had completed almost his entire cross-examination of the State’s witnesses before he was made aware of the specific overt acts. At that point, he could not change his cross-examination to more adequately conform to the overt act element alleged in the amended complaint. Expanding the time period of the alleged criminal acts and changing the specific overt acts and the name of the parly who allegedly committed those acts substantially prejudiced Spangler’s defense.
As a result, we determine that Spangler was substantially prejudiced by the amendment of the complaint in the middle of trial. Accordingly, we reverse Spangler’s conviction for conspiracy to manufacture methamphetamine.
II. Sufficiency of Evidence
Next, Spangler argues that her convictions for manufacture of methamphetamine and conspiracy to manufacture methamphetamine were not supported by sufficient evidence. When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005).
As an appellate court, we do not weigh conflicting evidence or pass on the credibility of witnesses. Further, we resolve all questions of credibility in favor of the State. State v. Kuykendall, 264 Kan. 647, 651, 957 P.2d 1112 (1998). The juiy has the prerogative to determine the credibility of witnesses, the weight of the evidence, and any reasonable inferences that may be drawn from the evidence. State v. Green, 280 Kan. 758, 761, 127 P.3d 241 (2006). An appellate court looks only to the evidence that supports the verdict, and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Adams, 269 Kan. 681, 683-84, 8 P.3d 724 (2000).
A. Manufacture of Methamphetamine
The State’s theory at trial on the charge of manufacture of methamphetamine was that Spangler had aided and abetted Roberts, Walter, and Karen in the manufacture of methamphetamine on or about March 15, 2005.
Aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor. State v. Parker, 22 Kan. App. 2d 206, 207, 913 P.2d 1236, rev. denied 260 Kan. 1000 (1996). Under K.S.A. 21-3205(1), “[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
To establish guilt under an aiding and abetting theory, the State was required to show that Spangler knowingly associated with the unlawful venture and participated in such a way as to indicate that she was facilitating the success of the venture. See Green, 280 Kan. at 761. ‘Without other incriminating evidence, mere presence in the vicinity of the crime or mere association with the principals that committed the crime is not sufficient to establish guilt as an aider and abettor. [Citation omitted.]” Green, 280 Kan. at 761-62.
Here, the evidence showed that Spangler had been participating in facilitating the success of the methamphetamine manufactures done by Roberts, Walter, and Karen. The State presented evidence that Spangler had purchased ingredients used in the manufacture of methamphetamine as late as the spring of 2005. Spangler and Roberts had a family plan where only one of them would be involved in the actual cook so if that person was arrested, the other one would be able to take care of the children. Spangler admitted that after the cook, Roberts would bring the methamphetamine back to their house where it would be cut. Spangler would then deliver a portion of it the following morning to Atchison as payment for the use of his land for the cook.
Moreover, the evidence establishes that on March 15, 2005, Spangler had contact with all three of the people who admitted to manufacturing methamphetamine on that date. Spangler dropped Roberts off at Atchison’s house that afternoon. Spangler later stopped to help Walter and Karen who had run out of gas. Karen testified that Spangler bought gas for them and told them where Roberts was. According to Spangler, she drove to see Roberts and told him where Walter and Karen were. Based on Spangler’s in volvement with the three principal actors on March 15, 2005, a jury could infer that Spangler knew about the manufacture taking place that day and that she was facilitating the success of the venture through her actions of helping Roberts, Walter, and Karen.
Spangler points out that the prosecutor speculated in closing argument at trial that she and Roberts had taken the mixture of pills and lithium to Atchison’s house on March 15, 2005. Although Spangler maintains that there could be no reasonable inference that she and Roberts took the mixture to Atchison’s house that day, the evidence presented at trial indicates otherwise. Spangler took Roberts to Atchison’s house around 3:30 p.m. March 15, 2005. When Karen and Walter arrived at Atchison’s home on the afternoon of March 15, 2005, the mixture of pills and lithium was already made. Roberts, Karen, and Walter had made arrangements to cook methamphetamine at Atchison’s that day. Roberts was the person in charge of the cooks and would receive the majority of the methamphetamine produced. A reasonable inference from the evidence would be that Roberts and Spangler brought the mixture of pills and lithium to Atchison’s when Spangler dropped off Roberts.
A review of the evidence in the light most favorable to the State leads to the conclusion that Spangler knowingly associated with the unlawful venture to manufacture methamphetamine and that she participated in such a way as to indicate that she was facilitating the success of the venture. See Green, 280 Kan. at 761. Accordingly, there was sufficient evidence for the jury to find beyond a reasonable doubt that Spangler aided and abetted in the manufacture of methamphetamine on or about March 15, 2005.
B. Conspiracy to Manufacture Methamphetamine
In order for the jury to find Spangler guilty of conspiracy to manufacture methamphetamine, the State needed to prove the following elements: (1) that Spangler agreed with Roberts, Walter, and Karen to commit the crime of manufacture of methamphetamine; (2) that Spangler agreed with the intent that the crime of manufacture of methamphetamine be committed; (3) that the defendant acted in furtherance of the agreement by purchasing ephedrine pills, muriatic acid, lithium batteries, delivery of methamphetamine, and the actual manufacture of methamphetamine; and (4) that this act occurred between October 4, 2004, and March 15, 2005, in Osage County, Kansas.
Spangler contends that her “general knowledge of past conspiracies” and her “after-the-fact involvement in those conspiracies does not constitute any evidence that she had entered into an agreement to manufacture on or about March 15, 2005.” Spangler s conspiracy conviction, however, was based upon conspiracy to manufacture methamphetamine that occurred between October 4, 2004, and March 15, 2005.
Moreover, the State’s evidence showed that Spangler had participated in more than an “after-the-fact involvement” of the manufacture of methamphetamine. Roberts, Karen, and Walter had been manufacturing methamphetamine every other week since at least October 2004. Spangler used methamphetamine daily and knew when Roberts was going to cook the methamphetamine. Roberts and Spangler had a family plan where only one of them would be involved in the actual cook. Karen’s testimony revealed that Spangler would help buy the pills and batteries for the manufacturing process. Karen specifically testified about a shopping trip in Lawrence just before Christmas during which Spangler purchased pills and batteries. Additional evidence established that Spangler had repeatedly purchased muriatic acid in the spring of 2005. Once an actual cook was finished, Roberts brought the methamphetamine back to their home where he would cut it with other substances and package it. Karen would then deliver a portion of the methamphetamine to Atchison for the use of his property. Although Spangler was not at the actual cook, a jury could conclude that Spangler conspired with Roberts, Karen, and Walter and assisted with the manufacture of methamphetamine by purchasing ingredients and delivering methamphetamine as payment for the use of Atchison’s land.
Based on the evidence, a jury could conclude beyond a reasonable doubt that Spangler was involved in a conspiracy to manufacture methamphetamine occurring between October 4, 2004, and March 15, 2005.
III. Sentencing
Finally, Spangler contends that the trial court erred in sentencing her to drug severity level 1 felonies for her convictions of manufacture of methamphetamine and conspiracy to manufacture methamphetamine. Spangler argues that the crime of manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159 is identical to the crime of the use of drug paraphernalia with the intent to manufacture a controlled substance under K.S.A. 2006 Supp. 65-4152(a)(3). Therefore, Spangler maintains that the trial court should have sentenced her to a drug severity level 4 felony under K.S.A. 2006 Supp. 65-4152(a)(3) rather than a drug severity level 1 felony under K.S.A. 2006 Supp. 65-4159 for her convictions of manufacture of methamphetamine and conspiracy to manufacture methamphetamine.
It seems that Spangler did not raise this particular issue before the trial court. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). Nevertheless, K.S.A. 21-4721(e)(3) gives appellate courts the jurisdiction to review a claim that the sentencing court erred in ranking the crime severity level. See State v. Fanning, 281 Kan. 1176, 1178, 135 P.3d 1067 (2006).
Spangler s argument involves the interpretation of statutes. Interpretation of a statute presents a question of law over which an appellate court’s review is unlimited. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
K.S.A. 2006 Supp. 65-4159(a) states that “[ejxcept as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” Methamphetamine is a controlled substance within the meaning of K.S.A. 2006 Supp. 65-4159(a). See K.S.A. 2006 Supp. 65-4150(a); K.S.A. 65-4107(d)(3).
K.S.A. 2006 Supp. 65-4152(a)(3) states that “[n]o person shall use or possess with intent to use . . . any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.”
In State v. McAdam, 277 Kan. 136, 144, 83 P.3d 161 (2004), our Supreme Court applied the rule from State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989), that “ ‘[w]here two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision/ ” to determine that the offenses of manufacturing methamphetamine under K.S.A. 65-4159(a) and compounding methamphetamine under K.S.A. 65-4161(a) are identical. There, the defendant was sentenced for conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) as a drug severity level 1 felony. The defendant argued that he should have been sentenced under K.S.A. 65-4161(a), which proscribes compounding methamphetamine. Having determined that manufacturing methamphetamine is the same as compounding methamphetamine, our Supreme Court held that the statutes contained identical elements. Later, in Fanning, 281 Kan. 1176, our Supreme Court pointed out that the McAdam court, in determining whether K.S.A. 65-4159(a) and K.S.A. 65-4161(a) were identical, considered the elements of the statutes in relation to the facts of the case rather than just the statutory elements.
In State v. Campbell, 279 Kan. 1, 16, 106 P.3d 1129 (2005), our Supreme Court applied the analysis in McAdam to conclude that possession of drug paraphernalia with the intent to manufacture methamphetamine under K.S.A. 65-4152(a)(3) was identical to possession of ephedrine or pseudoephedrine with the intent to produce a controlled substance under K.S.A. 65-7006(a).
In Fanning, 281 Kan. 1176, Syl. ¶ 2, our Supreme Court held that a court must examine the underlying facts of a case in relation to the statutory elements of the offenses under consideration to determine whether the rule in McAdam should be applied to sentence a defendant to the lesser penalty. There, the defendant and his companions were stopped after officers discovered them leaving a store carrying several items used in the manufacture of methamphetamine. The officers found additional items to manufacture methamphetamine in their car. One of the companions admitted to officers that they were planning to use the products to manu facture methamphetamine. The defendant later pled no contest to attempted manufacture of methamphetamine, a severity level 1 felony under K.S.A. 65-4159(a) and K.S.A. 21-3301(a).
On appeal, the defendant in Fanning argued that he should be resentenced to a drug severity level 4 felony under K.S.A. 65-4152(a)(3) because that statute, which defines possession of drug paraphernalia with intent to manufacture, is identical to K.S.A. 65-4159. Our Supreme Court applied the statutoiy elements of each crime to the facts of the case and compared the two crimes. For the crime of attempted manufacture of methamphetamine, the State had to prove that Fanning: (1) possessed products used for manufacturing methamphetamine (the overt act); (2) possessed the products with the intent to manufacture methamphetamine; and (3) was prevented or intercepted in actually manufacturing methamphetamine. For the crime of possession of drug paraphernalia with the intent to manufacture methamphetamine, the State would have to prove that Fanning: (1) possessed products used for manufacturing methamphetamine; and (2) possessed the products with the intent to manufacture methamphetamine. Our Supreme Court determined that although the elements were nearly identical, attempted manufacture of methamphetamine required an additional element not found in possession of drug paraphernalia. Therefore, the two crimes were not identical under the rules applied in McAdam and Campbell, which required the elements proven to be exactly the same under each statute. 281 Kan. at 1182-83.
The defendant in Fanning also argued that the term “use” in K.S.A. 65-4152(a)(2) was equivalent to the term “manufacture” in K.S.A. 65-4159. Nevertheless, our Supreme Court determined that the record did not support the defendant’s argument that he used drug paraphernalia to attempt to manufacture methamphetamine. The evidence merely established possession of drug paraphernalia. Limiting its analysis to McAdam and Campbell and the facts as supported by the record in relation to the statutory elements of the crimes, our Supreme Court held that the crime of attempted manufacture of methamphetamine was not identical to the crime of possession of drug paraphernalia with the intent to manufacture methamphetamine.
Spangler contends that applying the analysis in Fanning to the facts of this case, this court must determine that she should be resentenced as a severity level 4 offender under K.S.A. 2006 Supp. 65-4152(a)(3), which criminalizes the use of drug manufacturing paraphernalia with the intent to manufacture, for her crimes of manufacturing methamphetamine and conspiracy to manufacture methamphetamine.
A. Conspiracy to Manufacture Methamphetamine
Because we are reversing Spanglers conviction for conspiracy to manufacture methamphetamine, it is unnecessary to address Spangler’s argument on this sentencing issue. Nevertheless, we have looked at Spangler’s argument and have determined that it is fatally flawed.
Based on the charges in the present case, in order to show that Spangler was involved in a conspiracy to manufacture methamphetamine, the State needed to prove the following elements:
1. That the defendant agreed with Roberts, Walter, and Karen to commit the crime of manufacture of methamphetamine;
2. That the defendant agreed with the intent to commit the crime of manufacture of methamphetamine; and
3. That the defendant acted in furtherance of the agreement by purchasing ephedrine pills, muriatic acid, lithium batteries, delivering methamphetamine, and actually manufacturing methamphetamine.
Applying the elements of the use of drug paraphernalia to manufacture methamphetamine under K.S.A. 2006 Supp. 65-4152(a)(3), we determine that the State would be required to prove the following elements:
1. That the defendant knowingly used drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell, or distribute methamphetamine. See PIK Crim. 3d 67.17(l)(c).
The charge of conspiracy to manufacture methamphetamine requires the proof of elements not required to prove the use of drug paraphernalia to manufacture methamphetamine. Specifically, the conspiracy charge requires an agreement between the defendant and other individuals to manufacture methamphetamine. Moreover, based on the overt acts that were charged in the present case, the conspiracy charge required proof that the defendant delivered methamphetamine. Neither of these elements is found in use of drug paraphernalia to manufacture methamphetamine under K.S.A. 2006 Supp. 65-4152(a)(3). After considering the underlying facts in relation to the statutory elements of the crimes as required by Fanning, we determine that the crimes of conspiracy to manufacture methamphetamine under K.S.A. 2006 Supp. 65-4159 and K.S.A. 2006 Supp. 21-3302 and use of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(3) are not identical.
B. Manufacture of Methamphetamine
An application of the statutoiy elements of manufacture of methamphetamine to the facts of this case results in the following elements that must be proved:
1. That the defendant manufactured a controlled substance known as methamphetamine;
2. That the defendant did so intentionally.
In this case, the State pursued an aiding and abetting theory for the charge of manufacturing methamphetamine. In State v. Smolin, 221 Kan. 149, Syl. ¶ 1, 557 P.2d 1241 (1976), our Supreme Court recognized that “[o]ne who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.”
As set forth above, an application of the elements of the use of drug paraphernalia to manufacture methamphetamine under K.S.A. 2006 Supp. 65-4152(a)(3) would require the State to prove the following elements:
1. That the defendant knowingly used drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell, or distribute methamphetamine. See PIK Crim. 3d 67.17(l)(c).
The elements of these two crimes seem identical. For the crime of manufacturing methamphetamine, the State must prove that the defendant intentionally manufactured methamphetamine. For the crime of use of drug paraphernalia to manufacture methamphetamine, the State must prove that the defendant knowingly used drug paraphernalia to manufacture methamphetamine. Although the use of drug paraphernalia language is absent from the crime of manufacturing methamphetamine, it is implicit in the manufacturing element of the crime. In order for a person to manufacture methamphetamine, he or she must use drug paraphernalia in the manufacturing process.
In this case, when Roberts, Walter, and Karen were arrested on March 15, 2005, methamphetamine and various items used to manufacture methamphetamine were discovered in Roberts’ truck. Roberts, Walter, and Karen admitted that methamphetamine had been manufactured on Atchison’s property on March 15, 2005. Describing the manufacturing process, Karen testified that she would get water, would help crush pills, and would observe the “gassing” process. Karen testified that she and Walter had purchased cold pills, batteries, and starter fluid that were used in the cook on March 15, 2005.
Based on the facts of this case, the elements of the charge of manufacture of methamphetamine resulted in the State proving that drug paraphernalia had been knowingly used to manufacture methamphetamine. Under these circumstances, the crime of manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159(a) includes conduct that is identical to the conduct included in use of drug paraphernalia to manufacture methamphetamine under K.S.A. 2006 Supp. 65-4152(a)(3). When considering the underlying facts in relation to the statutory elements as required by Fanning, we determine that the offenses are identical for sentencing purposes. In short, when two criminal offenses are the same for findings in relation to the statutory elements, they must be the same for purposes of sentencing.
Moreover, as a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Never theless, the rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006). Based on the plain meaning of the wording of the statute, we must conclude that manufacture of methamphetamine under K.S.A. 2006 Supp. 65-4159(a) is identical to the use of drug paraphernalia with the intent to manufacture a controlled substance under K.S.A. 2006 Supp. 65-4152(a)(3) under the facts of this case. Accordingly, Spangler s sentence for manufacturing methamphetamine should be vacated, and she should be resentenced to a severity level 4 felony.
Convictions for manufacture and possession of methamphetamine and possession of drug manufacturing paraphernalia affirmed; conviction for conspiracy to manufacture methamphetamine reversed; sentence for manufacture of methamphetamine vacated; and case remanded for resentencing on the manufacture conviction as a severity level 4 felony. | [
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Elliott, J.:
Daniel Yrigolla and Lawrence E. Ortiz, Jr., appeal the trial court’s order denying their motions to expunge their arrest records. Both, defendants claim the trial court erred in ruling K.S.A. 2006 Supp. 21-4619(b), containing a 5-year waiting period for filing a petition for expungement, applied to their cases instead of K.S.A. 2006 Supp. 22-2410, which has no waiting period. We affirm.
The trial court ruled K.S.A. 2006 Supp. 21-4619(b) applied because both defendants were arrested and charged with a severity level 3 drug crime and subsequently placed on diversion. The trial court also ruled K.S.A. 2006 Supp. 22-2410(c)(4) applies only to expungement of arrest records where (1) a person was arrested due to mistaken identity, (2) die statute of limitations had run and the person could not be prosecuted for the crime for which he or she was arrested, or (3) die State simply declined to prosecute the person for the crime for which arrest was made.
Interpretation of a statute is a question of law over which we enjoy unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). And when a statute is plain and unambiguous, we must respect die intent of the legislature as expressed. 275 Kan. at 330.
K.S.A. 2006 Supp. 21-4619(a)(2) provides:
“Except as provided in subsection (b) and (c), any person who has fulfilled die terms of a diversion agreement may petition the district court for the expungement of such diversion agreement and related arrest records if three or more years have elapsed since the terms of the diversion agreement were fulfilled.” (Emphasis added.)
Subsection (b) of the statute states:
“Except as provided in subsection (c), no person may petition for expungement until/ioe or more years have elapsed since the person satisfied . . . the terms of a diversion agreement ... if such person was convicted of . . . any felony ranked in severity levels 1 through 3 of the drug grid.” (Emphasis added.)
Subsection (c) of the statute lists crimes that if convicted of, a person can never have expunged from his or her record.
On the other hand, K.S.A. 2006 Supp. 22-2410(a) states any “person who has been arrested in this state may petition the district court for the expungement of such arrest record.”
Subsection (c) of the statute lists the bases on which a district court can grant a petition for expungement pursuant to K.S.A. 2006 Supp. 22-2410 as follows:
“At the hearing on a petition for expungement, the court shall order the arrest record and subsequent court proceedings, if any, expunged upon finding: (1) The arrest occurred because of mistaken identity;
“(2) a court has found that there was no probable cause for the arrest;
“(3) the petitioner was found not guilty in court proceedings; or
“(4) the expungement would be in the best interests of justice and (A) charges have been dismissed; or (B) no charges have been or are likely to be filed.”
The historical background of both of the above quoted statutes shows the legislature intended for K.S.A. 2006 Supp. 21-4619(b) to apply to petitioners for expungement resembling the situation of the defendants here.
K.S.A. 21-4619 was enacted in 1978 and in its original form did not allow for the expungement of arrest records. L. 1978, ch. 120, sec. 28; see Minutes, Senate Judiciary Committee, January 28, 1998 (S.B. 482); State v. Haug, 237 Kan. 390, 699 P.2d 535 (1985).
In Haug, the trial court, interpreting K.S.A. 21-4619, granted Haug’s request to expunge his diversion agreement along with his related arrest record and complaint. In granting the petition, the trial court reasoned that since the legislature gave courts the power to expunge convictions under the statute, the legislature must have intended for the courts to have power to expunge diversion agreements and arrest records.
The Supreme Court reversed Haug holding the trial court exceeded the scope of K.S.A. 21-4619 when it expunged Haug’s di version agreement and arrest records; the statute clearly granted the power only to expunge convictions. 237 Kan. at 392.
The Haug court concluded its opinion by stating: “We recognize there are substantial philosophical arguments supporting the position of the defendant and that perhaps expungement of diversion records would serve a valid public purpose. However, that decision must be left to the legislature which has not, as yet, authorized such action.” 237 Kan. at 393.
In 1998, the legislature passed Senate Bill 482 amending K.S.A. 21-4619. L. 1998, ch. 131, sec. 5. Then District Judge Marla Luckert, as chair of the Judicial Council Criminal Law Advisory Committee, testified in support of S.B. 482. Judge Luckert testified that section 5 of the bill “[cjlarifies that diversion agreements and proceedings resulting in diversion agreements may be expunged. There is also clarification that the records which became sealed are to include the records of arrest.” (Emphasis added.) Minutes, Senate Judiciary Committee, January 28, 1998 (S.B. 482), attachment 1 at 2-3.
Section 5 of the bill amended subsection (a)(2) in K.S.A. 2006 Supp. 21-4619. The language of section 5 carries out the legislature’s intent as indicated by Judge Luckert’s testimony of allowing people who have successfully completed diversion a way to expunge their diversion agreement and any related arrest records.
The passage of S.B. 482 also brought forth the enactment of K.S.A. 2006 Supp. 22-2410. See L. 1998, ch. 131, sec. 3. Judge Luckert’s testimony concerning the purpose of section 3 of the bill shows the legislature, by passing the statute, did not intend for it to be applied to individuals who were rightly arrested and not convicted of a crime solely because they entered into a diversion agreement with the State.
Judge Luckert testified as follows:
“Ironically, a procedure has been in place to expunge records of a conviction. Yet, the individual who was found not guilty, who was arrested but never charged or who was wrongfully arrested did not have the ability to remove the records of the proceedings from public view. The committee heard several stories of individuals who had been arrested because of misidentification and who had lingering concerns that some public records remained which could cloud the person’s otherwise good name.” Minutes, Senate Judiciary Committee, January 28,1998 (S.B. 482), attachment 1.
The first three bases for granting expungement under K.S.A. 2006 Supp. 22-2410(c) clearly contemplate situations where an individual was either wrongly arrested or, subsequent to the arrest, found not guilty and, thus, justified in seeking the immediate expungement of that arrest.
Admittedly, the fourth basis is rather vague and gives a greater amount of discretion to a court in determining whether to expunge an arrest record. But there is ample reason to conclude that K.S.A. 2006 Supp. 22-2410(c)(4)(A) does not apply to individuals who were charged with a crime but because of their successful completion of a diversion agreement the charges against them were later dismissed.
Judge Luckert’s testimony about the statute’s purpose clearly shows the legislature, by passing section 3 of S.B. 482, intended for K.S.A. 2006 Supp. 22-2410 to provide relief to relatively innocent arrestees — people who were arrested but, due to a variety of reasons (diversion not being one of them), were not convicted of a crime. Because subsections (c)(1), (2), and (3) of K.S.A. 2006 Supp. 22-2410 apply to such arrestees, we hold that the applicability of subsection (c)(4)(A) is likewise limited to arrestees whose situation resembles those described in the three preceding situations.
Further, when the legislature enacted S.B. 482, amending K.S.A. 2006 Supp. 21-4619 and creating K.S.A. 2006 Supp. 22-2410, it provided two different procedures for expunging arrests.
When a conflict exists between a statute dealing generally with a subject and another statute dealing specifically with a phase of it, the specific statute controls unless legislative intent clearly indicates otherwise. State v. McAdam, 277 Kan. 136, 146, 83 P.3d 161 (2004).
As explained previously, K.S.A. 2006 Supp. 22-2410 applies to the expungement of arrests which did not result in a conviction, and K.S.A. 2006 Supp. 21-4619(a)(2) or (b) (depending on the crime charged) applies to the expungement of arrests which did not result in a conviction due to the arrestees’ entering into a diversion agreement with the State.
Because K.S.A. 2006 Supp. 21-4619 specifically references defendants’ situation, it must be applied to their petitions for expungement.
Generally, there is a 3-year waiting period after completing diversion before a person can petition for expungement. K.S.A. 2006 Supp. 21-4619(a)(2). But K.S.A. 2006 Supp. 21-4916(b) states that if someone is convicted of, inter alia, a severity level 3 drug felony, that person must wait 5 years before petitioning for expungement.
A person cannot be convicted of the same crime that was the subject of a successful diversion agreement entered into with the State. When a person is charged with a crime and subsequently enters into a diversion agreement and successfully completes the diversion, the criminal charge is dismissed with prejudice; the charge does not become a conviction on that person’s record. See K.S.A. 22-2909.
It appears to us the drafters of S.B. 482 simply overlooked this fact because the bill’s only change to K.S.A. 2006 Supp. 21-4619(b) was the addition of the phrase “the terms of a diversion agreement.” See L. 1998, ch. 131, sec. 5. The addition of this phrase shows the drafters’ intent to make the subsection applicable to the expungement of diversion agreements concerning crimes listed within K.S.A. 2006 Supp. 21-4619(b).
The drafters should have added to K.S.A. 2006 Supp. 21-4619(b) the phrase “or charged with” after the phrase “convicted of’ and before the list of applicable crimes. Nonetheless, we shall read subsection (b) as if the phrase was included within it, in accordance with State ex rel. Morrison v. Oshman Sporting Goods Co., Kansas, 275 Kan. 763, 69 P.3d 1087 (2003).
In Morrison, the Supreme Court held that where practicable, it is the duty of the court to reconcile different statutory provisions in order to make them consistent, harmonious, and sensible. “The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” (Emphasis added.) 275 Kan. at 768.
Given our view of the legislature’s intent, it would make litde or no sense to hold that K.S.A. 2006 Supp. 21-4619(b) only applies to people convicted of crimes enumerated within the subsection. When read together, subsections (a)(2) and (b) of K.S.A. 2006 Supp. 21-4619 clearly contemplate the expungement of diversion agreements and related arrest records in situations where no conviction would exist.
In the present case, because the defendants were arrested for, charged with, and entered into diversion agreements in order to avoid conviction of severity level 3 drug felonies, K.S.A. 2006 Supp. 21-4619(b) applies to their petitions for expungement.
Based on that statute, the trial court correcdy denied defendants’ petitions for expungement because 5 years had not passed since defendants satisfied the terms of their diversion agreements.
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The opinion of the court was delivered by
Schroeder, J.;
This is a wrongful death action filed January 9, 1959, by a father for the death of his eleven-year-old son on November 25, 1958. The case has previously been before this court on appeal in Shank v. Peabody Cooperative Equity Exchange, 186 Kan. 648, 352 P. 2d 41, testing the sufficiency of the amended petition to state a cause of action. (See, also, Brock, Administrator v. Peabody Cooperative Equity Exchange, 186 Kan. 657, 352 P. 2d 37.)
After issues had been joined by the pleadings upon return of the case, the trial court overruled a motion of the defendant to dismiss the action. The case is now here on appeal from such ruling. The controlling question is whether such order of the trial court is appealable.
The chronology of events in the lower court may be stated briefly as follows:
Sometime after perfecting the first appeal to this court Ernest Shank, the original plaintiff below, died intestate. Thereafter, this action was revived in the name of Joseph E. Rrock, as the administrator of such decedent’s estate, and later,, on proper application, such fiduciary was substituted as appellant for. purposes of proceeding with the first appeal in this court. The revivor of the action in the name of Joseph E. Brock and his substitution as party plaintiff in the action was made without objection by the appellant herein.
On May 14, 1960, the decision in the previous appeal to this court, holding the amended petition sufficient to state a cause of action, was announced. Thereafter, on May 19, 1960, the administrator filed his supplement to the amended petition.
On June 29, 1960, the defendant (appellant) answered.
On July 9,1960, the trial court sustained the plaintiff’s (appellee’s) motion to strike portions of the defendant’s answer.
On September 1, 1960, the defendant’s motion for an indefinite continuance was overruled.
On October 24, 1960, the defendant filed an amended answer, which the plaintiff again successfully attacked by a motion to strike.
On December 23, 1960, the plaintiff filed his reply.
It should be noted the 25th day of November, 1960, was two years from the date of accrual of the cause of action for wrongful death.
After the issues were joined, as aforesaid, and on the 4th day of January, 1961, the defendant filed a pleading denominated “Motion to Dismiss” asserting as grounds therefor: First, that Anna Marie Shank, sister of the dead boy, was not one of his next of kin and was not entitled to proceed directly or indirectly against the defendant; and second, that the boy’s father, the original plaintiff, was his only next of kin and is now dead, and that the father’s administrator has no claim against the defendant.
It is from an order of the trial court overruling this motion that the defendant has appealed.
The rule has repeatedly been stated that a denial of a motion to dismiss an action made by the defendant, is not one of the orders of the district court from which error lies to the Supreme Court until the final disposition of the action in the court below. (Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571; In re Estate of Sims, 182 Kan. 374, 321 P. 2d 185; Mayfield v. Hesston Mfg. Co., 188 Kan. 765, 365 P. 2d 1107; Lee v. Johnson, 186 Kan. 460, 350 P. 2d 772; and Klepikow v. Wilson, 189 Kan. 66, 366 P. 2d 800.)
Although the appellant concedes the foregoing rule, he contends the court is not confronted with a motion to dismiss but a demurrer grounded upon plaintiff’s want of capacity to sue. If this be so, the time for lodging the demurrer expired long before it was filed.
G. S. 1949, 60-707, provides:
“When any of the defects enumerated in section 93 [60-705] do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or answer the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.” (Emphasis added.)
Upon the record here presented, even on the appellant’s theory it is quite clear the sole infirmity of the amended petition as supplemented is want of plaintiff’s legal capacity to sue. The first appeal determined that the amended petition stated facts sufficient to constitute a cause of action, and the only change made since then was the substitution of parties plaintiff upon revivor of the action. It is futile to say that because the petition shows on its face the administrator has no legal capacity to sue, it accordingly does not state facts sufficient to constitute a cause of action. The provisions of G. S. 1949, 60-705, enumerating the statutory grounds for a demurrer, specifically separate these two grounds: “Second, that the plaintiff has no legal capacity to sue” and “Fifth, that the petition does not state facts sufficient to constitute a cause of action.” There would have been no occasion for the legislature to enumerate the “Second” ground unless it was designed to have utility or purpose.
While the appellant relies upon Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010, the position is not taken that we are here confronted with a question of the court’s jurisdiction.
The exceptions indicated in 60-707, supra, are therefore not applicable to the instant case. Under this section of the code of civil procedure many cases have held that a waiver results as to defect of parties if no timely objection is taken either by demurrer or, if the defect does not appear upon the face of the petition, by answer. (Thomas v. Reynolds, 29 Kan. 304; Coulson v. Wing, 42 Kan. 507, 22 Pac. 570; Hurd v. Simpson, 47 Kan. 245, 26 Pac. 465; Maelzer v. Swan, 75 Kan. 496, 89 Pac. 1037; Lawrence Nat'l Bank v. Howard, 125 Kan. 85, 262 Pac. 561; and Federal Savings & Loan Ins. Corp. v. Hatton, 156 Kan. 673, 135 P. 2d 559.)
We think the facts in this case present a clear situation in which the doctrine of waiver should be invoked. It is apparent the appellant was pursuing dilatory tactics until the statute of limitations had run, attempting by the motion here under consideration to defeat the appellee at the procedural stage of the case.
The way was open to the appellant at several stages of the proceeding, all well within the period of limitations, to raise the objection as to defect of parties. When the plaintiff Shank died in January, 1960, the case was on appeal to the Supreme Court, and there were still ten months left before his cause of action expired by limitation. The appellant might have objected, rather than consented, to the revivor. It might have objected or protested to the substitution of the administrator as plaintiff in this court when the matter was pending on appeal. When the case went back to the trial court, with the administrator as plaintiff, the appellant could have lodged a demurrer to the petition upon the ground of defect of parties, which did not exist when it originally demurred. Next, the objection could have been taken by answer, filed in June, 1960, or by the amended answer, filed in October, 1960. (See, Moore v. State Highway Commission, 188 Kan. 338, 362 P. 2d 646.)
If the administrator “has no claim against this defendant,” as set forth in the “Motion to Dismiss” presently under consideration, that situation existed from and after April, 1960, long before January, 1961, when it was made the subject of objection for the first time, after a reply was filed and the issues made up.
We deem it unnecessary to consider the first ground set forth by the appellant in its “Motion to Dismiss” because Anna Marie Shank is not a party to the action.
Counsel for the appellant must have recognized when the appellant’s “Motion to Dismiss” was filed that the time for attacking the petition by demurrer had long passed, because language historically used and appropriate to a demurrer was not used.
We conclude if the pleading under consideration was designed as a motion to dismiss, an order overruling it is not appealable, but if designed as a demurrer in camouflage, it comes too late and is unavailing to the appellant in this case.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Robb, J.:
Appellant and cross-appellee here was defendant below in an action on a family combination automobile insurance policy No. ACF 9542 covering three automobiles for the period from April 6, 1959, to April 6, 1960, and the appeal is from the trial court’s judgment in favor of appellee and cross-appellant in the amount of $1,800 based on the jury’s verdict.
The cross appeal is from the trial court’s judgment denying recovery of attorney fees by plaintiff from defendant under G. S. 1959 Supp., 40-256.
On April 6, 1959, defendant, a Kansas corporation, by and through its agent, S. B. North, of Coffeyville, Kansas, issued a family combination automobile insurance policy to Alva Lindesmith covering three automobiles. At the time of the issuance of the policy, plaintiff, son of Alva Lindesmith, was the sole operator of a 1951 Oldsmobile 98, four door sedan (indicated as car No. 3 in the policy) but according to a rider attached to the policy on July 25, 1959, the Oldsmobile was replaced by a 1953 Ford V-8 country sedan station wagon. On or about April 20, 1959, plaintiff purchased a $1,900 house trailer which information was given to his father with request that he have the trailer insured along with the 1953 Ford. On May 2, 1959, plaintiff’s father told defendant’s agent North about the trailer and in a letter dated the same day North wrote defendant’s home office, in pertinent part, as follows:
“You mentioned that the 1953 Oldsmobile and the 1948 Chevrolet were properly rated but the 1951 Oldsmobile to be properly rated should be rated at Class 2A. The assured has advised us that Lawrence Lindesmith, son, age 20, does construction work and goes from one place to another but spends some of the time here in Coffeyville. He states that Lawrence has a trailer house and he inquired as to the fact if there is liability coverage on it as it is hauled by the 1951 Oldsmobile.
“We would appreciate, if you would advise us on this matter and also issue an endorsement and whatever is needed to properly class these cars.” (Our emphasis.)
At the time this request was sent in to the company an endorsement bearing the following title was already attached to the policy:
“Automobile Liability and Collision Insurance Rating Statements “Private Passenger Automobiles Owned by Individuals “(Combined Rating Statements)”
The body of this endorsement contained the following provision as to Class 2A but no “X” appeared before it indicating that provision had been included in the basis for rating the original policy:
“Statement for Liability Class 2A or 2AF Rating “The applicant states that:
“the owners or principal operators of the automobile under 25 years of age are male and are married.”
Also attached to the original policy was another endorsement denominated “Family Combination” and bearing the title, “amendment of definition of ’owned automobile’.” This amended definition in part read:
“ ‘Owned Automobile’ means
“(d) with respect to Part III, a trailer ownership of which is acquired by the named insured during the policy period, provided
“(2) the company insures all trailers owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days following such date. . .
Sometime after defendant received North’s letter of May 2, 1959, a further endorsement was issued and attached to the family combination policy bearing the same number as did the original policy and the same effective date. The typed portion of that endorsement read as follows:
“In consideration of an additional Premium of $31.50, it is understood and agreed that Classification on Car 3 is amended to 2A.”
The father paid the additional premium of $31.50 in accordance therewith and nothing more took place until the accident on December 14, 1959, wherein the trailer was rolled over and destroyed to the extent that it had a value of only $50.00.
Pursuant to stipulation, a pretrial conference was held on September 30, 1961. Three exhibits were admitted: copy of North’s letter to defendant dated May 2, 1959, exhibit 1; copy of letter from the Kansas Claims Service to plaintiff’s counsel dated January 29, 1960, in which physical damage coverage was denied, exhibit 2; and the original policy of insurance, exhibit 3. Certain endorsements were lacking on the policy but a few days later the entire policy was delivered to the trial court. On October 14, 1960, that court announced it was holding as a matter of law that under the policy plaintiff was insured against loss by collision and that a jury would have to determine whether the trailer was damaged or destroyed by collision and the extent thereof. The case was later submitted to a jury in accordance with that determination.
Defendant moved the court for a directed verdict in favor of defendant, which motion was by the trial court overruled. Defendant then requested five instructions which were not given. In view of its decision on the pretrial conference that under the policy plaintiff was insured against loss by collision, the court properly instructed the jury and the jury returned a verdict for plaintiff in the amount of $1,800 which verdict was approved by the trial court and judgment rendered accordingly.
Defendant timely filed its appeal from the judgment and orders of the trial court. The primary and controlling question before us is whether the trailer was covered by this family combination automobile policy considering the particular endorsements that were attached thereto and the circumstances under which they were attached. Appellant cites good authority in support of its contentions but careful reading of those cases shows they do not cover the situation or the type of policy we presently have before us. We think the matter was very well discussed in Harrison v. Farmers & Bankers Life Ins. Co., 163 Kan. 277, 181 P. 2d 520, 171 A. L. R. 751, where a typewritten rider, or endorsement, on a life insurance policy was held to prevail over the printed provisions of the policy. While in the Harrison case the rider, or endorsement, precluded the beneficiary from receiving a lump sum payment of the proceeds from the policy, and it was so held by this court, nevertheless the general rule was there applied that a rider, or endorsement, prevails over irreconcilable printed provisions of an insurance policy. From the very nature of the heading of our present family combination automobile policy, which heading was repeated in the subsequent transactions between the insured and the insurer, it cannot be said that plaintiff’s father, or perhaps his mother if she lived with his father, were the only ones insured under the policy. In other words, the father, mother, and the two sons were all insured because the evidence and the record pointed to the fact there were three cars covered, and only one car was actually owned by the father although he had the registered title to all three cars.
Other reasons are argued as to why Larry is a proper party plaintiff but in view of all that has been stated herein, we conclude that under this family combination automobile insurance policy Larry, as an insured thereunder, was a proper party because of the endorsements attached to the policy, which must prevail over the printed provisions of the original policy form, and the circumstances set out herein. We are, therefore, left with no other alternative than to conclude the trial court did not err in holding as a matter of law that the policy covered the house trailer.
In regard to the cross appeal, we have considered plaintiff’s request for allowance of attorney fees, as provided in G. S. 1959 Supp., 40-256, and hold that the trial court did not err in refusing to allow such attorney fees for the reason it does not appear from the evidence that defendant refused without just cause or excuse to pay the full amount of the loss.
Judgment affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by David Koppel, a resident and property owner of the city of Fairway, and T. R. Heath and Eugene F. Engel, property owners and residents of the adjoining city of Roeland Park, to determine the validity of an ordinance passed by the City of Fairway under which a tract of land was rezoned from residential to retail business district classification.
. The allegations of the petition and the agreed facts pertaining thereto are substantially as follows:
The J. C. Nichols Company is the owner of a triangular, twenty-three-acre tract lying in the northwest corner of the city of Fairway. The tract is bounded on the north by Fifty-fifth street, which is likewise the boundary between the cities of Fairway and Roeland Park, on the southeast by U. S. Highway 50 and on the west by the city of Roeland Park. This tract is presently zoned for residential purposes. The area surrounding the tract is all residential property and zoned for that purpose. Proceedings were initiated to amend the zoning ordinance to permit the use of the tract, excepting a strip 100 feet in width on the southeast boundary, for commercial purposes. Notice was published under G. S. 1949, 12-708. Protests were filed by more than twenty percent of the owners of frontage across the street north of the tract and the owners of the abutting lots on the west, all in Roeland Park. The protests on the southeast, filed by residents of Fairway, were less than twenty percent of the owners of the frontage.
Pursuant to the published notice a hearing was had on the proposed change. Protesters appeared and were heard. The governing body of the city of Fairway ignored the protests of the property owners located on the north and west in the city of Roeland Park, and the ordinance rezoning the tract for commercial purposes was enacted by the council by a five to three vote, which was less than a four-fifths vote. Plaintiffs then filed this action to determine the reasonableness of the ordinance under the provisions of G. S. 1949, 12-712. From an order overruling defendant city’s demurrer to the plaintiff’s petition, the city appeals.
The determinative question is the effectiveness of the protests filed by the owners of property located outside the city of Fairway. If the protests were effective, then the amendment was not legally enacted and the other questions are premature. Conversely, if the protests should be ignored because of the location of the protesters’ property, then the ordinance, having been passed by a clear majority of the governing body in the exercise of the power specifically conferred, is entitled to the benefit of the presumption of validity. In substance, the city’s contention is that inasmuch as the protesters of more than twenty percent of the property fronting across the street to the north and west of the tract proposed to be rezoned are outside the city of Fairway the limitations of section 12-708 do not apply and that the majority vote of the council is sufficient to enact the amending ordinance.
To answer the question presented requires a review of our statutes. The power and authority to enact and amend zoning ordinances is conferred on cities by G. S. 1949, Ch. 12, Art. 7. Section 12-707 provides in part that the governing body of any city is authorized by ordinance to divide such city into zones or districts and to regulate and restrict the location of trades and industries. Section 12-708 imposes certain limitations on the conferred power and sets out the conditions to be observed in the enactment and amendment process. The section, in pertinent part, provides:
“If, however, a protest against such amendment, supplement, or change be presented, duly signed and acknowledged by the owners of twenty percent or more of any frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately in the rear thereof, or by the owners of twenty percent of the frontage directly opposite a frontage proposed to be altered, such amendment shall not be passed except by at least four-fifths vote of the council or board of commissioners.”
Municipalities are politically subordinate subdivisions of the state government and legislatures in conferring powers on them may impose limitations on these powers. (2 McQuillin, Municipal Corporations, 3 Ed., § 4.04.) Provision is generally made for protests to zoning changes by affected property owners or a certain percentage of them. This provision has been described as a limitation on the general powers of the municipal legislative body and required to be strictly enforced. (8 McQuillin, Municipal Corporations, 3 Ed. Rev., § 25.248.) Zoning ordinances, being in derogation of the right of private property, should be liberally construed in the property owner’s favor, and where exceptions appear they are liberally construed in favor of the property owner. (8 McQuillin, Municipal Corporations, 3 Ed. Rev., § 25.72.) It may be requisite to an amendment of a zoning ordinance, particularly where a certain percentage of affected property owners protest, to require a unanimous vote of the zoning commission or the municipal legislative body approving the amendment. A requirement of this character has been ruled not an unlawful delegation of legislative power to property owners. (8 McQuillin, Municipal Corporations, 3 Ed. Rev., § 25.244.) A common provision, following that of the standard zoning act, is that if an ordinance constitutes an attempt to amend or change the regulations and district established by a previous ordinance, a protest may be filed by specified owners or a prescribed percentage of them, and, in this event, a unanimous, three-fourths or other required vote of the city council is necessary for the passage of the ordinance. A provision of this character is not invalid as an unlawful delegation of legislative authority to property owners.
A statute may provide a standard for measuring the percentage of protests against a zoning change, and if a statute provides a single standard for such a purpose, courts cannot create varying standards of measurements even to meet conditions not foreseen by the legislature. (8 McQuillin, Municipal Corporations, 3 Ed. Rev., § 25.248.)
Plaintiffs do not question the city’s right to amend a zoning ordinance but contend that if such is done the city must strictly conform to the restrictions and limitations placed upon it by the enabling statute, and that in view of the protests filed by the plaintiffs the city is required under the statute to pass the ordinance by a four-fifths majority. The general rule is that the enactment of a zoning ordinance must strictly pursue the procedure provided by the statute enabling the city to zone. (8 McQuillin, Municipal Corporations, 3 Ed. Rev., § 25.58.)
The defendant city contends that under section 12-708 only those persons within the city of Fairway may protest the change in the zoning ordinance without regard to the effect of its zoning ordinances on adjoining frontage outside the municipality. Such is not the wording of our statute. Section 12-708 makes no requirement of residency or location of property other than that it be frontage property to that property proposed to be altered or changed. It clearly appears that the legislative intent of the statute is to protect all designated property affected, whether located within or without the city adopting the changed zoning ordinance. It is true that even though two of the plaintiffs are located in an area just beyond the boundaries of the defendant city of Fairway they have, as abutting and frontage owners to the city, benefited from the past zoning ordinance and are now directly and harmfully affected by the rezoning ordinance. As property owners they are entitled to the enjoyment of their property.
No case precisely in point has been found' which has considered a protest statute such as our statute; however, in an analogous case of Cresskill v. Dumont, 15 N. J. 238, 104 A. 2d 441, three adjoining municipalities joined with their residents and with the residents of the defendant borough of Dumont in seeking to set aside an amendment to the zoning ordinance of the borough of Dumont. Chief Justice Vanderbilt, in speaking for the court, stated:
“The appellant spells out from the language of these constitutional and statutory provisions that the responsibility of a municipality for zoning halts at the municipal boundary lines without regard to the effect of its zoning ordinances on adjoining and nearby land outside the municipality. Such a view might prevail where there are large undeveloped areas at the borders of two contiguous towns, but it cannot be tolerated where, as here, the area is built up and one cannot tell when one is passing from one borough to another. Knickerbocker Road and Massachusetts Avenue are not Chinese walls separating Dumont from the adjoining boroughs. At the very least Dumont owes a duty to hear any residents and taxpayers of adjoining municipalities who may be adversely affected by proposed zoning changes and to give as much consideration to their rights as they would to those of residents and taxpayers of Dumont. To do less would be to make a fetish out of invisible municipal boundary lines and a mockery of the principles of zoning. There is no merit to the defendant’s contention.”
See also Hamelin v. Zoning Board of the Borough, 19 Conn. Sup. 445, 117 A. 2d 86.
The next question is: Do the plaintiffs have a right to maintain this action? Section 12-712 of the statute provides that any ordinance or regulation provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance or regulation determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city. Their property having been affected by the ordinance, plaintiffs have a statutory right and are proper parties to bring this action.
In view of what has been said, the trial court did not err in overruling the defendant city’s demurrer to plaintiffs’ petition. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an action in which plaintiffs (lessors) seek to enjoin defendants (lessees) from the use made of the leased premises. The district court denied the injunction and plaintifEs have appealed.
On April 1, 1957, the plaintiffs leased to the defendants certain land, then outside the limits of the City of Lawrence, Kansas. The lease provided:
“Witnesseth that parties of the first part in consideration of payment of rents and taxes being paid by parties of the second part and in further consideration of the construction of a building for car washing and car servicing purposes does hereby grant, demise, and lease to parties of the second part the following property to wit: (Description)”.
The lease was for a primary term of seven years with the right of the lessees to extend it for two five-year periods “under the same terms herein set out except that parties of the second part (lessees) shall not be required to make any further improvements on the property.”
The lease further provided in part as follows:
“It is further agreed between the parties that the parties of the second part shall construct a car washing building at their own expense upon said land described above and this to be completed 120 days from the date of this agreement. . . . Parties of the second part shall comply to the specifications agreed upon by parties of the first part and parties of the second part. It is further agreed between the parties that parties of the second part shall have the right to construct any additions to such car washing building at their own expense nnd to their own specifications.”
The lessees were to pay all taxes after the execution of the lease and fifty dollars per month rent commencing April 1, 1959. In the event the lessees surrendered possession, “then all buildings and improvements placed thereon by parties of the second part shall remain and be and become property of parties of the first part.”
The lease also provided:
“It is further agreed between the parties that parties of the second part will not engage in any kind of cafe or restaurant business upon this property described above during the life of this lease or any extension thereof.”
Other facts material to the controversy may be summarized as follows:
A car washing building was constructed on the leased property, and car washing was started on June 8, 1957. The building was sixty-five feet in length and twenty feet in width. It consisted of two concrete block walls running the length of the building, a concrete floor and a partial roof to support the walls. The ends of the building were not enclosed. Recause of open structure of the building car washing ceased when the weather got cold in the fall of 1957.
Sometime during the following winter the leased land was taken into the City of Lawrence. In March of 1958 the lessees obtained a permit to convert the building from a car wash to a launderaide business and started to enclose the structure. On April 4, 1958, lessors notified the lessees that if the work continued appropriate legal action would be taken. The notice was ignored and the building was completed for a launderaide.
On April 16, 1958, after most of the additions were completed, plaintiffs brought this action to enjoin the defendants from reconstructing and remodeling the building for any purpose other than that of car washing and car servicing and from using the building for any other purpose. A restraining order or temporary injunction was not requested. The building was completed in its entirety before the case was tried.
Following the trial the district court, in a memorandum decision, stated the issues and concluded as follows:
“. . . Actually there are only two issues which must be resolved and they are: (1) Should the defendants be required to tear down and remove the improvements and additions which have been made to the original car wash structure; and (2) are defendants prohibited under the terms of the lease from operating any business except a car wash and car servicing business on the leased premises, or, stated in another way, are plaintiffs entitled to have defendants enjoined from operating any business except a car washing or car servicing business on the premises leased to them by plaintiffs?
“Inasmuch as the lease gives defendants the right to make such additions to the original structure as they desire and since any such addition may be made under the lease, to defendants’ own specifications, it is difficult to see how plaintiffs can contend that what defendants have done amounts to a commission of waste. If plaintiffs had intended to retain control over the future character of the structure which defendants were required to build as part of the consideration for the lease, they should have reserved such control rather than giving defendants a virtual blanket authority to build such additions as they desired to their own specifications.
“The only business which the lease prohibits defendants from engaging in is the restaurant business. If plaintiffs had wanted to restrict the use of the leased premises to the operation of a car wash and car servicing business, they should have inserted such a clause in the lease. The wording of the lease in question would not in my judgment prohibit defendants from engaging in the launderaide business.”
Judgment was entered in accord with the foregoing conclusions.
After an extended examination of the record and careful consideration of all contentions advanced by counsel for the respective parties we are constrained to agree with the conclusions and judgment of the district court.
The lessors were interested in the construction of a building meeting certain specifications and dimensions. The improvement was part of the consideration for the lease. The lessees were given the unlimited right to make additions to the structure. Lessees were specifically restricted from using the premises to engage in any kind of cafe or restaurant business. There was no other restriction as to use.
It would also appear that enclosing the ends and putting a roof on a structure is an addition. There is no claim here of waste or injury to the reversion. Indeed, the entire controversy centers on the use of the premises.'
Neither party is now contending that the provisions of the lease are ambiguous. Under similar circumstances in Smith v. Holmes, 181 Kan. 438, 312 P. 2d 228, we said:
“Neither party contends the provisions of the lease are ambiguous, consequently, the rule with respect to the binding effect of express terms of a contract as applied in Anderson v. Rexroad, 175 Kan. 676, 266 P. 2d 320, is applicable here. There it was said:
“ ‘. . . The established rule is that the intention of the parties and the meaning of a contract are to be deduced from the instrument where its terms are plain and unambiguous; that when the language is clear and unequivocal the meaning must be determined by its contents alone; that words cannot be read into a contract which import an intent wholly unexpressed when it was executed; and that the court may not make an agreement for the parties which they did not make for themselves (See West’s Kansas Digest, Contracts, § 143-Hatcher’s Kansas Digest [Rev. Ed.], Contracts, §40) . , .’ (1. c. 679.)” (p- 441.)
The general rule that leases are to be interpreted from “four corners” and that all of the language used anywhere in such an instrument must be considered, construed and harmonized, is well-established. (See Smith v. Russ, 184 Kan. 773, 778, 339 P. 2d 286, and cases’ there cited.)
The instant lease specifically prohibits the use of the premises for a cafe or restaurant business. There would be no justification for the court reading into the lease other restrictions as to use. They should have been stipulated if intended.
It is also the general rule, with certain reasonable exceptions, that where a tenant is not restrained by the terms of the lease the premises may be used for any lawful purpose. (Asling v. McAllister-Fitzgerald Lumber Co., 120 Kan. 455, 244 Pac. 16, 46 A. L. R., 1127.)
The rule just stated is discussed in 32 Am. Jur., Landlord and Tenant, §§ 203,-204, pp. 190,191, where it is said:
“. . . Moreover, where the lease does not restrict the use of the premises, it may not be shown that there was an oral agreement of restriction; and it has been held that a lease which, when properly interpreted in view of an applicable custom, does not preclude the use of the premises for the sale of merchandise, cannot be varied by evidence of an extrinsic agreement by the lessee that the premises were to be used for the sale of shoes only.
“A provision in a lease authorizing the use of the premises for a specified purpose or stating that they are to be used for such a purpose is génerally regarded as permissive instead of restrictive, and does not limit the use of the premises by the lessee to such purposes, or impliedly forbid that they be used for a similar lawful purpose which is not injurious to the landlord’s rights or not otherwise expressly forbidden. There appears, however, to be authority to the contrary. (§ 203.)
“Where the words used in the lease are merely descriptive of the character of the premises, although indicating a particular use to which they might be adapted, the great weight of authority is to the effect that such words cannot be construed as a restriction upon the lessee, in 'his use of the property, to the distinctive use which the words may suggest. . . .” (§ 204.)
See, also, 2 A. L. R. 2d p. 1143, and annotataed cases pp. 1148 to 1155, incl.
Aside from what has been heretofore stated and held there is an additional reason why the judgment of the district court should not be disturbed in the case at bar. A large amount of discretion is permitted in the exercise of injunctive relief. Moreover, a strictly legal right will not be enforced by injunction contrary to equity and good conscience.
See Babb v. Rose, 156 Kan. 587, 134 P. 2d 655, which holds:
“Unless otherwise provided by statute a large measure of judicial discretion is recognized in the exercise of power to grant or refuse an injunction.” (Syl. f 2.)
See, also, Smith v. City of Kansas City, 167 Kan. 684, 689, 690, 208 P. 2d 233.
And see Atchison, T. & S. F. Rly. Co. v. Hamilton, 130 Kan. 685, 288 Pac. 560, a case where the court had under consideration a petition to enjoin the use being made of certain property, where it is stated:
“In 32 C. J. 29 the writer says:
“ ‘Except in cases where a statute gives an absolute right to an injunction, an injunction, whether temporary or permanent, cannot as a general rule be sought as a matter of right, but its granting or refusal rests in the sound discretion of the court under the circumstances and the facts of the particular case.’
“In Railway Co. v. Shriver, 101 Kan. 257, 258, 166 Pac. 519, this court said:
“ ‘Granting or refusing an injunction is a subject of equitable cognizance over which the district court has a large discretion, depending on all the facts and circumstances.’
“This rule has been applied in a number of instances where temporary injunctions have been granted. (Stoddart v. Vanlaninghan, 14 Kan. 18, Akin v. Davis, 14 Kan. 143; Conley v. Fleming, 14 Kan. 381; Olmstead v. Koester, 14 Kan. 463; Wood v. Millspaugh, 15 Kan. 14; Mead v. Anderson, 40 Kan. 203, 19 Pac. 708; State v. Telephone Co., 77 Kan. 774, 95 Pac. 391; Ramsay v. City of Oxford, 124 Kan. 713, 261 Pac. 572.)” (p. 689.)
In Harder v. Power Co., 95 Kan. 315, 148 Pac. 603, this court held:
“Whether a mandatory injunction requiring a restoration of the property to its former condition should be granted usually depends upon the consideration of the equities between the parties.” (Syl. f 1.)
One feature of the Harder case was quite similar to the case now being considered. There — as here — before the case was reached for trial the construction had been completed and no restraining order or temporary injunction had been requested. This court, at page 318 of the opinion, stated:
“Whether a mandatory injunction requiring the restoration of the property to its former condition shall be granted usually depends upon a consideration of die equities between the parties. (Gilmore v. Salt Co., 84 Kan. 729, 115 Pac. 541, 34 L. R. A., n. s., 48. See, also, cases cited in Note, 22 Cyc. 782; also Meyn v. Kansas City, 91 Kan. 29, 136 Pac. 898.)
“ ‘In all cases the court takes into consideration the relative inconvenience to be caused to the parties, and will refuse an injunction if it appears inequitable to issue it.” (22 Cyc. 783.)
“An injunction will not be issued even to enforce a strictly legal right where equity and good conscience does not require it. (Railway Co. v. Meyer, 62 Kan. 696, 64 Pac. 597.) . . .” (pp. 318, 319.)
Under the confronting facts and circumstances we are convinced that equity and good conscience should not require the tearing down and removal of the additions and improvements to the structure on the leased premises; that the record does not disclose that any injury will result to the lessors if the business of a launderaide is conducted in such structure; and that, after giving consideration to the equities between the parties, the trial court did not abuse sound judicial discretion in refusing to grant the plaintiffs injunctive relief.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from the district court’s order of March 31, 1961, overruling the defendants’ motion to vacate the alleged void portion of a judgment rendered June 7,1938, and to vacate the alleged void portions of a second judgment entered September 7, 1960, interpreting the effect of the former judgment. The basic question presented is whether an office budding owned by the plaintiff testamentary trustees under the will of Louise C. Murdock is exempt from taxation under either Article 11, Section 1 of the constitution of Kansas, or G. S. 1949, 13-1406. The plaintiff appellees concede that if the defendant appellants were not enjoined from assessing and taxing the building by the 1937 judgment as interpreted and applied to the property by the 1960 judgment, the property is not exempt and should be taxed as other real property.
In 1915 Louise C. Murdock died testate, a resident of the city of Wichita. Her will was duly admitted to probate and the estate was administered and closed according to law. The terms of the decedent’s will here pertinent were considered in Parkinson, Executor v. Murdock, 183 Kan. 706, 332 P. 2d 273, quoted on pages 706 and 707, and are incorporated herein by reference.
On November 7,1937, the district court entered an order establishing the trust and as a part of its judgment, found that the beneficial interest therein was vested in the cestui que trust, the city of Wichita. It also found that it was unable to reach a satisfactory conclusion whether the property was exempt from taxation, but believed there was sufficient probability of its exemption to justify the trustees in presenting the question for final determination.
The property in controversy and the principal asset of the decedent’s estate, is the Caldwell-Murdock office building in downtown Wichita, hereafter referred to as the building. At all times since the trust was vested in the cestui que trust, the trustees have operated the property as a commercial office building, renting space therein to commercial tenants, and after paying the necessary costs of operation and maintenance of the building and costs of administration of the trust, they have used the net proceeds for the purpose of purchasing works of art for the Roland P. Murdock Collection, owned by the city of Wichita.
On December 8, 1937, die trustees paid the first half of the 1937 taxes under written protest pursuant to G. S. 1935, 79-2005, and on February 8, 1938, they commenced an action against the then county treasurer and board of county commissioners of Sedgwick County to recover the first half of the 1937 taxes, and to enjoin the defendants from collecting the last half of the taxes due for that year. The protest attached to the petition stated that since the beneficial interest of the trust was vested in the city of Wichita, the taxes must necessarily be paid out of the income of the property and they must be paid by the city, hence, the building was exempt under that portion of G. S. 1935, 13-1406, which reads:
“Lands, buildings, money, debts due the city and all other property and assets belonging to the city shall be exempted from taxation, execution and sale.”
The protest further stated the building was exempt from taxation under that portion of Article 11, Section 1 of the constitution of Kansas, which reads:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes . . . shall be exempted from taxation.”
It is unnecessary to quote at length from the plaintiffs’ petition, but its allegations have been carefully considered and they disclose the fact that no mention was made of any taxes for any year except taxes for 1937 paid under protest in the amount of $2,695.56, and that,
“unless enjoined and restrained the defendants will compel the plaintiffs to pay the tax for the last half of the year 1937 . . . and that plaintiffs will suffer irreparable loss and damage unless the defendants are enjoined and restrained from collection of the taxes for the last half of the year 1937.” (Emphasis supplied.)
Relief beyond the taxes for 1937 was not prayed for, and the general prayer was “for such other and further relief as the Court may seem just and proper in the premises and for the costs of the action.” The defendants filed no answer, but the parties stipulated to the facts framing the issues for decision, which likewise made no reference to any taxes other than those for the year 1937.
On June 7, 1938, the district court entered its judgment on the petition and stipulation of facts and found “that the property . . . is exempt from taxation and that the prayer of the petition should be granted.” The judgment portion of the journal entry restrained the defendants from collecting ad valorem taxes on the property, including the last half of 1937, and directed them to repay the sum of $2,695.56 paid under protest. The court retained jurisdiction of the parties and the cause for the purpose of enforcing the decree.
No appeal was taken from that judgment and the building was removed from the tax rolls for 1938 and remained off until 1959, when it was placed on the rolls and assessed for that year. The plaintiffs paid the first half of the 1959 taxes under written protest pursuant to G. S. 1949, 79-2005, and on January 15, 1960, filed an application for relief from a tax grievance with the board of tax appeals pursuant to G. S. 1949, 79-1701, et seq., as amended. On April 20, 1960, the board heard the plaintiffs’ application, and on September 2, 1960, it entered an order finding the building was not exempt from taxation, and denied the application.
On August 17, 1960, and prior to the decision of the board of tax appeals, the plaintiffs filed a motion in the original action commenced in 1938 for an order directing the defendants to (1) refund to the plaintiffs the first half of the 1959 taxes, (2) remove the building from the tax rolls of Sedgwick County on the ground the property was adjudged to be exempt from taxation as shown by the judgment entered on June 7, 1938, and (3) require the defendants to show cause why they should not be held in contempt of the court for failure to abide by and carry out the 1938 judgment.
On September 7, 1960, the district court sustained parts 1 and 2 of the motion, and found that the judgment rendered June 7, 1938, finding the building exempt from taxation and restraining the defendants from collecting ad valorem taxes on the property had never been appealed from, modified or reversed and that it was final and binding on all parties on that date and continued to be so long thereafter as the property retained its present status and ownership. The defendants were directed to refund the first half of the 1959 taxes in the amount of $5,737.80; to immediately remove the building from the tax rolls of Sedgwick County, and they were restrained from placing it on the tax rolls until the further order of the court. Part 3 of the motion was overruled. (The defendants appealed to this court from that judgment, case No. 42,376, but the appeal was dismissed on March 4, 1961, upon motion of the defendants.)
Thereafter, and on September 20, 1960, the defendants filed a motion in the 1938 action to vacate the void portion of the 1938 judgment and the void portions of the 1960 judgment. The motion alleged that the 1938 judgment, as construed and applied by the district court in its 1960 judgment, was outside the issues raised by the pleadings and the evidence; that the court was without jurisdiction in that action to enjoin the collection of taxes for the years subsequent to 1937 since no issue was there raised concerning subsequent taxes, and that the portion of the judgment which purported to enjoin the defendants from collecting taxes for years subsequent to 1937 was void, and Beach, Treas., v. Shoenmaker, Trustee, 18 Kan. 147 was cited and relied upon. The motion further alleged that the 1960 judgment was void and of no effect for the reason that the district court had no authority to entertain in the original action, the plaintiffs’ motion filed August 17, 1960, for a refund of the first half of 1959 taxes and to remove the building from the tax rolls. It also alleged that the plaintiffs, having made application to the board of tax appeals for relief from a tax grievance, were precluded by the express provisions of G. S. 1949, 79-2005 from bringing any action in any court for the recovery of any taxes paid under protest until that board had made its order, and that if plaintiffs then sought to have the validity of such order judicially determined, they were required to commence a new action in the district court within 30 days after the date the board mailed its order to the plaintiffs.
The plaintiffs answered and denied that neither the 1938 nor the 1960 judgments were void; they alleged that the defendants were es-topped from denying the validity of any portion of the judgments, or the jurisdiction of the court in rendering them; that the court had jurisdiction to enter the judgments and they were res judicata as to the parties to the action and particularly to the defendants; that the defendants acquiesced in the 1960 judgment by refunding the first half of the 1959 taxes plus interest to one of the plaintiffs herein; that the order of the board of tax appeals was void because it was not rendered within 90 days from the date of the hearing on April 20, 1960, as required by G. S. 1949, 79-2005, and that the defendants, in failing to appeal from the 1938 judgment, in paying the costs of the action, and having removed the building from the tax rolls from 1937 to 1958, inclusive, consented to the judgment and are now estopped from claiming the building is not exempt.
On March 31, 1961, the matter was heard and both parties introduced documentary evidence. At the conclusion of the hearing, the court made findings of fact and conclusions of law and overruled the defendants’ motion to vacate the claimed void portions of the two judgments. The appeal is from that order.
Did the district court have jurisdiction on June 7, 1938, to enjoin the collection of taxes against the trust property for years subsequent to the year 1937? We think it did not. It is well settled that courts have jurisdiction to decide only such issues as are raised by the pleadings and a judgment which goes beyond such issues is void (Miller v. Miller, 107 Kan. 505, Syl. ¶ 2, 192 Pac. 747; Brinkerhoff v. Bank, 109 Kan. 700, 205 Pac. 779; Skaer v. Capsey, 127 Kan. 383, 386, 273 Pac. 464; State Reserve Bank v. Daniels, 142 Kan. 694, 697, 51 P. 2d 1009; Patton v. Sartin, 149 Kan. 299, 300, 87 P. 2d 589; Penn Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, 111 P. 2d 1116). In Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, it was held:
“A judgment entirely outside the issues in the case and upon a matter not submitted to the court for its determination, is a nullity; and may be vacated and set aside at any time upon motion of the defendant.” (Syl. ¶ 1.)
In the opinion it was said:
“. . . The mere fact that jurisdiction of the person was obtained by the court, did not give it unlimited power to adjudge any and every matter in which the parties to the action might be concerned. A court cannot determine matters not brought to its attention by some method known to the law, nor give effective judgment upon a cause or subject-matter not brought within the scope of its judicial power. Although it may have jurisdiction in the class of cases to which a cause belongs, it cannot exercise its power until it is invoked by the parties; and if it goes outside of the issues and adjudicates a question not submitted for its decision the judgment is without force.” (1. c. 120.) (Emphasis supplied.)
We do not ascribe to the 1938 judgment the sweeping effect accorded it by the district court in 1960. On the face of the record, the judgment falls within the foregoing rule. The petition in that action made no reference to any taxes other than those for the year 1937, nor was any claim made for exemption for subsequent years in either the stipulation of facts or in the written protest. Thus, the only issue before the district court to adjudicate was the question of exemption from taxation for the year 1937. Jurisdiction may be defined as the power of a court to adjudicate concerning the subject matter in a particular case. (In re Estate of Johnson, 180 Kan. 740, 746, 308 P. 2d 100.) To acquire jurisdiction three essentials are necessary: First, the court must have general jurisdiction of the class of cases to which the one to be adjudged belongs; second, proper service of summons must be had upon the defendant or he voluntarily enters his appearance in the case, and third, the point decided must be, in substance and effect, within the issues framed by the pleadings and, as here, in the stipulation of facts and the written protest. (Sheridan County Comm'rs v. Acre, 160 Kan. 278, 284, 285, 160 P. 2d 250.) The first and second elements were present. The court had jurisdiction of the question whether the property was exempt from taxation under the constitution and statutes of this state, and the defendants were properly in court. Rut the third element, the point to be decided within the issues framed, presented only the question of exemption from taxation for the year 1937, hence a judgment purporting to enjoin the defendants from the collection of taxes for all years subsequent to 1937 was entirely outside the issue of the case. As construed by the court in 1960, the 1938 judgment permanently enjoined the defendants, not only from collecting taxes against the property for the year 1937, but forever thereafter. To that extent the judgment went beyond the issue framed, and was void.
The foregoing conclusion is strongly supported by the early case of Beach, Treas., v. Shoenmaker, Trustee, supra. There an owner of a tract of land obtained a permanent injunction enjoining the county treasurer and his successors in office from selling certain land for the taxes for 1868, or any taxes that might thereafter be assessed. No appeal was taken to reverse the judgment. More than three years thereafter a successor filed a motion to vacate and set aside the judgment or so much as purported to restrain any sale for taxes for the years subsequent to 1868, which was overruled. In reversing the district court, Mr. Justice Rrewer said:
“An examination of the petition discloses the fact, that in it there is no reference to any other taxes than those of 1868, no claim for relief based upon other than a present use of the property for religious, charitable, educational and benevolent purposes, and no prayer for relief beyond the taxes of 1868, except the general prayer ‘for such other and further relief in the premises as may be just and proper.’ In other words, while the only matter presented in the pleadings was the taxes of 1868, and the only party defendant the then acting treasurer of the county, the court by its decree attempted to bind the county, and all municipal authorities, forever, and as to all subsequent taxes. We think the decree was, as to everything except the taxes of 1868, void, and that it should have been set aside by the court upon the motion filed. . . .” (1. c. 148, 149.)
Although the motion to vacate the 1938 judgment was not made until more than 21 years after it was rendered, the court was not hampered by that limitation of time. Our statute (G. S. 1949, 60-3009) relating to proceedings for the vacation and modification of judgments provides that “a void judgment may be vacated at any time on motion of a party or any party affected thereby.” See Beach, Treas., v. Shoenmaker, Trustee, supra; Hanson v. Wolcott, 19 Kan. 207; Penn Mutual Life Ins. Co. v. Tittel, supra, and Patton v. Sartin, supra.
In view of the conclusion just announced, little more need be said concerning the validity of the 1960 judgment. No new issue was tendered by the plaintiffs’ motion of August 1960; it merely attempted to invoke the jurisdiction of the court to enforce the former judgment. As we have seen, the 1938 judgment was void for want of jurisdiction insofar as it purported to enjoin the collection of taxes for the years subsequent to 1937, and the motion of the plaintiffs to enforce it could not confer jurisdiction, or make that portion of the judgment valid.
But another and compelling reason exists why the 1960 judgment is void. The constitution of Kansas does not prescribe the method of levy, assessment and collection of taxes, or of determining whether property is exempt; those matters are wholly statutory, and whatever remedies or procedures are available in connection therewith are to be found in the statutes. (Sherman County Comm'rs v. Alden, 158 Kan. 487, Syl. ¶ 1, 148, P. 2d 509, and cases cited therein; Phillips Petroleum Co. v. Moore, 179 Kan. 482, 490, 491, 297 P. 2d 183.) When the plaintiffs invoked G. S. 1949, 79-2005 to pay the first half of the 1959 taxes under protest, they were bound by all its provisions. Had they wished to seek a judgment of the district court to recover the first half of the 1959 taxes, they should have filed an original action for that purpose within 30 days after payment under protest, or, as they did, make application to the board of tax appeals to determine the validity of their tax protest. If the board denied their application, they were entitled to file an original action in the district court to determine the validity of the order within 30 days after the same was mailed by the board. (G. S. 1949, 70-2005; Sinclair Pipe Line Co. v. State Commission of Revenue & Taxation, 181 Kan. 310, 312, 311 P. 2d 342.) However, after submitting their application to the board of tax appeals and before it had entered its order, the plaintiffs filed their motion in the district court in the 1938 action to recover the first half of the 1959 protested taxes. The procedure did not comply with the provisions of the statute (G. S. 1949, 79-2005), and the district court had no jurisdiction to sustain the motion or to order a refund of the protested taxes. The pertinent portion of the statute reads:
“. . . No action shall be brought or maintainable in any court for the recovery of any taxes paid under protest unless the same is commenced within thirty days after the filing of such protest with the county treasurer, or, in case application shall have been filed with the commission as hereinbefore set out, unless the same is commenced within thirty days after the date the commission mailed its order on such protest to the taxpayer. . . .”
The plaintiffs argue, however, that the order of the board of tax appeals made on September 2, 1960, was void because it was not made within 90 days from the date of the hearing as required by G. S. 1949, 79-2005. The point is not well taken. While the board should at all times comply with the statute in considering a taxpayer’s application for relief from a tax grievance, the time in which the board should enter its order is directory rather than mandatory, and when made beyond the 90-day period it is not void for that reason. Generally speaking, statutory provisions directing the mode of proceeding by public officers and intended to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties cannot be injuriously affected, are not regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. See discussion on mandatory and directory legislation in Board of Education v. Barrett, 101 Kan. 568, 570, 167 Pac. 1068; City of Hutchinson v. Ryan, 154 Kan. 751, 121 P. 2d 179, and School District v. Clark County Comm’rs, 155 Kan. 636, 638, 639, 127 P. 2d 418.
As we have seen, the 1938 and 1960 judgments were void, and a void judgment does not form the basis for the defense of res judicata. Nor do we agree with the plaintiffs’ argument that the defendants acquiesced in the 1960 judgment by refunding the first half of the 1959 taxes. While the county treasurer did issue his check in the amount of $5,836.52 as a refund of the first half of the 1959 taxes plus interest, payment thereon was stopped. Likewise there is no merit in the argument that the defendants are estopped to deny the validity of the 1938 judgment as having acquiesced therein by removing the building from the tax rolls from 1937 to 1958, inclusive. Rights of the character here asserted by the county are not lost by estoppel (State, ex rel. v. Berk, 129 Kan. 645, 649, 284 Pac. 386), or by the unauthorized acts or representations of its officers (Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610). See, also, Construction Co. v. Sedgwick County, 100 Kan. 394, 164 Pac. 281 and Kucera v. State, 160 Kan. 624, 627, 164 P. 2d 115. In matters relating to the public welfare, taxation, or any exercise of the police powers, the state or one of its political subdivisions is not estopped to assert or protect public rights (City of Hutchinson v. White, 117 Kan. 622, 625, 233 Pac. 508).
The building has only a commercial use, which the plaintiffs concede. Under our many decisions that use did not exempt the building from taxation under either Article 11, Section 1 of the constitution of Kansas, or under G. S. 1949, 13-1406. See Kansas State Teachers Ass'n v. Cushman, 186 Kan. 489, 351 P. 2d 19, and cases cited.
The district court erred on March 31, 1961, in overruling the defendants’ motion to vacate the void portion of the judgment en tered on June 7, 1938, and the void judgment entered September 7, 1960.
The judgment is reversed.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This action was commenced in the probate court of Osborne county on June 30, 1959, by petition filed by Bessie E. Jones for probate of an instrument denominated the joint last will and testament of Charles W. Jones and Bessie E. Jones, which reads:
“We, Charles W. Jones, and Bessie E. Jones, husband and wife, of sound mind and memory, do hereby make and declare this to be a joint and Last Will and Testament, and we hereby revoke any and all other wills that may have been made by us prior to this date, September 21-1948.
“First at our deaths we Wish all of our lawful debts paid from any property possessed by the survivor.
“Second, at the death of either of the testators herein named, all property possessed by the deceased shall and is hereby bequeathed to the survivor, absolutely and without reservations, and at the death of the survivor, it is the will and wish of both testators herein that all property thus possessed shall then be divided equally between our three children or their heirs, as follows: Wilbur Sherbondy, David W. Jones, and Maxine E. Johnson.
“In testimony hereof we have hereunto subscribed our names this the twenty-first day of September, a. d. 1948, in the presence of the attesting witnesses who saw us subscribe our names hereto and they have signed as witnesses in our presence and in the presence of each other, the year and day above written.”
The petition showed the death of Charles had occurred on June 4, 1959, and asked for appointment of Lloyd C. Bloomer as administrator C. T. A. On July 31, 1959, the probate court admitted the will to probate and appointed Bloomer administrator C. T. A. thereof but limited the will to personal property. Bond was set in the amount of $6,500.00. Inventory and appraisal of both real and personal property of Charles was filed by Bloomer on August 7, 1959.
On August 27, 1959, Maxine E. Johnson and David W. Jones, children of Charles by a prior marriage, perfected their appeal to the Osborne district court where, on June 27, 1960, the district court found, from the evidence of Bessie and from that of the only surviving attestation witness to the will, that the will was the valid and joint last will and testament of Charles and Bessie and had been properly admitted to probate; that Bloomer was a fit and proper person to be appointed administrator C. T. A., and remanded the estate to the probate court for completion of administration thereof, which in effect ordered probation of the will without limitation as to the property to be administered.
Bloomer filed a petition for construction of the will and for final settlement on August 13, 1960. On September 10, 1960, David and Maxine filed their answer, objections and defenses thereto and the issues were thus joined as follows:
1. Did the will cover both real and personal property?
2. What estates did the will give to Bessie, to Wilbur Sherbondy, decedent’s stepson, and to David and Maxine, his son and daughter?
David and Maxine also filed a petition for transfer to the district court on September 10, 1960, which request was consented to by Bloomer and his counsel on September 12, 1960.
Trial was had on September 30, 1960, and the court in its journal entry of judgment dated November 18, 1960, made findings of fact and conclusions of law. The findings repéated substantially the facts referred to herein. The trial court made two conclusions of law but we are here concerned only with No. 1 which reads:
“The court concludes as a matter of law that the will of Charles W. Jones, deceased, gave to the survivor, Bessie E. Jones, the fee in all the property of Charles W. Jones, with absolute power of disposition. The limitation or devise over to the children of Charles W. Jones and Bessie E. Jones is effective as her will, to such of the property not disposed of by will or otherwise at her death.”
Following the conclusions of law, the trial court made further findings as to amounts allowable as reasonable attorney fees in this case. Such fees were allowed and no objection is here made thereto. The trial court further ruled as a matter of law that Bloomer should deliver the balance of the personal property in the estate to Bessie and that the real estate be assigned to her “subject to any lawful disposition thereof heretofore made.”
Motion for new trial was filed but according to our long established rule in cases where an action is submitted to the trial court for judgment upon a record from a lower court, such motion is neither necessary, proper or essential (In re Estate of Weidman, 181 Kan. 718, 723, 314 P. 2d 327, and cases cited therein) and, therefore, the ruling on that motion will not be treated. Maxine and David thereafter perfected their timely appeal to this court.
The parties agree the sole question to be determined on appellate review, under the instrument thus far denominated the joint last will and testament of Charles and Bessie, is the interest Bessie received in the property, real, personal, and mixed, at the death of Charles.
We shall approach the problem in the same manner the parties treated it in their briefs. First, we are called upon to construe the intention of the testators at the time they made the instant will. More than a cursory reading of any written instrument is necessary to reveal the meaning of the words therein contained and this is especially true with a will because the testator is not here to testify directly as to what he intended by the words he used. Both parties in this litigation set out the rule that in construing a will the court must put itself as nearly as possible in the situation of the testator at the time he made his will and from a consideration of that situation and of all the language used in the entire will, the court must determine the intention the testator had in making such will whereby his property, real, personal, or mixed is to be conveyed at his death according to his desires so long as those desires are legal. (Brown v. Brown, 101 Kan. 335, syl. ¶ 1, 166 Pac. 499; In re Estate of Hauck, 170 Kan. 116, syl. ¶ 3, 223 P. 2d 707; Beall v. Hardie, 177 Kan. 353, 356, 279 P. 2d 276.)
Here we have a husband and wife, Charles and Bessie, who owned, in joint tenancy, real estate and some personal property including household furnishings and effects, cash, government bonds, etc. The testators had three adult children by prior marriages. They properly executed their joint last will and testament, as heretofore set out. The second provision of the will is the portion that created the problem which confronted the trial court and is the one now before us on appeal.
We recognize that counsel for both parties have cited authorities in this jurisdiction which state rules of law applicable in those particular cases but in each one of them the instrument involved is distinguishable from our present one by the language used therein and consequently, the conclusions reached are not decisive of our present question. As an example, the portion of the will considered in Sharpe v. Sharpe, 164 Kan. 484, 190 P. 2d 344, read as follows:
“I give, devise and bequeath to my wife, Birdie, all of my property, real, personal, or mixed, wherever the same may be situated and after her death any remaining property of my estate is to be divided equal between my children who are as follows: [naming them]. . . .” (p. 484.)
This provision is somewhat similar but not identical with the words in the second provision of our present will. The court in the Sharpe case held that a life estate was created in the widow with power of disposition during her lifetime because that will was only a joint will. The discussion in that case and the authorities cited are quite persuasive but we cannot say they are conclusive herein for the reason the parties here provided for their children by prior marriages, determining the amount to each and naming them.
The more recent case of In re Estate of Weidman, 181 Kan. 718, 314 P. 2d 327, was concerned with the construction of the will of Fred Weidman and Julia Mannel Weidman, husband and wife, declared to be their “last will and testament.” The will, in substance, provided that Fred and Julia gave, devised and bequeathed to their brothers and sisters the balance of their property at the time of their death, one half to Julia’s heirs and one half to Fred’s heirs, naming them. No particular designation was made that this was a joint will but from the very terms thereof, it was determined to be contractual in nature and to be the joint and mutual will of Fred and Julia (p. 726) and such determination was amply supported by a thorough discussion and citation of authority. Because of the wording of the will, Julia, the survivor, took a life estate without power of disposition. The reason for this • conclusion was that the parties had stated in their joint, mutual, and contractual will that the property owned by both at the time of the death of whoever died first was to be equally divided, one half to the Mannel heirs and one half to the Weidman heirs. The difference between the Weidman will and our present one is quite apparent. Julia could not dispose of any property even for her own necessities during her lifetime, but let us examine the provision as to the survivor (here Bessie) in our case. In pertinent part the provision reads:
“. . • at the death of either of the testators herein named, all property possessed by the deceased shall and is hereby bequeathed to the survivor, absolutely and without reservations, and at the death of the survivor, it is the will and wish of both testators herein that all propeity thus possessed shall then be divided equally between our three children or their heirs, . . .” (Our emphasis.)
Following fundamental rules of English construction, the above use of two independent statements, joined by the co-ordinate conjunction and resulted in a compound sentence, and the use of the words thus possessed in the second independent statement gave Bessie the power of disposition so long as the interests of Maxine, David, and Wilbur in the remaining property left at Bessie’s death were not changed. In other words, the remaining property at Bessie’s death would pass to Maxine, David, and Wilbur share and share alike.
Another joint, mutual, and contractual will was considered in In re Estate of Buckner, 186 Kan. 176, 348 P. 2d 818, where the surviving husband attempted to give to his relatives the half interest in the residue of the estate set apart to the wife’s relatives under the contractual terms of their will. It was held the husband could not in such manner defeat the contractual terms of the will which were clear, definite and unambiguous by making the attempted gifts that were without consideration. See general rules of construction and authorities cited in the Buckner case, as well as the discussion included in the earlier case of Berry v. Berry, 168 Kan. 253, 212 P. 2d 283.
From the foregoing authorities it is clear the trial court erred in determining this will was such a joint will that it gave Bessie full power to dispose of the property covered thereunder at her death in a manner contrary to the terms of the will. Furthermore, its decision likewise gave Bessie, during her lifetime, the power to give the property to her child alone and thus cut off the two children of Charles. This determination is manifestly not correct and we are compelled to say the trial court was incorrect in ruling that Bessie took a fee simple title to the property upon the death of Charles and such judgment cannot stand.
Under the terms of the will before us, and the authorities discussed, no question remains but that this will is clear, definite, and unambiguous and we need, therefore, not go into other rules of construction to determine the intention of the testators. (In re Estate of Hauck, supra; Johnston v. Gibson, 184 Kan. 109, Syl. ¶ 3, 334 P. 2d 348.) Bessie received a life estate with power of disposal for necessities and at her death the remaining property is to be divided among the three children of Charles and Bessie share and share alike, under the terms of their joint, mutual, and contractual will.
Reversed with directions to the trial court to enter judgment in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Schboeder, J.:
This is an action for wrongful death brought by the plaintiff administrator pursuant to the Federal Employers’ Liability Act (45 U. S. C., § 51, et seq.) in the district court of Sedgwick County, Kansas, as authorized by G. S. 1949, 59-1707 and 59-1708.
The plaintiff’s decedent, Emilio Perez, a resident of Otero County, Colorado, while in the course of his employment by the defendant railroad met his death as a result of an automobile collision occurring near Las Animas in Bent County, Colorado.
Service of process was obtained upon the defendant’s freight agent residing in Sedgwick County, Kansas. Without otherwise pleading to the petition, the defendant, The Atchison, Topeka and Santa Fe Railway Company, promptly filed its verified motion to dismiss the action under the doctrine of forum non conveniens. This motion was sustained by the trial court after healing, and appeal has been duly perfected from this order.
The questions presented are whether the doctrine of forum non conveniens is recognized in Kansas, and if so whether it is applicable to the facts in this case.
In support of the appellee’s motion to dismiss Under the doctrine of forum non conveniens ten specific reasons based upon facts fully stated therein were set forth. The facts alleged in the motion were supported by affidavits. The trial court found in favor of the appellee upon all of the points enumerated. Its journal entry of dismissal reads in pertinent part:
“Thereafter, on the 20th day of July, 1961, the Court finds that all material witnesses to the accident as well as plaintiff in this action are residents of the State of Colorado; that there are no known witnesses residing in Sedgwick County, Kansas, or in the State of Kansas; that the known witnesses are not amenable to compulsory process by this Court; that the purported cause of action arose from a motor vehicle accident which is alleged to have occurred in Bent County, Colorado, and no part of the purported cause of action arose in Sedgwick County, Kansas, or in the State of Kansas; that the defendant is amenable to service of process in both the County of Bent, Colorado where the accident occurred and in the County of Otero, Colorado; that the courts of Colorado in each of tiróse counties are available to plaintiff for prompt hearing and determination of the claim asserted; that the trial of this case, as well as the five companion cases impose a substantial burden of jury service upon this community when it has no substantial connection with the cause of action; that the petition invokes Colorado Statutes and law; that the trial of this and the other actions in the District Court of Sedgwick County, Kansas would add to the present congestion of its trial docket, delay the trial of cases properly trialable in this Court, and constitute an unnecessary and undue burden and expense to the defendant; and that all the undisputed facts and circumstances of this case, and the five companion cases, present a proper case for the application of the doctrine of forum non conveniens.
“This Court, exercising its judicial discretion, determines that these actions should be dismissed without prejudice to the plaintiff’s right to file same in the more convenient forum afforded in the State of Colorado. It is so ordered, adjudged and decreed.”
The doctrine of forum non conveniens is of ancient common law origin and has been recognized and applied in the federal courts and in the courts of most of the states. It is based upon broad considerations of convenience, justice, public policy, and due regard for the rights of citizens. Simply stated the rule is that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. (Gulf Oil Corp. v. Gilbert, [1947], 330 U. S. 501, 507, 91 L. Ed. 1055, 67 S. Ct. 839.)
In Plum, Appellant v. Tampax, Inc., [1960], 399 Pa. 553, 160 A. 2d 549, the Pennsylvania Supreme Court said:
“. . . It is well within the power of the court, in the interests of justice, to decline to exercise its jurisdiction where, upon consideration of the parties, the witnesses, the situs of the cause of action and other kindred reasons, the litigation can more appropriately be conducted in another forum. . . . Whether a suit should be dismissed under the doctrine of Forum Non Conveniens will depend largely upon the particular facts and upon the discretion of the trial court. Such exercise of discretion will be overruled on appeal only when abused.” (p. 560.)
The Illinois Supreme Court described the doctrine in A. T. and S. F. Ry. Co. v. Clark, [1957], 12 Ill. 2d 515, 147 N. E. 2d 89, in the following language:
“The doctrine of forum non conveniens has been described as an equitable doctrine whereby ‘the trial court may, in its discretion, decline the jurisdiction of the case,’ under certain circumstances, ‘even though it may have proper jurisdiction over all parties and the subject matter involved.’ . . . Therefore, a motion to dismiss based on forum non conveniens raises an issue which necessitates an exercise of discretion by the trial judge in ruling thereon. . . .” (p. 520.)
The United States Supreme Court in Gulf Oil Corp. v. Gilbert, supra, elucidated upon the doctrine in the following language:
“. . . In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.
“n.
“The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. These statutes are drawn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing tlie trial at a most inconvenient place for an adversary, even at some inconvenience to himself.
“. . . But the problem is a very old one affecting the administration of the courts as well as the rights of litigants, and both in England and in this country the common law worked out techniques and criteria for dealing with it. “Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.
“If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ “harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarelv be disturbed.
“Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
“nr.
“. . . Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants. . . . Such matters are for the District Court to decide in exercise of a sound discretion.” (pp. 506 to 511, inch)
The Oklahoma Supreme Court in an action under the Federal Employers’ Liability Act against a foreign corporation determined that the courts of that state had the inherent power to dismiss an action under the doctrine of forum non conveniens, and having no statutory criteria to guide the court in exercising this power they adopted the view expressed by the Supreme Court of the United States in Gulf Oil Corp. v. Gilbert, supra. (St. Louis-San Francisco Ry. Co. v. Superior Court, [Okla. 1954], 276 P. 2d 773.)
For other decisions of similar import see Walsh v. Crescent Hill Co., [Mun. C. A., D. C. 1957], 134 A. 2d 653; Forcum-Dean Co. v. Missouri Pacific Railroad Co., [Tex. C. C. A. 1960], 341 S. W. 2d 464; and Price v. Atchison, T. & S. F. Ry. Co., [1954], 42 C. 2d 577, 268 P. 2d 457, cert. den. 348 U. S. 839, 99 L. Ed. 661, 75 S. Ct. 44. (See also 29 Colum. L. Rev. 1, [1929], “The Doctrine of Forum Non Conveniens in Anglo-American Law;” and Lansverk v. Studebaker-Packard Corp., [1959], 54 Wn. 2d 124, 338 P. 2d 747 — rejecting the doctrine in the state of Washington.)
The American Law Institute, Restatement of the Law Second, Conflict of Laws (Tentative Draft No. 4, April 5, 1957), formulates the rule in the following language:
Ҥ 117e. Forum Non Conveniens.
“While the plaintiff ordinarily controls choice of the forum, a court does not exercise jurisdiction if it is a seriously inappropriate forum for the trial of the action so long as an appropriate forum is available to the plaintiff.”
In the comments under the foregoing section it is said whether a suit should be entertained or dismissed under the doctrine of forum non conveniens depends largely upon the particular facts and upon the discretion of the trial court. Such exercise of discretion will be overruled on appeal only when abused.
The factors for the lower court to consider in making its determination are set forth in the comments to the foregoing section of the Restatement as follows:
“c. Factors to be considered. The two most important factors look to the court’s retention of the case. They are (1) that since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiff’s cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept defendant’s stipulation that he will not raise this defense in the second state.
“The remaining factors can best be grouped under the two principal interests involved: those of the parties and those of the public. This has been done as follows by Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508 (1947):”
The appellant contends the doctrine of forum non conveniens is not applicable in the state of Kansas for the reason that neither the constitution nor the statutes of Kansas expressly refer to the doctrine, or affirmatively authorize a district court to decline to exercise jurisdiction in a case in which the district court otherwise has jurisdiction over the parties and the subject matter. The appellant further contends the doctrine is inapplicable to a resident defendant.
From the beginning of our history as a state (Territorial Laws 1855, ch. 96, Laws 1862, ch. 135, G. S. 1935, 77-109) the common law of England has been the basis of the law of this state, and except as modified by constitutional or statutory provisions, by judicial decisions, or by the wants and needs of the people, it has continued to remain the law of this state. (State, ex rel., v. Board of Agriculture, 158 Kan. 603, 605, 149 P. 2d 604; Fergus v. Tomlinson, 126 Kan. 427, 268 Pac. 849; and In re Frye, 173 Kan. 392, 396, 246 P. 2d 313.)
Apparently the only Kansas decision approaching the subject of the doctrine of forum non conveniens is State of Oklahoma, ex rel., v. H. D. Lee Co., 174 Kan. 114, 254 P. 2d 291. There the defendant moved to dismiss a case in which the parties had entered into a stipulation of facts for submission upon the issues joined by the pleadings. In the opinion it was said:
“Defendant also argues that under the doctrine of ‘forum, non conveniens,’ meaning ‘a forum not convenient,’ and said to be a rule of convenience and expediency rather than one of jurisdiction (37 C. J. S., Forum, Note 94 (10), p. 133), plaintiff should not be permitted to bring this action in Kansas. A short answer to this contention is that the record utterly fails to establish that defendant has in any way been ‘inconvenienced’ by being forced to defend the action in this state. Furthermore, defendant is a Kansas corporation and according to its charter Topeka is designated as the situs of its principal place of business. There is no showing that the lower court abused its judicial discretion in accepting jurisdiction of the case. For a discussion of the doctrine see 14 Am. Jur., Courts, § 230, p. 424, and annotation at 87 A. L. R. 1425.)” (p. 118.)
Certainly the foregoing decision recognized the inherent power of the trial court to dismiss a transitory cause of action pursuant to the doctrine of forum non conveniens where facts and circumstances call for its application. We hold the doctrine is a part of the common law of the state of Kansas.
The appellant argues that the domicile of the appellee, in this instance a Kansas corporation, rather than the domicile of the appellant and the place of the accident, should be the determinative factor, and suggests that where a corporation is sued in the state of its incorporation the case cannot be dismissed, citing Lansverk v. Studebaker-Packard Corp., supra. For the divergent rules of the various states in transitory causes of action under the doctrine, where one or both parties are residents, and where both parties are nonresidents, see 48 A. L. R. 2d 808; and 48 A. L. R. 2d 850.
The argument advanced by the appellant was considered by the Supreme Court of the United States in Koster v. Lumbermens Mutual Co., [1947], 330 U. S. 518, 91 L. Ed. 1067, 67 S. Ct. 828, where it said:
“While, even in the ordinary action, tire residence of the suitor will not fix the proper forum without reference to other considerations, it is a fact of “high significance.’ . .
“. . . But the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice. Under modem conditions corporations often obtain their charters from states where they no more than maintain an agent to comply with local requirements, while every other activity is conducted far from the chartering state. Place of corporate domicile in such circumstances might be entitled to little consideration under the doctrine of forum non conveniens, which resists formalization and looks to the realities that make for doing justice.” (pp. 525, 527, 528.)
Cases in which an action was dismissed under the doctrine of forum non conveniens against a resident corporation are Winsor v. United Air Lines, Inc. [Del. 1958], 154 A. 2d 561; Vargas v. A. H. Bull Steamship Co. [1957], 44 N. J. Super. 536, 131 A. 2d 39; and Gore v. United States Steel Corp. [1954], 15 N. J. 301, 104 A. 2d 670. The Gore case is an exceptionally well written opinion on the doctrine.
We have heretofore determined that the courts of this state have the inherent power to dismiss a transitory cause of action under the doctrine of forum non conveniens. This is a discretionary power which should be exercised only in exceptional circumstances and when an adequate showing has been made that the interests of justice require a trial in a more convenient forum. There are no statutory criteria in this state to guide the court in the exercise of this power, and we therefore adopt the view of the Supreme Court of the United States as expressed in Gulf Oil Corp. v. Gilbert, supra. The place of corporate domicile, even though domestic as in the instant case, is a factor entitled to consideration but does not preclude dismissal of a transitory cause of action under the doctrine of forum non conveniens, which resists formalization and looks to the realities that make for doing justice. (Koster v. Lumbermens Mutual Co., supra.) We approve the American Law Institute view, as heretofore quoted from the Restatement on Conflict of Laws, to the effect that an action should not be dismissed in any event under the doctrine unless an alternative forum is available to the plaintiff.
It is now settled that the Federal Employers’ Liability Act, 45 U. S. C., § 51, et seq., by conferring concurrent jurisdiction on federal courts and state courts, does not impose a duty upon a state court to exercise jurisdiction of a cause of action arising under the act merely because the court properly has acquired jurisdiction over the defendant and the subject matter. State courts are free to adopt the doctrine of forum non conveniens and apply it to such transitory causes of action in accordance with state law. (Southern R. Co. v Mayfield [1950], 340 U. S. 1, 95 L. Ed. 3, 71 S. Ct. 1; and see Johnson v. Chicago, Burlington & Quincy Railroad Co. [1954], 243 Minn. 58, 66 N. W. 2d 763; Maynard v. Chicago & North Western Railway Co. [1956], 247 Minn. 228, 77 N. W. 2d 183; and A. T. and S. F. Ry. Co. v. Clark, supra.)
In conclusion we hold the trial court properly applied the suggested criteria of the United States Supreme Court in Gulf Oil Corp. v. Gilbert, supra. It specifically found that a proper case was presented for application of the doctrine of forum non conveniens— that a more convenient forum was afforded in the state of Colorado. Under all of the facts and circumstances presented by the record herein the trial court did not abuse the exercise of its power of discretion in dismissing the action without prejudice.
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The opinion of the court was delivered by
Parker, C. J.:
This action grew out of a dispute between joint owners of two producing oil leases as to the right to control the operation. The dispute ripened into a request for relief by way of partition. The plaintiff (Phoebe Harrington Browne) prevailed in the district court and defendants (Francine and Eva Loriaux) have appealed.
The allegations of the pleadings, highly summarized, are as follows;
Plaintiff in the first count of her petition alleges that she is the owner of a two-thirds working interest in two mineral leases on the Southwest Quarter of Section 21, and the West one-half of the Southwest Quarter of Section 28, Township 17, Range 4, Marion County, Kansas, and the two defendants are each the owner of a one-sixth working interest. Plaintiff in operating the leases incurred certain expenses with the implied and actual consent of defendants but that defendants have refused to pay their proportionate share. Judgment is requested.
The second count of the petition contains specific allegations of interference with plaintiff’s operations by defendants and requested the court to declare that plaintiff had the power to decide all disagreements and commit all interests in developing the leases. There was a further request that defendants be enjoined from stating to employees and others that plaintiff had no right to operate the leases and from hindering and preventing plaintiffs from developing the leases.
The third count of such pleading alleged that defendants had attempted to exclude plaintiff from the operation of the leases and from using the name Loriaux & Harrington Oil Company.
Plaintiff also filed an amended petition in which she realleged the disagreement between the parties as to the operation of the leases, interference on the part of the defendants and further prayed that if she not be declared operator of the leases that such leases be partitioned and sold and the proceeds divided according to the respective interest of the parties.
In their answer defendants admitted ownership of the leases as alleged in the petition; denied plaintiff’s right to operate the leases or expend any sums whatsoever in connection therewith; denied that they in any way consented to any expenditures by plaintiff; and further denied that plaintiff had any proprietary right in the name of Loriaux & Harrington Oil Company or that she was entitled to a partition.
The defendants also cross-petitioned. In this pleading they alleged the history of the operation of the leases; asserted that they as the remaining members of the Loriaux & Harrington Oil Company were the operators of the leases; prayed that plaintiff be enjoined from interfering; and also prayed for judgment against plaintiff for sums expended by them in the operation of such leases.
Plaintiff replied denying generally the right of defendants to the relief requested in the cross-petition.
The defendants also filed an amendment to their answer in which they alleged that plaintiff had entered into a scheme with a deliberate intent to “squeeze out” defendants; that partition would work an undue and inequitable hardship on them with a great financial loss; and that in good conscience plaintiff’s prayer for partition should be denied.
Following the trial of the issues the court announced that its decision was “for the plaintiff generally.” It then rendered a judgment in which, according to the journal entry, it adjusted the accounts of the parties for expenditures made in connection with the operation of the leases; gave plaintiff judgment for the balance due; enjoined defendants from asserting they were the sole operators of the leases and that plaintiff did not have a two-thirds interest in the ownership and operation of the leases, property and trade name (Loriaux & Harrington Oil Company); decreed that plaintiff had power and authority to determine policies of operation; make decisions; take action in event of disagreements between interest holders; and hire and discharge employees. In addition the court further decreed that, “the interests of all parties in said leases, property and trade name be appraised and sold in partition, in accordance with the statutory procedure, said interests not being susceptible of partition in kind without manifest injury to the interest holders. . . .”
The parties are more in disagreement as to the facts to which the law is to be applied than they are as to the principles of law applicable to a given set of facts. A detailed statement of the facts is therefore necessary.
In passing it should be noted that the trial court did not make findings of fact and none were requested, therefore, all questions of controverted fact must be resolved in favor of the court’s decision. See, e. g., In re Estate of Duncan, 186 Kan. 427, 350 P. 2d 1112, where it is held:
“A general finding by a district court determines every controverted question of fact in support of which evidence was introduced and raises a presumption that it found all facts necessary to sustsain and support the judgment.” (Syl. ¶ 1.)
And in the opinion said:
‘In the instant case findings of fact and conclusions of law were not requested by either party nor made by the trial court upon its own initiative; hence, all questions must be resolved in favor of the trial court’s decision, and it must be presumed that the court considered all necessary evidence to make the general findings and enter judgment thereon. It has been held that a general finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced, and that a general finding by a trial court raises a presumption that it found all facts necessary to sustain and support the judgment. (Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Manville v. Gronniger, 182 Kan. 572, 577, 322 P. 2d 789; Redman v. Mutual Benefit Health & Accident Ass’n, 183 Kan. 449, 457, 327 P. 2d 854.)” (pp. 433, 434.)
The only function of this court on review, in the absence of findings of fact, is to examine the record to ascertain whether the evidence establishes facts which support the judgment of the trial court. In view of the foregoing well-established rules of law, we will summarize the facts as disclosed by the evidence and which are implicit in the judgment of the trial court.
In 1939 John L. Harrington owned a one-half interest and three brothers Amour, Rodolphe, and Joseph Loriaux owned an undivided interest in the other one-half interest in the leases in controversy. The leases proved to be very productive and numerous wells were drilled thereon. On May 9, 1939, after the first well was drilled, the lease owners entered into an agreement which provided in part as follows:
“It is hereby understood and agreed that any expense incurred over and above $500.00, in equipping said well or wells and putting it on production, shall be submitted for approval to both first and second parties before incurred. It is further agreed that in case said well should be a producing oil or gas well, the parties hereto will enter into a further agreement for the operation of said well and said lease.”
No further written operating agreement was ever entered into between the parties.
All four parties engaged in the operation of the leases. It does not appear that any of the parties interested in the leases, including the present litigants, ever received any compensation as a manager or operator. The bills were paid under the trade name of Loriaux & Harrington Oil Co. A bank account was established in the Union National Bank at Bartlesville, Oklahoma, for that purpose. The payments for the oil runs were made direct to the interest holders for their proportionate share. Each contributed their share of expenses to a common fund. Amour Loriaux kept the books, made the assessments and paid the bills until his death. It also appears that Rodolphe Loriaux was the field superintendent up until the time he sold his one-sixth interest to the plaintiff.
John L. Harrington died in 1943 and his one-half interest in the leases passed to his son, Tom Harrington. Tom died in 1945 and the one-half interest passed to his wife, now Phoebe Harrington Browne.
In 1953 Joseph Loriaux died and his one-sixth interest passed to his two daughters, the defendants. Amour Loriaux died in 1957 and his one-sixth interest was acquired by the defendants from Amour’s executors in January 1958.
At all times until 1958 amicable relations existed among the interest holders. When there was a disagreement between the parties as to operations or expenditures the majority interests controlled. The plaintiff actively participated in the operation of the leases after the death of her husband Tom.
Beginning in 1958 a controversy arose as to the future location of the records, the right to operate the leases, incur expenses and other matters. The plaintiff discovered that the defendants were contending that she had no interest in the operation of the leases or in the trade name Loriaux & Harrington Oil Company. Plaintiff then informed defendants that she would pay her one-half of the bills direct to the creditors and started doing so March 1, 1959. Defendants refused to recognize the right of plaintiff and attempted to pay all bills in full direct to the creditors. This caused the creditors to receive one and one-half times their actual billings.
Rodolphe Loriaux found himself in an untenable position. He was the only remaining member of the original adventure, holding only a one-sixth interest. His two nieces held a one-third interest and the daughter-in-law of one of his original partners held a one-half interest. He tried many times, without success, to get the ladies to sign a working agreement giving him “sole power to run the leases, to hire and fire the employees.” He refused to agree to anything in connection with the operation of the leases in the absence of such authority. The proper operation of the leases was stymied.
On August 1, 1959, plaintiff attempted to break the stalemate by purchasing Rodolphe’s one-sixth interest in the lease. The sum of $32,500 was paid for his interest. Plaintiff then wrote the defendants informing them of her acquisition of a two-thirds interest in the leases and requested their cooperation. Defendants answered —“This purchase does give you % interest in all of the lease properties; not the operations.” Defendants refused to attend meetings arranged by plaintiff. Plaintiff continued the operation of the leases. She successfully fractured two wells and bought pipe for an offset well. The defendants refused to contribute to the expenses.
Plaintiff requested a meeting with the defendants at the leases on September 26, 1959. The defendants did not appear on that day or on the next day, although plaintiff was there on both dates. However, they appeared on the following day and demanded the bills from the pumper. When the pumper informed them that he had turned the bills over to the bookkeeper, plaintiff had appointed in Herington, he was informed by defendants that plaintiff had nothing to say about the operation of the leases. The defendants then became abusive, swore and left. The next day they returned and attempted to force the pumper to admit that they were the sole operators of the leases. When they received no satisfaction on that subject rocks were thrown at the pumper and abusive language was used by them.
Defendants informed numerous merchants furnishing supplies for the operation of the leases that they were the sole operators and that no bills were to be sent to plaintiff.
Defendants first contend that plaintiff on acquiring a majority interest in the mining partnership did not have the right to summarily oust the defendants who held a one-third interest and were oper ating managers of long standing by virtue of an implied operating contract. They further contend that the trial court erred in decreeing that plaintiff, holding the majority interest, had the power to determine policies of operation, make decisions, and take action in the event of disagreement between interest holders.
The facts do not support defendants’ contentions. We find no evidence of an implied operating contract held by the Loriaux family, particularly one that would pass by inheritance. Up until 1959, a member of the Loriaux family did sign the checks by which the bills were paid but all other matters of operation were determined by mutual agreement. Later where the interests were equally divided on a question of operation nothing was done.
Treating the mining partnership as one entity and the operating partnership as another, as the parties have done, does not strengthen the position of the defendants, who quote from 40 C. J., Mines and Minerals, § 804(4), p. 1149 [58 C. J. S., Mines and Minerals, § 246 (e), p. 701.], as follows:
"The assignee of an interest in a mining partnership becomes a member of the partnership, and takes his interest subject to the conditions and terms under which his assignor held it without any express assumption thereof. . . .
We approve the foregoing statement as a general proposition of law, however, both the plaintiff and the defendants in this case acquired their interests in the same manner. The plaintiff acquired a one-half interest by inheritance and acquired a one-sixth interest by purchase from one of the Loriaux brothers. The defendants acquired a one-sixth interest by inheritance and purchased the one-sixth interest of one of the Loriaux brothers. The nature of the interests acquired and the method of acquiring them furnishes no basis for a distinction between the rights of the parties as to management. Neither does the method of acquiring the interests furnish any basis for defendants’ contention that they were the sole owners of the trade name, Loriaux & Harrington Oil Company.
As between themselves, control of a mining partnership, rests with the members owning a majority of the shares. (2 Rowley on Partnership [2nd Ed.], § 56.9, p. 681; 4 Summers on Oil and Gas [Perm. Ed.], § 731, p. 167.)
A mining partnership has many things in common with a commercial partnership and to a great extent is governed by the same rules of law. There are, however, a few well defined exceptions. In a mining partnership there is no element of choice as to who are to be partners. This is one of the essentials in creating a trading partnership. A sale or transfer of an interest in a mining partnership does not effect a dissolution as it does in an ordinary partnership. It is not necessary to effect the formation or the continued existence of a mining partnership that there be an express agreement to become partners. The existence of a mining partnership will be inferred where several owners unite to operate or work a mine or oil and gas lease. In the absence of an agreement to the contrary it is indispensable to the conducting of the business of oil and gas production that those owning the majority interest in the property have the power to control in case all cannot agree. A member of a mining partnership may sell or transfer his interest as he sees fit, even without the consent or knowledge of other members. A new member may be introduced into the partnership without the consent and even against the wishes of the other members. A mining partnership is not dissolved, as is an ordinary partnership, by the interest of a partner passing to another by sale or by death. For well-recognized legal treatises dealing with the divers subjects referred to in this paragraph see 58 C. J. S., Mines and Minerals, §§ 244 to 248, inch, pp. 685 to 704, inch; 36 Am. Jur., Mines and Minerals, §§ 157 to 166, inch, pp. 391 to 396, inch; Thornton, Oil and Gas, Cumulative Supplement, § 551, p. 131; 4 Summers on Oil and Gas §§ 724 to 734, inch, pp. 154 to 173, inch
It is next contended that it was agreed that there would be no expense incurred over $500.00 in equipping wells or putting them on production unless the expense was first submitted to all parties for approval, hence the trial court committed error in allowing a personal judgment against defendants which included the costs of fracturing two wells and purchasing a string of pipe, each of such items exceeding a cost of $500.00.
The chief difficulty with this contention is the fact that plaintiff attempted to get the defendants to meet with her to discuss the items involving the expenditures but they avoided meeting with her. As she could not obtain their consent, she, as holder of a majority interest, had the right to incur such expenses as were beneficial and necessary to the proper operation of the leases. The fact that a real benefit resulted from the expenditures is not disputed.
The statement made in the case of Stephens v. Allen, 314 Ky. 769, 237 S. W. 2d 72, is appropriate here. It reads:
. . Since the property can be used and operated only as an entirety, it is indispensable that those persons who own the major portions or majority interests have the power to control the conduct of the business in the absence of agreement by all.” (p. 772.)
See, also, 58 C. J. S., Mines and Minerals, § 246(a), p. 692; 36 Am. Jur., Mines and Minerals, § 162, p. 394.
The defendants also contend that, in view of the fact plaintiff requested she be decreed management control and if not that there be a decree of partition, the court erred in holding plaintiff had the right to control the management of the leases and at the same time decreed partition.
This claim is based on a misinterpretation of the trial court’s judgment. The decree necessarily implies that on account of irreconcilable differences between the partners there was no prospect of future profitable operation. The court therefore decreed partition. The plaintiff’s right to control management continued only until partition was effected. Plaintiff’s control of management was in lieu of the appointment of a receiver, which was considered. The court properly concluded that there was no question of fraud, or threatened destruction of the property by leaving it under plaintiff’s control pending partition. (Browning v. Blair, 169 Kan. 139, 218 P. 2d 233.)
Another contention, strenuously argued, is that the court erred in its order of partition. This contention is based more on a question of fact than a question of law. Defendants state in their brief:
“. . . The conduct of the appellee (plaintiff) . . . clearly reflects that she intentionally created confusion and disrupted the management of the mining partnership which was operating profitably . . .”
The trial court did not agree with defendants’ conclusion of fact, The facts heretofore stated refute their contention. In addition the plaintiff testified:
“A. ... I have tried to get the Loriaux sisters to meet with me. I have written to them on numerous occasions and invited them to meet with me on three occasions, giving them at least two alternate dates in case the first one was not suitable to them. They never come nor informed me they could not come.
“Q. Within the last year have you personally invited them? Have jou seen them in person?
“A. One evening about dusk I met them on the road to the leases, within about a mile of the leasehouse itself, and rolled down the car window and asked them to come on out and meet me on the lease. This, they did not do.
“Q. Then what effort had you made since that time, have you tried to operate with them?
“A. Well, I had hoped that before we came to lawsuit we could work out some method to operate these leases for the benefit and profit of all but I was not successful in having any agreement of any sort, wouldn’t agree to anything, and even in the office of Mr. Wheeler we made some efforts to discuss the possibilities of hiring a management company. We had copies of management form agreements but the Loriaux sisters refused to consider them because in each form agreement was the statement in case of misunderstanding a majority ruled. Of course, I could not accept any agreement that would not make that provision.
“Q. What is your feeling now as to whether or not those leases can be operated even with a Court order without a partition?
“A. Well, I feel that even if I were able to operate the leases as the majority controlling interest, there would probably be an argument for every major expense and ensuing lawsuits on every occasion; because I have not been able to come to any agreement in the past, I have no reason to believe that there would be any more cooperation in the future.”
In the face of the facts to which we have previously referred, the evidence just quoted, our decisions to be presently mentioned, and mindful that under the law of this state (see G. S. 1959 Supp., 60-2101 and 60-501) an estate or interest created by an oil, gas or mineral lease is subject to partition, we are convinced the defendants’ position on the point now under consideration lacks merit and cannot be upheld.
Strait v. Fuller, 184 Kan. 120, 334 P. 2d 385, holds:
“After the amendment of G. S. 1949, 60-2101, by L. 1953, Ch. 276, § 6, the owner of an undivided interest in an oil and gas leasehold estate may file a sufficient petition for partition of the leasehold estate without alleging special reasons for the intervention of a court of equity.” (Syl. f 1.)
In Hurley v. Painter, 180 Kan. 552, 306 P. 2d 184, we held:
“In an action to partition real estate under G. S. 1949, 60-2101 to 60-2114, it is held that in administering the provisions of the pertinent sections of the code, the trial court has the same powers as were exercised by chancery courts under equity practice, including full power to settle all questions involved on just and equitable principles.” (Syl. ¶ 5.)
And in Johnson v. Burns, 160 Kan. 104, 159 P. 2d 812, it is said:
“. . . Ordinarily where there is as wide a discretion reposed in a trial court as is reposed in it in partition actions we are reluctant to interpose our judgment for that of the trial court. (See State v. Foren, 78 Kan. 654, 97 Pac. 791, also Deeds v. Deeds, 108 Kan. 770 [774], 196 Pac. 1101.)” (p. 111.)
In conclusion it should be stated we have not attempted to here answer all arguments advanced by zealous counsel for the parties in support of their respective positions on this appeal. Many of them have become immaterial and purely academic in view of the conclusions heretofore announced and for that reason require no discussion. Others, not regarded as of sufficient importance to warrant space in the opinion, have been considered and rejected.
Therefore, since we find no error in the record which warrants or permits a reversal of the judgment it must be affirmed — and it is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
Defendant was convicted of kidnapping in the first degree (G. S. 1961 Supp., 21-449) and of murder in the first degree (G. S. 1949, 21-401). He was sentenced to life imprisonment on each charge, the sentences to run consecutively. He has appealed from the denial of his motion for a new trial.
At about 7:30 o’clock on the morning of July 1, 1960, the naked body of a deceased woman, later identified as Lora Guinn, was discovered upon the floor of a kitchen in a vacant farm house located about ten miles northeast of Wichita. The body was lying in a pool of blood and had been stabbed with a sharp instrument fourteen times. Her clothing was hanging on a nearby pipe. Following the discovery of the crime, photographs of the house, the body and the clothing, were published in the Wichita newspapers.
During the month of July, 1960, several girls in Wichita had received lewd letters from the defendant in which he proposed meetings and dates. The girls did not know defendant and the letters were turned over to the police. Defendant had recently served a sentence at the Wichita prison farm as a result of a conviction of driving while intoxicated. On the evening of July 22,1960, police officers contacted defendant at his home and requested that he accompany them to the police station in connection with matters pertaining to the revocation of his driver’s license. They also had in mind to interrogate him concerning the lewd letters he had written to the various girls. He admitted writing the letters and said drat he knew other women in the area. The officers then inquired who some of those women might be. The first name mentioned by the defendant was “Lora Guinn.” Reing possessed of this lead, the officers then secured a picture of Lora Guinn. Defendant identified the picture as being that of the woman he was talking about. The officers then told defendant that they intended to discuss something of a “far more serious nature” and advised him fully as to his constitutional rights in the matter. No threats or promises were made to him and he was advised that he was not required to make any statements. Following further discussion and questioning, defendant then admitted that on the night of June 30, 1960, he saw Lora Guinn at a street corner by a bus stop; that he drove up to her, opened the car door, threatened her with a knife, and pulled her into his car. He then drove to the farm house in question and forced her into the house, all of the time threatening her with the knife. Once inside the kitchen he disrobed her and forced her to lie on the floor. When he attempted to ravish her she kicked him — which made him “mad.” He then stabbed her in various parts of her body with the knife and later returned to his home.
Three sets of officers — the police, sheriff’s officers, and those of the Kansas Rureau of Investigation — interviewed and questioned defendant, and on each occasion he admitted the crime. The following morning he was questioned by the county attorney in the presence of officers, and his detailed statement was taken down by a court reporter, following which he was charged with kidnapping in the first degree and murder in the first degree. As previously stated, he was convicted of both charges, and has appealed from the denial of his motion for a new trial.
The first two specifications of error may be considered together. They are that the court erred in refusing the testimony of one of the detectives given at the hearing in the absence of the jury as to the voluntariness of the confession, to be read to the jury, and that the court erred in allowing the confession, either oral or written, to be received in evidence.
In this connection, the record shows that outside the presence of the jury the court conducted a hearing on the question relating to the voluntariness of defendant’s confession. Defendant concedes that the trial court followed the law with respect to this matter in every detail, but it is contended there was a variance in the officer’s testimony given before the jury and that given by him to the court outside the presence of the jury. An examination of the record discloses this contention is utterly lacking in merit, and defendant was not restricted in his examination or cross-examination of the officer or of any other officer connected with the investigation and interrogation of defendant.
And neither did the court err in allowing the confession to be received in evidence. It was clearly established that defendant had been advised of his constitutional rights, and that his statements in the nature of a confession were not the result of any threats or promises. Some mention is made of the fact of the length of time consumed in the interrogation of defendant. Under the circumstances shown by the record, however, the length of time involved is easily and logically explained, and at no time was defendant “pressured” into talking. Defendant was twenty-nine years old, and while there is evidence to the effect that he was a person of “rather low mentality,” there is absolutely nothing in the record to indicate that his confession was anything other than voluntarily given. The facts and circumstances present in State v. Oberst, 127 Kan. 412, 273 Pac. 490; Claflin v. State, 154 Kan. 452, 119 P. 2d 540, and State v. Seward, 163 Kan. 136, 181 P. 2d 478, opinion on rehearing 164 Kan. 608, 191 P. 2d 743, cited by defendant, are so dissimilar to those before us as to be of no assistance to him. There is no contention that the circumstances in connection with the obtaining of the confession amounted to a denial of due process, and it was not error to admit the same in evidence.
It next is contended that, aside from the confession, there was an utter lack of evidence to establish the corpus delicti of the kidnapping charge, and, such being the case, the confession, standing alone, is insufficient to support the conviction of kidnapping, and that defendant is entitled to his discharge as to that offense. The case of The State v. Cardwell, 90 Kan. 606, 135 Pac. 597, LRA 1916B 745, is cited, but reference to that case discloses that the requirements to establish the corpus delicti were fully met by the evidence in the case before us, not only by circumstantial evidence but from the physical facts. The body of this woman was found in the vacant farm house. Defendant knew how to get there. She had a gag on her mouth and had been stabbed to death. It is unnecessary to use a knife if a person goes willingly, and it also is unnecessary to gag one who goes willingly. As indicated by the Cardwell case, above, the rule is well established that evidence sufficient to corroborate a defendant’s extra-judicial confession of a crime may be in the form of circumstantial evidence. The circumstances here, together with the physical facts, considered in connection with defendant’s confession, were ample to support the conviction of the kidnapping charge.
It next is contended the court erred in not allowing the testimony of one Madge Pannell to be received and considered upon the hearing of the motion for a new trial. In this connection defendant offered the testimony of this witness to the effect that she had seen Lora Guinn in a tavern in Wichita at approximately 12:30 a. m., on July 1, 1960, in the company of a male person unknown to the witness, but that such male person was not the defendant, and that with due diligence the evidence of this witness was not available at the time of trial because counsel for defendant did not have in his possession, and was unable to obtain, a photograph of Lora Guinn which could be identified by the witness as being that of the woman she had seen in the tavern about seven hours prior to the discovery of her body. The record of what transpired at the hearing on this matter is not abstracted, but the trial court found that a photograph of Lora Guinn could have been located and therefore could have been available in time to present such evidence at the time of trial — and therefore denied the offer. There is no showing whatever that the court in any way abused its discretion with respect to this matter, and defendant’s contention cannot be sustained.
The final specification of error is that the court erred in denying defendant’s motion for a new trial on the four grounds heretofore discussed.
Throughout tire trial defendant was represented by competent counsel of his own choosing. No contention is made concerning instructions given or refused, and it must be presumed the jury was fully and properly instructed on all matters in issue. Medical evidence was to the effect defendant knew “right from wrong,” but that he was perfectly “capable” of committing the offenses. Other than his formal plea of “not guilty,” defendant at no time denied the charges, and neither did he repudiate his confession nor deny that it was voluntary. His evidence consisted chiefly of testimony by members of his family in the nature of an alibi, which apparently was completely disbelieved by the jury. Portions of defendant’s detailed statement to the interrogating officers, concerning where he had parked his car, and as to the location of doors, and other physical facts concerning the vacant house, were such as to leave absolutely no doubt but that it was he who had been to and gained entry to the house at the time and place in question. A careful examination of the record presented fails to disclose anything approaching prejudicial error. The motion for a new trial was properly denied and the judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This action for a declaratory judgment was filed in Graham County. The plaintiffs, some twenty-four common and high school districts of the State, challenged the constitutionality of Chapter 361, Laws of 1961, which now appears as G. S. 1961 Supp. 72-6701, et seq. This act has become known as the Unified School District Act. The district court heard the parties as soon as the pleadings were filed and found the Act violated the state constitution in a number of particulars including the charge that it unlawfully delegated legislative authority. The defendants promptly appealed to this court.
Because of the urgency of the issues involved, the court set the appeal for argument in the November session. However, the court was dissatisfied and felt counsel had not had time to properly study the case and assigned it for reargument at the January session. The parties rebriefed the case and it was reargued, and a number of briefs amici curiae also were submitted.
Because of the necessity for an early decision, this brief opinion is being filed at once. A more formal and complete opinion will follow when it is prepared.
1. The court is of the opinion that the Act in question unlawfully delegates legislative power to the county boards of school planning in violation of Article 2, section 1 of our constitution. The court believes that, despite the fact some standards are contained in section 2 of the act, adequate standards are not provided for such county planning committees. It will be noted that section 4 of the act which apparently endeavors to explain the powers of the county committees as to setting boundaries is quite similar to section 72-5607, G. S. 1945 Supp., which was found wanting as to setting of standards in the case of State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865. In short, the county planning committees are not given adequáte standards to enable them to act as administrative bodies.
While the above shortcoming in the act is sufficient to render the entire act unconstitutional, we note a few other infirmities.
2. Section 29 of the act would seem to contain matter not covered in the title of the act since it appears that the unified school districts referred to in section 29 are districts which are not organized “by a vote of the people” as the title provides. Thus Article 2, section 16 of the state constitution would appear to be violated.
3. Section 21 of the act appears to be indefinite on the question whether the new unified districts should become responsible for the bonded indebtedness of the old districts absorbed; whether the new districts might take the assets of the old districts without assuming the bonded indebtedness, and whether certain other statutes on this subject are repealed by implication.
The court, in the limited time available, has been unable to give full and complete consideration to all questions involved. If, after further deliberation, it finds other defects in the act they will be mentioned and discussed in the opinion to follow. In fairness to the parties involved it should be stated that the exception to section 3 of the act, as it applies to Greeley County, is felt by some members of the court to constitute a constitutional infirmity.
From what has been said the judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action by a minor, by and through her father as natural guardian and next friend, to recover for personal injuries as a result of being struck by defendant’s automobile.
The appeal is from orders sustaining defendant’s motions to make definite and certain, and to strike.
The petition, which was filed on May 2, 1960, alleges the injuries were sustained on May 23, 1956. After alleging the facts of the accident and the extent of the injuries, paragraph 5 of the petition states that plaintiff “has sustained loss for medical expense, examination and treatment in the total amount of $535.00, and will continue to incur additional expense in the future in an amount unknown to her.”
The prayer seeks recovery in the amount of $10,000.
Defendant filed a motion to make paragraph 5 of the petition definite and certain by setting out the dates on which the medical expense was incurred; to itemize such expense; by stating whether plaintiff has paid the amount alleged, and whether the services were rendered upon credit extended to her individually. The motion further sought more information concerning the permanent injuries alleged.
This motion was sustained, and plaintiff filed an amended petition in compliance with the order. Paragraph 5 thereof contains the above-quoted allegations of the original petition, and then follow allegations of nine items of medical expense — (a) to (i), inclusive. Four of the items were fisted as being charged to plaintiff’s father, and one to plaintiff. Three were fisted as having been paid by an insurance company, and the bill for the remaining item was fisted as having been addressed to a named Kansas City attorney.
Each of the items of expense was incurred more than two years prior to the fifing of the action.
Defendant then filed a motion to make the amended petition definite and certain concerning a matter not here material, and to strike the nine items of medical expense, above mentioned, on the ground “that said items are not recoverable expenses or damages.”
This motion also was sustained, and plaintiff has appealed from all adverse rulings.
Because of the disposition being made of this appeal, no useful purpose would be served by stating the contentions of the parties or by discussing the early case of Abeles v. Bransfield, 19 Kan. 16, relied on by both parties.
Be that as it may, and regardless of what may have been the reasons for the trial court’s rulings in question, we are at the outset concerned with the question of jurisdiction of this court to entertain the appeal — although the matter is not urged by defendant.
The rule is that on appellate review this corut must always inquire as to its own jurisdiction, even though the question is not raised by either party. (In re Estate of Hilliard, 170 Kan. 617, 228 P. 2d 536; Kimel, Executor, v. Briggs, 183 Kan. 315, 328 P. 2d 746.)
A further rule is that motions to strike and to make definite and certain rest in the sound discretion of the trial court, and rulings thereon are not appealable unless they affect a substantial right and in effect determine the action. (Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Billups v. American Surety Co., 170 Kan. 666, 670, 671, 228 P. 2d 731; Broberg v. Boling, 183 Kan. 627, 331 P. 2d 570; Wescoat v. State Highway Commission, 187 Kan. 228, syl. 1, 356 P. 2d 841.)
Plaintiff’s principal complaint here is that the court struck from the amended petition the nine items of medical expense. Such ruling, however, in view of the remaining above-quoted allegations, does not preclude plaintiff at the trial of the action from offering evidence in support of her general allegations as to medical expense. At this stage of the case, we of course express no opinion as to what the trial court’s ruling as to the admissibility of such evidence should be. The extent of our holding is that none of the orders appealed from is a “final order” within the meaning of G. S. 1949, 60-3302 and 3303, and that this court has no jurisdiction to entertain the appeal.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from an order of the district court dismissing the appellants’ appeal from an order of the probate court denying probate of the last will and testament of Frank D. Unruh, deceased. The appellants, devisees under the last will and testament of the decedent, timely filed their notice of appeal in the probate court, and the sole question presented is whether the notice of appeal and the service of that notice complied with the requisites of G. S. 1949, 59-2405 to confer jurisdiction upon the district court to hear the appeal.
The notice of appeal was addressed to fifty-five named heirs at law of the decedent as adverse parties, to the attorneys of record of four of them (the appellees), and also to,
“the Hon. Robert B. Booz, Probate Judge of McPherson County, Kansas, for the above named adverse parties if any and to Dora Pack, Probate Judge Pro Tem for the above adverse parties, and all other adverse parties if any, and to John K. Bremyer, administrator of the estate of Frank D. Unruh, deceased.”
The notice of appeal and the acknowledgment of service were contained in one instrument. No attempt was made to serve the notice upon the adverse parties individually, or their attorneys of record, nor was the notice served upon Robert R. Rooz individually as probate judge. It was served upon Dora Pack, probate judge pro tem, who acknowledged service in writing in the following manner:
“Received the within and foregoing Notice of Appeal and duplicate copy thereof this 31st day of December, 1959.
Dora Pack,
Probate Judge Pro Tem.”
On March 15, 1960, the appellees, heirs at law of the decedent, but not devisees under his purported last will and testament, filed their joint motion to dismiss the appeal upon the following grounds:
“1. That the notice of appeal is insufficient and defective.
“2. That no proper notice of appeal was served upon the adverse parties in this case as provided by law.
“3. That no proper notice was served upon Robert B. Booz, Probate Judge of McPherson County, Kansas for all of the adverse parties.
“4. That no proper notice of appeal was served upon David Harms, an heir of said decedent and one of the adverse parties herein.
“5. That no proof of service of the notice of appeal was filed in the Probate Court.”
On September 23, 1960, the appellees’ motion was heard by the district court which sustained it, and denied the appellants’ oral and written application to permit showing of service of notice of appeal by affidavit. No evidence was introduced at the hearing of the motion, and both parties concede the notice of appeal omitted the name of one David Harms, an heir at law of the decedent and one of the adverse parties to the appellants’ appeal. Also, that while the notice of appeal was addressed to Bertha Janzen, one of the decedent’s sisters, it failed to name Jack O. Bowker, the duly appointed guardian ad litem for Bertha Janzen, an incompetent person.
In support of the district court’s order dismissing the appeal, the appellees contend that when the appellants undertook to name all of the adverse parties in the notice of appeal which they concede faffed to name David Harms and the guardian ad litem of Bertha Janzen, and since the notice of appeal to the probate judge and to the probate judge pro tem was specifically limited “for the above named adverse parties,” and “for the above adverse parties,” respectively, the inclusion thereafter of the separate phrase, “and all other adverse parties if any,” was a complete nullity and did not comply with G. S. 1949, 59-2405. Further, that since the appellants selected their own alternative of naming specific, but not all, adverse parties, that is, omitting David Harms and the guardian ad litem for Bertha Janzen, they cannot deviate from such alternative by a general clause set off by separate punctuation which does not follow the precise and controlling language of the statute which reads: “the probate judge for the adverse party,” and argue that the instant notice of appeal is controlled by In re Estate of Demoret, 169 Kan. 171, 218 P. 2d 225. In that case the notice of appeal was addressed to and served upon certain adverse parties. Service was also had upon the probate judge “for the adverse parties to whom this notice is addressed.” The persons named in the notice of appeal did not include all of the adverse parties. It was held that the service of the notice upon the probate judge was not service upon those persons who were omitted because the service upon the probate judge was limited and restricted to the persons named therein and the district court acquired no jurisdiction over the attempted appeal from the probate court because of failure to serve notice on all adverse parties.
The perfection of an appeal from the probate court to the district court is a simple matter. The party making the appeal shall serve upon all adverse parties or their attorneys of record, or upon the probate judge for the adverse parties a written notice of appeal specifying the judgment or decision appealed from, and make proper proof of service. (G. S. 1949, 59-2405.) It is not required that service be had upon all three to perfect the appeal; proper service upon any one of the three named is sufficient. (In re Estate of Patterson, 185 Kan. 135, 136, 340 P. 2d 369.)
Was the notice and proof of service sufficient in the instant case to confer jurisdiction upon the district court? We think it was. Referring to that part of the notice of appeal addressed to the probate judge, had it ended after the language “to the Hon. B. Booz, Probate Judge of McPherson County, Kansas, for the above named adverse parties if any” it would have been insufficient to confer jurisdiction upon the district court and would be controlled by In re Estate of Demoret, supra. That part of the notice was specifically restricted and limited to service upon Robert B. Booz, probate judge “for the above named adverse parties,” and since it is conceded that the notice was not addressed to Robert Harms and to the guardian ad litem of Bertha Janzen, service would not have constituted notice to all of the adverse parties as required by the statute and would have been insufficient to confer jurisdiction upon the district court to hear the appeal. See, also, In re Estate of Bergner, 173 Kan. 582, 250 P. 2d 781. But, the notice of appeal did not stop there. It was also addressed “to Dora Pack, Probate Judge Pro Tem for the above adverse parties, and all other adverse parties if any.” Contrary to appellees’ contention, the clause referred to as a general clause set off by separate punctuation, that is, “and all other adverse parties if any,” was a part of the notice of appeal addressed to Dora Pack, probate judge pro tem, and was sufficient to comply with the statute requiring service upon “the probate judge for the adverse party.” (In re Estate of Kruse, 170 Kan. 429, 432, 226 P. 2d 835; In re Estate of Waugh, 183 Kan. 120, 122, 325 P. 2d 38.)
The acknowledgment of service signed by Dora Pack has been heretofore set forth, and the fact that the acknowledgment did not include the words “for the adverse parties,” or “for all other adverse parties,” or words of similar import, was not a fatal omission of the acknowledgment, nor did it render the service insufficient. In In re Estate of Patterson, supra, it was said:
“The notice of appeal and the acknowledgment of service were contained in one instrument, and this court is of the opinion that inasmuch as the notice of appeal was to the probate judge for all adverse parties, the acknowl edgment of service by him of a true and correct copy of such notice ‘in the therein entitled matter’ was service for all adverse parties to whom the notice of appeal was directed, and was sufficient to perfect the appeal to the district court.” (1. c. 137.)
The appellees contend that because the notice of appeal was addressed to Robert B. Booz, he was required to acknowledge service of the notice of appeal individually as probate judge. We think the appellees’ interpretation of the statute is too narrow. The probate judge may appoint a probate judge pro tem to act during his absence or his incapacity. (G. S. 1949, 59-203; Price v. Gibson, 165 Kan. 10, 16, 192 P. 2d 219; 1 Bartlett’s Kansas Probate Law and Practice [Rev. ed.], §§ 50, 51, p. 45.) Hence, Dora Pack’s acknowledgment of service of the notice of appeal was service upon the probate judge. (In re Estate of Waugh, supra.)
The appellees lastly argue that G. S. 1949, 59-2405 requires the appealing party to file in the probate court an affidavit that he has made proof of service of the notice of appeal upon one of the three persons named in the statute, and since the appellants concede they did not make and file an affidavit of proof of service, the acknowledgment of service by Dora Pack was insufficient to comply with the statute and did not constitute proper service of the notice of appeal. The point is not well taken. In In re Estate of Patterson, supra, the notice of appeal was served upon the probate judge who acknowledged service of such notice “in the therein entitled matter,” which did not contain the words “for the adverse parties.” It was held that the acknowledgment of service by the probate judge dispensed with the necessity of proof of service by affidavit under the statute, and Polzin v. National Cooperative Refinery Ass’n, 180 Kan. 178, 302 P. 2d 1003, was cited as controlling. In Polzin it was said:
“. . . It is unnecessary for the party making the appeal to file proof of service by affidavit where service is acknowledged in writing since, in our opinion, the acknowledgment of service in writing constitutes a waiver of proof of service under the statute.” (1. c. 179.)
That holding was re-examined and affirmed in Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341; Martin v. Forestry, Fish and Game Commission, 185 Kan. 796, 347 P. 2d 276; Nicolay v. Parker, 185 Kan. 481, 482, 345 P. 2d 1013; Krehbiel v. Juhnke, 186 Kan. 514, 516, 351 P. 2d 206, and National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447.
While it is true the Polzin case construed G. S. 1949, 60-3306 which relates to the manner of perfecting appeals to the supreme court in civil cases, we think the reasoning and holding there applicable to the construction of G. S. 1949, 59-2405 relating specifically to the perfecting of an appeal from the probate court to the district court. Each statute requires that service of the notice of appeal shall be proved by affidavit; the former provides that “proof of such service shall be made by affidavit,” and the latter provides, “proof of service thereof verified by his affidavit.” The affidavit is merely proof of notice and we think it no stronger than the acknowledgment of service by the attorney of record or the probate judge. We hold that where the probate judge acknowledges service of the notice of appeal in writing, as the record in this case indicates Dora Pack did, such acknowledgment constitutes a waiver of proof of service, and is sufficient to comply with the statute to perfect the appeal. (In re Estate of Kruse, supra; In re Estate of Waugh, supra; In re Estate of Patterson, supra.)
The judgment of the district court is reversed with directions to reinstate the appeal and hear and determine the issues presented. It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a workmen’s compensation proceedings where the commissioner made findings and granted an award in favor of the workman. On appeal to the district court such award and findings, plus two additional findings of its own, were adopted by the trial court and this appeal therefrom was perfected by the respondent employer and its insurance carrier.
The facts, in brief, are that claimant was employed by respondent as a janitor, and on March 21, 1959, at approximately 4:00 p. m. while claimant was cleaning a “Pan-O-Mat”, he suffered a cutting pain in his chest. He tried to continue working but the pain increased in severity to the extent that he had difficulty in getting his breath. No one else was in his employer’s place of business at the time. About 4:30 p. m. he went home, ate his supper, and retired. Retween 4:00 and 5:00 o’clock the next morning the pain became much worse and he vomited. A doctor was called and claimant was immediately taken to the hospital where his injury was diagnosed as coronary thrombosis.
Since the trial court approved and adopted the findings of the commissioner and made the two additional independent findings that it did in regard to notice and the only question involved in this case is whether respondent had notice of the accidental injury, in considering that point we are faced with these particular findings of fact by the trial court:
Respondent had notice of claimant’s accidental injury and written claim was timely made; a payment made on September 18, 1959, could only be considered as a voluntary informal payment by the respondent to claimant; such payment was made by respondent as additional compensation to claimant; there was no evidence the parties believed or maintained the payment of September 18, 1959, was owed under any accident or health insurance policy, and, in fact, both taxes and social security were withheld from the payment of compensation. The trial court found this to be a voluntary payment of compensation which supported the finding that written claim and notice were timely made and given.
Respondent and its insurance carrier are here attempting to have this court do what we have held on numerous occasions we are not permitted to do under the workmen’s compensation act, and that is to re-examine the facts for the purpose of making different findings from those of the trial court. They admit our jurisdiction on appellate review is limited to the determination of questions of law (G. S. 1959 Supp., 44-556; Rutledge v. Sandlin, 181 Kan. 369, 370, 310 P. 2d 950; Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 346, 356 P. 2d 804) and this extends only to an examination of the record to ascertain if there is any competent, substantial evidence to support the findings of the trial court.
Summarized, the pertinent evidence here is that after receiving information of his father’s heart attack and the fact that he was in the hospital, claimant’s son, on March 22, 1959, told respondent’s superintendent “about it.” The superintendent testified claimant’s son told him his father had had a heart attack early that morning and he would not be back to work for a while. Insurance forms to be filled out by claimant and his doctor were obtained from the respondent by claimant’s son. According to the testimony of respondent’s office manager, these forms referred to group accident and health insurance provided by respondent from which checks for claimant totaling $892.65 were received by respondent from its insurance carrier and then turned over to claimant. Conversations were had between claimant and respondent’s superintendent and president regarding a check claimant received from respondent dated September 18, 1959, for $40.42 which represented gross earnings of claimant in the amount of $51.00 less social security and withholding taxes. During these conversations, which took place for approximately two weeks prior to September 18, 1959, claimant asked to be permitted to come back to work but respondent’s officers told him they had decided it would be better not to let him come back because they were afraid he would come back and work too hard.
In Almendarez v. Wilson & Co., 188 Kan. 303, 362 P. 2d 1, a workman was injured on November 27, 1957. He “suffered out” the rest of that day’s work, did- not return to work the next day because it was Thanksgiving, and later was off work from time to time. He merely told his employer that he was sick. He became totally disabled on February 12, 1958, at which time he reported to his employer that his back was troubling him, but still he did not indicate any claim of compensation for the reason he was afraid his employer would let him go. Subsequent to an operation, which caused some permanent disability, the employer discharged the workman who on July 14, 1958, filed a workmen s compensation claim. This court affirmed the finding of the trial court that the workman’s claim for compensation was filed in time. We think our present case is much stronger than the Almendarez case regarding respondent’s actual knowledge of claimant’s accidental injury (G. S. 1949, 44-520) and from the overall record we cannot agree with respondent’s contention there is no evidence to support the findings of the trial court. We think the trial court was correct in its ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
Appellee Marley sued appellee Lewis in the court of common pleas of Sedgwick county, alleging that the defendant had run a large truck into the back of plaintiff’s automobile while plaintiff was stopped behind other cars at a stop sign. The truck belonged to the city of Wichita and defendant Lewis was an employee of the city.
It would appear that defendant Lewis defaulted and that on November 30, 1959, plaintiff recovered a judgment in the sum of $1,000 against Lewis. In due time, the judgment was certified from the court of common pleas to the district court, and thereupon writs of execution and garnishment were issued. The writ of garnishment was directed to the appellant Jersey Insurance Company and was designed to cover an insurance policy covering Lewis’ personal Chevrolet. The insurance company in due time filed an answer to the garnishment and denied any liability on the insurance policy upon the ground that a certain exclusion clause in the policy provided that the insured would be covered when at work only if he were driving an automobile; and since insured Lewis had been driving a large cement mixer truck, he was not insured. Plaintiff Marley took issue with the answer of the garnishee insurance company, and alleged that at the time Lewis had reported his accident with plaintiff to the Motor Vehicle Department he had shown the policy above described on his Chevrolet and caused the department to issue a form SR 21 to the Jersey Insurance Company. The form SR 21 asked the insurance company to notify the department if the policy did not cover the above accident. The insurance company made no reply to the SR 21 form giving the impression that the policy was in effect and covered the above described accident.
The wording of the provisions of G. S. 1961 Supp., 8-729c, is as follows:
“(c) upon receipt of notice of such accident from the department, the insurance company or surety company named in such notice shall notify the department in such manner as it may require in case such a policy or bond was not in effect at the time of such accident.”
The plaintiff Marley now argues that the insurance company, having failed to assert the above described exclusion, is now es-topped to assert it and must treat appellee Lewis as if the insurance policy fully covered Lewis as the named insured.
It is argued that holding the company liable will have the effect of making the Safety Responsibility Act more effective. The district court was in accord with this idea and entered judgment on the garnishment for plaintiff Marley.
The various decisions from sister states do not show that contracts can be made over and held for naught under statutes like our Safety Responsibility Act.
The following authorities would refuse to hold the insurance company liable even though it failed to reply to the SR 21: Seaford v. Insurance Co., 253 N. C. 719; 117 S. E. 2d 733; Hoosier Cas. Co. of Indianapolis, Ind. v. Fox, 102 F. Supp. 214; State Farm Mutual Automobile Ins. Co. v. West, 149 F. Supp. 289.
Plaintiff relies especially upon the decisions of the Wisconsin Supreme Court and also cites and quotes from an interesting unreported federal decision applying the Arizona statute.
It will be noted that section 8-729c actually only requires the insurance company to reply if the policy was not in effect at the time of the noted accident. The wording of the Kansas SR 21 form tends to clear the matter a little.
The policy involved in this case was fully in effect at the time of the accident here involved. The only trouble was that the policy did not cover this accident because of the provisions of an exclusion clause.
The argument of the plaintiff is considerably overcome by defendant insurance company’s reference to the case of Pirc v. Kortebein, 186 F. Supp. 621. The Pire case is found in appellant’s reply brief and is from the federal district court for the eastern division of Wisconsin. It cites and relies upon the recent case decided by the Supreme Court of Wisconsin, Bean v. Kovacik, 10 Wis. 2d 646, 103 N. W. 2d 899.
Both the federal court and the supreme court of Wisconsin held that where an accident came within an exclusion clause of an insurance policy that the insurance company might rely on the exclusion clause as a defense to the suit on the policy although it had failed to answer the SR 21 form and advise that the accident was not covered because of the exclusion clause.
These two cases have the effect of destroying the application of plaintiff’s Wisconsin authorities. They show that if this case at bar were before the Wisconsin court the insurance company might assert the exclusion clause and show that Lewis had no insurance covering the accident.
Under the authorities now at hand, plaintiff must fail to obtain her judgment against the insurance company, and the judgment of the court below must be reversed. It is hereby so ordered.
Robb, J., dissents. | [
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The opinion of the court was delivered by
Jackson, J.:
This action for a declaratory judgment was filed in Graham County. The plaintiffs, some twenty-four common and high school districts of the state, challenged the constitutionality of Chapter 361, Laws of 1961 which now appears as G. S. 1961 Supp. 72-6701 et seq. This act has become known as the Unified School District Act. The district court heard the parties as soon as the pleadings were filed and found the Act violated the state constitution in a number of particulars including the charge that it unlawfully delegated legislative authority. The defendants promptly appealed to this court.
Because of the urgency of the issues involved, the court set the appeal for argument in the November session. However, the court was dissatisfied and felt counsel had not had time to properly study the case and assigned it for reargument at the January session. The parties rebriefed the case and it was reargued. A number of briefs amici curiae also were submitted.
Realizing the importance of the case and believing that it might be of value to have a decision as early as possible, the court on January 27, 1962, handed down an opinion affirming the judgment of the district court. The court reserved the right to write a more adequate opinion later if necessary. The present opinion will add a few observations which may make clearer our former decision, School District, Joint No. 71 v. Throckmorton, 189 Kan. 259, 368 P. 2d 367.
The court is of the opinion that the Act in question unlawfully delegates legislative power to the county boards of school planning in violation of article 2, section 1 of our constitution. The court believes that, despite the fact some standards are contained in section 2 of the act, adequate standards are not provided for such county planning committees. It will be noted that section 4 of the act, which apparently endeavors to explain the powers of the county committees as to setting boundaries, is quite similar to section 72-5607 G. S. 1945 Supp. which was found wanting as to setting of standards in the case of State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865. The Hines case and authorities cited therein show that the fixing of boundaries as well as other qualifications of school districts are legislative powers. In short, the county planning committees are not given adequate standards to enable them to act as administrative bodies.
While the above shortcoming in the act is sufficient to render the entire act unconstitutional, we note a few other infirmities.
Section 29 of the act would seem to contain matter not covered in the title of the act since it appears that the unified school districts referred to in section 29 are districts which are not organized “by a vote of the people” as the title provides. Thus article 2, section 16 of the state constitution would appear to be violated.
It was noted in the first opinion of the court that some members were uncertain as to the provisions concerning Greeley county. Section 29 of the act would seem to leave Greeley county out of the act entirely because of a fault in the title of the act.
Section 21 of the act seems to be indefinite on the question whether the new unified districts should become responsible for the bonded indebtedness of the old districts absorbed; whether the new districts might take the assets of the old districts without assuming the bonded indebtedness, and whether certain other statutes on this subject are repealed by implication.
There would appear to be good reason to believe that the legislature failed to always follow the provisions of article 2, section 16 of the state constitution in writing the statute now under consideration.
The court is fully cognizant of the need for adequate and good schools but the state constitution must be upheld. We are quite certain that a valid statute along the lines of the present statute may be drawn. However, from what has been said the judgment of the district court must be affirmed. It is hereby so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal by the state from an order of the district court of Lyon County, Kansas, discharging the defendant, Ronnie Hill. The information charged that on July 30, 1961, the defendant, the assistant manager of the Safeway Store at Emporia, did unlawfully and willfully expose to sale and did sell certain merchandise, to-wit: Three packs of Chiclets chewing gum, one box of Blue Cheer soap, and one can of Dash dog food, on the first day of the week, commonly called Sunday, the said merchandise not being within the exemption of G. S. 1949, 21-956, contrary to law. (G. S. 1949, 21-955.)
On August 10, 1961, the defendant appeared in person and with counsel and entered a plea of not guilty. The state and the defendant entered into a written statement of fact which was agreed to, and a jury being waived, trial was by the court. Thereafter the defendant filed a motion to quash the information, the ruling on which was reserved by the court until the completion of argument by counsel. The defendant also filed a motion to dismiss the information and to discharge him on the grounds that G. S. 1949, 21-955, on which the information was based, when construed with G. S. 1949, 21-956, is so vague, indefinite and uncertain that he was unable to ascertain what was or was not permitted to be sold under the statute in violation of rights granted him under sections one and ten of the bill of rights of the constitution of Kansas and the fifth (sic) amendment to the constitution of the United States.
At the conclusion of the argument the district court overruled the defendant’s motion to quash the information, but sustained his motion to be discharged. In rendering judgment the court filed a written memorandum opinion in which it concluded that “the exception to the statute in question contains words that are so general, vague and indefinite that individuals charged with administering this penal statute are unable to determine the meaning of the same. The statute is declared inoperative and void. . . . Defendant is discharged.” The state timely appealed, having reserved the question. (G. S. 1949, 62-1703, third.)
The crux of the appeal is the validity of G. S. 1949, 21-955 and 21-956, under which the prosecution was commenced, and it follows that if the statute can be sustained, the information cannot be questioned since it followed the language of the statute. (State v. Ashton, 175 Kan. 164, 173, 262 P. 2d 123.) In seeking reversal, the state concedes that although the statute, in substantially the same form, has been a part of the law of the territory and state of Kansas since 1855, it has not heretofore been challenged on the grounds presently urged. Hence, our previous decisions are not helpful in deciding the constitutional questions presented.
As preliminary to discussing those questions we note briefly the historical background of the sections directly involved. They were originally enacted in 1855 (L. 1855, Ch. 53, Sec. 34 and Sec. 35) by the so-called “bogus legislature” and were taken bodily from the Missouri statute, where they were originally enacted in 1825, and, with some amendments, continue to be the law of that state. When enacted in 1855 they read:
“Sec. 34. Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery, or tippling shop, or shall sell or retail any fermented or distilled liquor, on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars.
“Sec. 35. The last section shall not be construed to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity.”
The sections were repealed by the Territorial Legislature of 1859 (Ch. 89, Sec. 1, General Laws of Territory of Kansas, 1859) and were re-enacted at that session (Ch. 28, Sec. 248 and Sec. 249). They were embodied in our General Statutes of 1868 in Chapter 31, Sections 258 and 259 relating to crimes and punishments. They remained unchanged and were included in all of the subsequent general statutes of the state until the Commission to Revise the General Statutes of 1923 revised the first section (21-955) by eliminating reference to intoxicating liquors which were covered by other laws, but the second section (21-956) was not changed. As revised, they were embodied in the Revised Statutes of 1923. The sections appear in the General Statutes of 1949 and read:
“21-955. Every person who shall sell or expose to sale any goods, wares or merchandise, or shall keep open any grocery, on the first day of the week, commonly called Sunday, shall on conviction be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars.
“21-956. The last section shall not be construed to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity.”
In support of its contention the district court erred in discharging the defendant, the state contends that the sections involved are independent statutes; that 21-955 makes it an offense to sell or expose to sale on Sunday any goods, wares or merchandise, and that those terms have well-settled meanings in law; that there is nothing vague, uncertain or indefinite about them, but actually, and with a reasonable degree of certainty, they define the offense intended to be prohibited. It asserts that 21-956 neither creates an offense nor imposes a penalty, and does nothing more than withdraw from the scope of 21-955 the sale or exposure to sale on Sunday of “any drugs or medicines, provisions, or other articles of immediate necessity” and lawfully permits their sale notwithstanding the broad prohibition of 21-955; that 21-956 is merely defensive and if a defendant can show the articles he is charged with selling were those excepted by that section, he cannot be convicted, but the burden rests upon the seller to establish the need for the articles was that of the purchaser and resulted from circumstances in the nature of an unexpected emergency, or if foreseen by the purchaser, was such that it could not have been reasonably provided against, and urges that no sufficient reason exists to hold the statute vague or ambiguous.
The defendant strenuously argues the two sections must be construed as one statute to determine whether an offense has been committed; that while 21-956 excepts certain articles enumerated in 21-955, it has precisely the same meaning as if it were appropriately incorporated in that section; that as so construed, the statute is vague and indefinite and no adequate practical meaning can be found for the phrase “or other articles of immediate necessity” because the word “necessity” as used, is flexible, relative and impossible to define and has no reference to any objective standards; consequently, the statute fails to inform those subject to its provisions of the nature and cause of the accusation against them; it fails to inform enforcement agencies of a standard by which they can reasonably ascertain if there has been a breach of the law, and delegates to judges and juries the right to determine what activities are or are not proscribed in violation of sections one and ten of the bill of rights of the constitution of Kansas and the due process clause of the fourteenth amendment to the constitution of the United States.
In considering the contentions of the parties, we are mindful of the rule that the constitutionality of a statute is presumed and that all doubts must be resolved in favor of its validity, and before it may be stricken down it must clearly appear it violates the defendant’s rights secured by the fundamental law. (State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537; Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 322 P. 2d 731.) Moreover, this court may not substitute its judgment for that of the legislature as to whether unrestricted Sunday sales are good or bad for the social, moral and economic life of the state, nor do we enter into the debate on that question and decide in the light of present-day conditions for or against the wisdom of that policy. Whether social, moral and economic conditions have been bettered by an enactment of the law is not a judicial question. Long ago this court declared that the purpose of the "Sunday Closing Law” was to secure an opportunity for rest one day a week- for the good of the individual and the state (Topeka v. Crawford, 78 Kan. 583, 96 Pac. 862; Ewing v. Halsey, 127 Kan. 86, 272 Pac. 187); that it is within the constitutional power of the legislature to require cessation of labor one day in seven and to designate the day of rest (State v. Blair, 130 Kan. 863, 288 Pac. 729); that it is the public policy of this state that Sunday is not a day for the transaction of business (Dobson v. Wilson & Co., Inc., 152 Kan. 820, 170 P. 2d 676), and that the Sunday closing laws are within the police power of the state (State v. Haining, 131 Kan. 853, 293 Pac. 952). Nor are we required to decide whether a Sunday closing law violates the first amendment to the constitution of the United States as made applicable to the states by the fourteenth amendment, as being a law with respect to the establishment of religion, or prohibiting the free exercise thereof, since that question has been answered in the negative by the supreme court of the United States in the recent cases of McGowan v. Maryland, 366 U. S. 420, 6 L. Ed 2d 393, 81 S. Ct. 1101; Braunfeld v. Brown, 366 U. S. 599, 6 L. Ed. 2d 563, 81 S. Ct. 1144, and Gallagher v. Crown Kosher Market, 366 U. S. 617, 6 L. Ed. 2d 536, 81 S. Ct. 1122. Hence, our decision is limited solely to whether Sections 21-955 and 21-956 are in conflict with either the constitution of Kansas or the fourteenth amendment to the constitution of the United States on the grounds urged by the defendant.
Before reaching the merits of the appeal, two points raised require attention. It is urged that the decision of the supreme court of Missouri in the recent case of State v. Katz Drug Co., 352 S. W. 2d 678, sustaining the constitutionality of its statute which Kansas originally adopted in 1855, is controlling, and compels a reversal. It is urged that the rule of construction that a statute adopted from another state will be presumed to have been adopted with the construction placed on it by the courts of that state, is applicable. In that case the supreme court of Missouri concluded that the statute was not void for vagueness as failing to give notice to the defendant of the nature and cause of the accusation against it and that the statute afforded due process of law as required by the fourteenth amendment.
This court has recognized and applied the rule that a statute adopted from another state carries with it the construction placed upon it by the courts of that state (Bemis v. Becker, 1 Kan. 226; Stebbins v. Guthrie, 4 Kan. 353; Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973; Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590; McHenry v. Hubbard, 156 Kan. 415, 420, 134 P. 2d 1107), but the rule is not absolute and is subject to exceptions. One exception is that the construction of a statute by the highest court of the original state after it is adopted by another has no controlling effect on the adopting state, although it may be persuasive where it is supported by logic and good reasoning. (82 C. J. S., Statutes, § 373 b, p. 867; State v. O’Donnell, 116 Kan. 182, 185, 225 Pac. 1078; McHenry v. Hubbard, supra.) But another and compelling reason exists why the rule has no application here. The argument in support of it presumes a doctrine which, if followed, would substitute the supreme court of Missouri as a tribunal to determine the grave question whether the statute contravenes the constitution of Kansas in place of the supreme court of this state. The construction of a statute, the function of a court to ascertain a statute’s scope and meaning, is not to be confused with the duty of determining its validity when measured by constitutional guarantees. (14 Am. Jur., Courts, § 86, p. 300; Williams v. State, 81 N. H. 341, 125 A. 661, 39 A. L. R. 490; Boyd v. Ritter L. Co., 119 Va. 348, 89 S. E. 273, 275, L. R. A. 1917A, 94.)
It is also urged that since the statute is over a century old and that the Kansas courts have been able to judicially apply it over that period is convincing and persuasive proof of its validity. It is true that previous decisions have been rendered in criminal cases involving the application of the statute, but, as previously noted, the state concedes it has not heretofore been challenged on the constitutional grounds presently urged. Courts are loath to hold statutes to be unconstitutional, and this court has repeatedly held that there is time enough for it to pass upon the validity of a statute when its constitutionality is raised by one who claims injury by it. No doubt if the constitutional questions here raised had been previously presented to this court or specifically pointed out, the issues would have been determined, but the fact that an unconstitutional statute has been enacted and has remained in the statute books for a long period of time in no sense imparts legality. (Wyandotte County Comm'rs v. General Securities Corp., 157 Kan. 64, 79, 138 P. 2d 479.) Age does not invest a statute with constitutional validity, neither does it rob it of such validity. (State v. Rogers, 142 Kan. 841, 848, 52 P. 2d 1185.)
We turn now to the contentions of the parties, and first determine the merits of the state’s contention that 21-956 is a separate and independent statute. As previously indicated, it contends that, inasmuch as 21-956 is merely defensive and an independent statute, the constitutionality of it should have no effect on 21-955. We do not agree. The fundamental rule of construction is to ascertain the intention of the lawmakers in order that the true meaning of the legislature may be determined. To accomplish that purpose all parts of the act relating to the subject should be considered together. (50 Am. Jur., Statutes, § 352, p. 350.) Ry providing that 21-955 shall not be constructed to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity, 21-956 is an exception to the former section. (State v. Blair, supra, p. 866.) The office of an exception in a statute is well understood. It is intended to exempt something from the scope of the general words of a statute or to qualify or restrain the generality of the substantive enactment to which it is attached. The relative position of an exception is unimportant since the act must be construed as a whole. It may, as here, appear in a section by itself, and when that is done it has precisely the same meaning that it would have if the exception were appropriately incorporated in the other section. (50 Am. Jur., Statutes, §431, p. 451.) We conclude that 21-956 is not merely defensive as the state contends, but constitutes an integral part of the offense defined. As thus construed, the burden rests upon the state to allege and prove that the articles sold or exposed to sale on Sunday were of the kind and character included in the statute’s prohibition and were not tiróse excepted.
Is the statute indefinite, uncertain and void for vagueness? Does it lack, as the defendant contends, ascertainable standards of guilt by establishing what persons are included or what acts are prohibited by its provisions in violation of section ten of our bill of rights and the due process clause of the fourteenth amendment? It is well recognized that in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its de scription of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty. The standards of certainty in a statute punishing for criminal offenses is higher than in those depending primarily upon civil sanction for enforcement. The offenses must be defined with appropriate definiteness. There must be ascertainable standards of guilt, but impossible standards of specificity are not required. Men of common intelligence cannot be required to guess at the meaning of the statute. The vagueness may be for uncertainty with respect to persons within the scope of the statute or in regard to applicable tests to ascertain guilt. The test is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice. (United States v. Cardiff, 344 U. S. 174, 97 L. Ed. 200, 73 S. Ct. 189; Cramp v. Board of Public Inst. of Orange County, Fla., 386 U. S. 278, 7 L. Ed. 2d 285, 292, 82 S. Ct. 275; Winters v. New York, 333 U. S. 507, 92 L. Ed. 840, 68 S. Ct. 665; Champlin Rfg. Co. v. Commission, 286 U. S. 210, 76 L. Ed. 1062, 52 S. Ct. 559, 86 A. L. R. 403.) In United States v. Cardiff, supra, Mr. Justice Douglas said:
“. . . The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid (cf. United States v. Cohen Grocery Co., 255 U. S. 81) may be as much of a trap for the innocent as the ancient laws of Caligula. . . .”
In State v. Blaser, 138 Kan. 447, 26 P. 2d 593, which quoted from and followed Connolly v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126, it was said:
“ ‘1. A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law. . . .’”(1. c. 448.)
That holding was adhered to in State v. Rogers, 142 Kan. 841, 52 P. 2d 1185; State v. Carr, 151 Kan. 36, 37, 98 P. 2d 393; State v. Davidson, 152 Kan. 460, 461, 105 P. 2d 876; State v. Ashton, 175 Kan. 164, 262 P. 2d 123, and State, ex rel., v. Fleming Co., 184 Kan. 674, 682, 339 P. 2d 12. See, also, State v. O’Connor, 186 Kan. 718, 353 P. 2d 214.
Section ten of our bill of rights provides that “In all prosecutions, the accused shall be allowed ... to demand the nature and cause of the accusation against him.” The language of the section is similar to language contained in the sixth amendment to the con stitution of the United States applicable to prosecutions under federal law. The section requires a statement of the crime charged but does not indicate how much detail or specificity is essential to a criminal pleading. (State v. Cassady, 12 Kan. 550.) Ordinarily an information charging a crime in the language of the statute is sufficient. (State v. Harris, 150 Kan. 536, 95 P. 2d 269.) However, it has been held that an information in the language of a statute which does not name the acts which are prohibited, does not inform the accused of the nature and cause of the accusation against him. (State v. Satterlee, 110 Kan. 84, 202 Pac. 636; Anno: Indefiniteness of Penal Laws, 96 L. Ed. 374; Vol. 1, Wharton s Criminal Law and Procedure, § 18, p. 33.) Whether a statute is vague and indefinite and therefore fails to inform the accused of the nature and cause of the accusation against him as required by section ten is determined by the test applicable to whether the statute violates due process of law under the fourteenth amendment. That amendment grants no greater protection to the accused in that respect than does section ten of the bill of rights of the constitution of Kansas.
The statute before us is dragnet in scope but is limited in application by exceptions. It defines the offense proscribed by exclusion rather than by inclusion, and makes Sunday sales both lawful and unlawful, that is, it prohibits the sale or exposure to sale of all goods, wares and merchandise, but authorizes property of three general classifications — drugs or medicines, provisions, or other articles of immediate necessity — to be sold or exposed to sale with impunity. The gist of the offense is the sale or exposure to sale of property not excepted. In that posture the statute is vague and indefinite unless a line can be found which separates with reasonable certainty the lawful from the unlawful, and the only criterion afforded lies in the definition of the property excepted. The line separating the two must be definite and extend to each of the three classes of property excepted; its existence to one or two is insufficient. Notwithstanding what has heretofore been said and held to the contrary, it is obvious that each class of property excepted was intended to mean articles of property not included in the other, that is, “provisions” means something other than “drugs or medicines” and the phrase “or other articles of immediate necessity” means something other than “drugs or medicines” and “provisions.” To give the statute any other meaning would require a strained construction of it, not warranted by its express language.
As to the claim of vagueness, we are not troubled by the term “drugs or medicines.” It is a generic term of comprehensive significance. Concededly, no one would have trouble defining it. It has an objective meaning which is well understood by men of common intelligence. If drugs or medicines were the only class of property excepted, a line between the lawful and the unlawful could readily be ascertained. The word “provisions” has an objective meaning, but as used in the statute, it is difficult to judicially define. Webster’s International Dictionary, Second Edition, defines it as “Act of providing, as the necessities of life, or of making preparation, as for a journey; a store or stock of needed materials prepared beforehand; especially a stock of food; hence, any kind of edibles collected or stored; food as provision laid in large, for man and beast.” Whatever else the word may mean, this court has defined it to include any groceries, meats or vegetables purchased for human consumption and also to include food for beasts. (House v. City of Topeka, 178 Kan. 284, 286 P. 2d 180.) While criminal statutes are to be strictly construed and courts should not extend them to embrace acts or conduct not clearly included within their prohibitions (State v. Waite, 156 Kan. 143, 131 P. 2d 708), and exceptions in penal statutes are to be construed liberally in favor of persons charged with violations of the statutes (82 C. J. S., Statutes, § 382, p. 893), it would seem that the statute might be sustained against the claim of vagueness as to the items of property included in the word “provisions,” notwithstanding there may be marginal cases in which it would be difficult to determine the side of the line a particular fact situation falls. But the phrase “or other articles of immediate necessity” has no objective meaning. There is no common, generally-understood meaning to this all-embracing term. It becomes meaningful only when applied to a specific article purchased under varying circumstances, which leaves open the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can adequately guard against. It could mean a variety of things to many different people. What may be an article of immediate necessity for one person to purchase on Sunday may be completely immaterial and even unwanted by another. Thus, whether an article is of immediate necessity depends solely upon the subjective judgment of one person based upon that of another. The phrase is so general and indefinite as to embrace not only acts properly and legally punishable, but those which are lawful and not punishable. In short, the statute prescribes punishment for anyone who sells or exposes to sale goods, wares or mer chandise which are not “other articles of immediate necessity” but does not define by any objective standard what constitutes a sale of property of that character, thus necessarily leaving the court and jury to determine what is or is not a sale of “other articles of immediate necessity” in any particular case. After the sales alleged in an information or complaint are established by evidence on behalf of the state, it yet remains for the court and jury to say whether those acts are the ones that are prohibited by law. (State v. Satterlee, supra.) To attempt to enforce the statute would be the equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury. (United States v. Cohen Grocery Co., 255 U. S. 81, 65 L. Ed. 516, 41 S. Ct. 298, 14 A.L.R. 1045.)
While the line of demarcation between the valid exercise of police power and constitutional guarantees is not always well defined, and courts must accord to the legislature a wide range of power to classify and delineate in declaring the public policy of the state, we cannot consent to the legislative invasion of constitutional guarantees to the extent here evidenced. Although the sale of goods on Sunday constituted an offense under the common law, and it is well settled that not every uncertainty which may exist in the operation or application of a criminal statute renders it void (State v. Ashton, supra), nonetheless, we are of the opinion the statute here considered (G. S. 1949, 21-955 and 21-956) is so vague, indefinite and uncertain that it fails to inform men of common intelligence what conduct on their part will render them liable to its penalties; that they must guess at its meaning and differ as to its application, and that it provides no reasonable definite standard of guilt which apprises them of the nature and cause of the accusation against them in violation of section ten of the bill of rights of the constitution of Kansas, and the fourteenth amendment to the constitution of the United States which provides that no state shall deprive any person of life, liberty or property without due process of law.
The state concedes that if the defendant’s challenge of the statute is sustained, it is unnecessary to determine whether the district court erred in discharging him for any other reason. In view of the conclusion just announced, the district court did not err in declaring the statute inoperative and void and discharging the defendant.
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The opinion of the court was delivered by
Fatzer: J.:
This proceeding was commenced in the probate court by H. B. Estes, executor of the estate of James G. Loper, deceased, to determine the validity of a warranty deed previously executed by the decedent conveying certain property in Topeka to his grandson, James G. Loper, Jr., and to construe paragraph two of the decedent’s subsequently executed last will and testament devising the income from that property to his wife, Elizabeth B. Loper, for her lifetime. The probate court determined that the warranty deed was validly delivered and passed fee simple title to the grandson, James G. Loper, Jr., and that paragraph two of the will was inoperative and ineffectual. After hearing evidence on appeal, the district court made findings of fact and conclusions of law and affirmed the judgment of the probate court. The widow has appealed.
The facts, for the most part, were undisputed. On October 8, 1957, James G. Loper, the decedent, was a single man and the owner of Lots 90, 92, 94 and 96 on Seward Avenue, Garden Park Addition, Topeka, which was commonly referred to as the “Corner.” On that date the decedent executed a warranty deed conveying the property in fee simple to his grandson, James G. Loper, Jr. The deed was prepared by H. B. Estes, a long-time friend and business advisor of the decedent. The decedent told Estes that his son had helped build up the property and that “he wanted the boy (James G. Loper, Jr.) to have something out of it because he figured he owed his son who was dead.” After the decedent executed the deed, he delivered it to Estes with instructions to retain it, stating, “at my death record this for that boy,” and deliver it to him. There was no evidence that the grandson was aware of the deed. Estes testified that there was no understanding with the decedent whether he could get the deed back, and stated that had the decedent requested the deed he would have given it to him. At no time did the decedent request the deed be returned to him, or be altered, destroyed or modified in any way.
On a date not disclosed by the record the decedent employed an attorney at law to prepare his last will and testament. On February 15, 1958, the decedent married Elizabeth Loper, the appellant. On June 3, 1959, he took his will to Estes’ office where it was redrawn by Estes exactly as the decedent requested, which was not consented to by his wife. The only change made was the addition of paragraph “Second” which reads:
“I bequeath and devise to my wife, Elizabeth Loper, the income from the property located at 3026 Seward Avenue, Topeka, Kansas, and described as Lots 90, 92, 94 and 96 on Seward Avenue, Garden Park Addition, Shawnee County, Kansas, for her lifetime, with the provision that she keep up taxes, insurance, and up-keep of tire property. Upon her failure to do so, the income goes to my grandson, James Guy Loper, Jr., to whom said property has been deeded.”
The appellant testified that she overheard a telephone conversation between Estes and the grantor, sometime after their marriage, in which the grantor requested he wanted to change the deed over to her and Estes had indicated it was not necessary to change the deed because the will would take care of the matter. Estes denied there was ever any conversation between the decedent and himself concerning a change in the deed, and specifically denied having a telephone conversation as testified to by the appellant.
The district court found that at no time subsequent to tihe execution of the deed on October 8,1957, until his death, did the decedent request that the deed be returned to him or be altered, destroyed or modified in any way; that the deed remained in the exclusive custody of Estes from October 8,1957, until the decedent’s death on November 6, 1959, and is still in his custody pending the determination of this action; that when the decedent duly executed his last will and testament containing paragraph two, nothing was said by the decedent to Estes regarding the deed other than the language appearing in paragraph two, and that from the date the will was executed until his death, the decedent did not request the return of the deed, or that it be destroyed, altered or modified in any way. The district court concluded as a matter of law that the deed was an effective and valid transfer of title in fee simple to James Guy Loper, Jr., and that the decedent effectively divested himself of title to the real estate by depositing the deed with Estes to receive and hold the same for delivery to the grantee after the decedent’s death with the intention to place the deed beyond the control and custody of the decedent, thereby giving it effect as a present conveyance. It further concluded that the second paragraph of the decedent’s last will and testament was inoperative and ineffectual as the decedent effectively divested himself of title to the real estate prior to the execution of his last will and testament.
The parties concede that the only question involved is whether there was substantial and competent evidence before the district court to support its conclusion that the decedent effectively divested himself of title by the deed in question.
In support of appellant’s contention that there was no substantial evidence before the district court to support the finding and judgment, she argues that the will which was made subsequent to the deed contained a provision in direct contradiction of any intention of the decedent to divest himself of title when the deed was executed, and asserts that while the decedent had no understanding with Estes concerning the return of the deed, Estes testified that he would have given the deed back had the decedent requested it. She also relies upon the telephone conversation she overheard between the decedent and Estes when the decedent requested the deed be changed and he was told that the provisions of the will would take care of the problem.
It has long been the rule in Kansas that before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor. What constitutes sufficient delivery is largely a matter of intention, which is a question of fact, unless the evidence is uncontroverted, the essential question being one of intent on the part of the grantor, and if the grantor, by words or acts, manifests an intention to divest himself of title and vest it in another, it is sufficient to constitute a valid delivery. (Reed v. Keatley, 187 Kan. 273, 276, 277, 356 P. 2d 1004, and cases cited.) The rule is likewise settled that the grantor may effectively divest himself of title if he deposits the deed with a third person to receive and hold the same for delivery to the grantee after the death of the grantor, with a declared or manifest intention to place it beyond the custody and control of the grantor, and thereby to give it effect as a present conveyance. (Young v. McWilliams, 75 Kan. 243, 89 P. 12; Hush v. Reeder, 150 Kan. 567, 95 P. 2d 313.)
The important inquiry here, therefore, is whether the decedent gave the deed to Estes, the custodian, intending thereby to part with the title to the property. • If the grantor retained control of the deed, the situation was substantially the same as though he had held it in his own possession. The evidence was undisputed that the grantor wanted “the boy,” his grandson, to have the property because his son who was deceased had helped him accumulate it and build it into a business. After the deed was executed he delivered it to Estes with instructions to retain it and record and deliver it to his grandson at his death. While the appellant testified to a purported telephone conversation between the decedent and Estes following their marriage, the district court’s finding of fact on that point is conclusive that the decedent did not request the return of the deed or that it be destroyed, altered, or modified in any way.
We are of the opinion that what was said in In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112, is controlling. There, as here, the grantor had a friend and business advisor in the real estate and insurance business. There was evidence that the grantor went to the office of the real estate man and executed the deed in question and delivered it to the custodian, stating, “You put this in your safe and keep it there until I am gone and give it to the Bethel Lutheran Church.” There, as here, the grantor transacted other business with the custodian following the execution of the deed but never requested that the deed be returned. In holding that a valid delivery was effected which vested title in the church, the court said:
“Tested by the foregoing general rules, we think there can be no doubt but that the evidence in this case leads to the inescapable conclusion that a valid delivery of the deed was made by Hulteen during his lifetime. All of the facts and circumstances clearly show the intention on his part to surrender possession and control of the deed to Eldund for delivery to the Church after his death. Despite the testimony of Miss Wiggins to the effect there was a ‘general understanding’ in the office (and which was a mere conclusion on her part) that Hulteen could have had the deed back had he so desired, the lower court was fully justified in finding that at no time after depositing the deed with Eklund did he ever attempt to exercise any control or authority over it, and that at the time it was his intention to surrender possession of it to Eklund. And neither was Hulteen’s control of the property and his collection of rents and profits therefrom, subsequent to the execution of the deed, inconsistent with the passing of title at the time he delivered the deed to Eklund. As to that phase of the matter the test is not whether the grantor has retained possession or control of the property, but rather, whether he has retained possession or control of the deed. We have no difficulty whatever in agreeing with the lower court that a valid delivery was effected and that such delivery resulted in vesting title in the Church at the time the deed was deposited with Eklund.” (1. c. 519.)
See, also, Hicklin v. DeVore, 179 Kan. 345, 295 P. 2d 668.
While the will was made subsequent to the deed, we do not think its provisions are in contradiction to any intention of the decedent to divest himself of title. In fact, that part of the language of paragraph two of the will — to whom said property has been deeded— establishes and confirms the intent of the decedent that when he deposited the deed with Estes he intended at that time to divest himself of title to the property and vest it in his grandson subject to the use and enjoyment of the property during his lifetime. The most that can be said concerning the language of paragraph two is merely that it was the result of incompetent advice given the decedent by a layman and that following the advice, the decedent attempted to bequeath rents and profits from the land, and not the land itself. Moreover, and as a result of that advice, the decedent was not aware that he could not bequeath rents and profits from the property since it had previously been conveyed to his grandson.
Considering all of the evidence concerning the delivery of the deed to Estes, the instructions at the time of delivery, and the subsequent acts of the decedent, the district court did not err in holding that the deed was an effective present conveyance of the property and vested title in James Guy Loper, Jr.
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The opinion of the court was delivered by
Wertz, J.:
This was an action filed by plaintiff (appellee) Robert B. Williams against Eldon Hendrickson, defendant (appellant), to recover for personal injuries and property damage sustained by reason of the alleged negligence of the defendant.
Plaintiff alleged that while he was driving his automobile in a westerly direction on U. S. Highway 36 defendant, operating his automobile in the same direction, negligently struck plaintiff’s car in the rear, which resulted in injury to plaintiff and property damage to his vehicle.
Defendant answered that he saw the plaintiff drive his car onto highway 36 ahead of him; that plaintiff did not speed up sufficiently to match defendant’s speed and defendant was barred from passing by a truck approaching in the passing lane and by a no-passing zone on the highway; that defendant applied his brakes to avoid striking the rear of plaintiff’s automobile, but without effect; that defendant acted in an emergency not caused by his negligence; and that plaintiff was guilty of contributory negligence.
Plaintiff replied by way of a general denial.
On the issues thus joined the case proceeded to trial to a jury, which returned a general verdict in favor of the plaintiff and at the same time returned its answers to special questions submitted to it finding defendant guilty of negligence in operating his automobile; that plaintiff was free from contributory negligence; that there was no sudden failure of the brakes of the vehicle driven by defendant; that the accident aggravated existing injuries to plaintiff; and that plaintiff was entitled to damages in an amount specified for personal injuries and property damage.
From an order of the trial court overruling defendant’s post-trial motions and entering judgment in plaintiff’s favor, defendant appeals.
A brief résumé of the facts follows. At approximately 8:00 p. m. on March 16 plaintiff drove his automobile south to U. S. Highway 36. After stopping at the stop sign, and seeing no oncoming traffic, he turned right onto the highway, and after proceeding in a westerly direction at a speed of twenty-five to thirty miles an hour for a distance of about two blocks his vehicle was struck in the rear by an automobile proceeding in the same direction being driven by defendant. The force of the collision caused the front seat of plaintiff’s car to fall over backwards and forced the automobile into a culvert on the right side of the road. By reason of the collision plaintiff suffered personal injury and damage to his car.
The undisputed evidence disclosed that the defendant had previously consumed four bottles of beer. Defendant testified he was driving his automobile at a speed of sixty miles an hour and his headlights were in operation; that he observed plaintiff’s car at the stop sign at the entrance to U. S. Highway 36 and observed plaintiff drive onto the highway; that he expected plaintiff’s automobile to accelerate to match his own speed and when this did not occur he was too close to plaintiff’s car to avoid a collision. Defendant further testified that when he did attempt to apply his brakes they were ineffective and that he was unable to pass plaintiff on the left by reason of an oncoming car. Plaintiff testified that he did not recall seeing any vehicle coming toward him after he turned west.
After the collision the parties were taken to the hospital where defendant gave his written consent to the sheriff to have his blood tested for alcoholic content. The sheriff called Dr. Bauer who withdrew the blood that was later tested by a chemist and found to have an alcoholic content of 0.168% by weight. The doctor testified that a blood alcohol above 0.16% indicates that it is well within the inebriated level. The doctor further testified that he observed the odor of alcohol on defendant’s breath, noted that he was unsteady, his speech was slurred, and it was the doctor’s opinion that defendant was under the influence of alcohol. He stated defendant was not his patient.
Two mechanics testified that they tested the brakes of defendant’s car the following day and that there was a half pedal of solid brake, which, in their opinion, showed that the brakes were good.
In view of the questions raised no useful purpose could be gained in further relating the evidence. Suffice it to say that plaintiff’s petition stated a cause of action and that the court did not err in overruling the demurrer lodged thereto, that the evidence was sufficient to warrant the trial court’s order overruling defendant’s motion for a directed verdict at the close of all of the evidence, and from our review of the entire record the evidence was sufficient to sustain the general verdict and the answers to the special questions submitted to the jury.
Defendant contends that the trial court erred in restricting his voir dire examination of three prospective jurors and in overruling defendant’s challenge for cause of each juror. The voir dire examination of a juror is in the nature of a trial to the court of his qualifications to sit as juror in the case, and the judgment of the trial court on that matter, when supported by substantial competent evidence, and not contrary to our statute, will not be disturbed by this court. (Bailey v. McLeod, 143 Kan. 638, 56 P. 2d 460; Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288; Critchfield v. Ernzen, 181 Kan. 284, 290, 310 P. 2d 930.) It is noted that the challenge was not made by defendant until after all of the jurors had been interrogated and one had been passed by defendant. An examination of the record does not reveal any grounds for challenge for cause of any of the three jurors. Each of them stated they would be able to render a fair and impartial verdict if they were chosen to sit. Moreover, the three jurors challenged for cause did not sit as jurors in the trial of the case, defendant having excused them by a perempotory challenge; hence, the error, if any, of the court’s ruling on the challenge for cause becomes of but little importance, since no complaint is made of the qualifications of any juror who participated in the trial. (Bailey v. McLeod, supra, p. 640; Critchfield v. Ernzen, supra.) The trial court did not abuse its discretion or commit reversible error in refusing to disqualify the jurors in question nor in its conduct of the voir dire examination.
Defendant next contends that the result of the blood test was inadmissible in evidence for the reason that it was given under the provisions of G. S. 1961 Supp., 8-1001, and its admissibility is limited to criminal actions. The language of the statute imposes no limitations in the use of the blood alcohol test to criminal actions. We are of the opinion such evidence, if properly obtained and accurately identified, may be admitted in a civil action where pertinent to the issues involved in the case.
It is also asserted that Dr. Bauer was incompetent to testify inasmuch as he had taken the blood from the defendant and there was thereby created a doctor-and-patient relationship, and that any information pertaining to the test was privileged. Defendant gave to the sheriff his written consent to submit to a chemical test of his blood for the purpose of determining the alcoholic content thereof. The sheriff then called Dr. Bauer who withdrew the blood and turned it over to the chemist for analysis. Dr. Bauer was not the defendant’s physician and no doctor-and-patient relationship existed; therefore, the doctor’s testimony was not privileged. Moreover, this evidence was merely cumulative. The doctor had testified that he observed the odor of alcohol on defendant’s breath and noted that his speech was slurred, and it was the doctor’s opinion that the defendant was under the influence of alcohol. The court did not err in the admission of the report of the blood alcohol test or in admitting the testimony of Dr. Bauer.
When defendant’s counsel cross-examined plaintiff he attempted to use a deposition of the plaintiff taken in a discovery proceeding in an action in the United States district court, in which action plaintiff was not a party, for the purpose of impeachment. It is evident from the record that defendant’s intention was to attempt to impeach plaintiff by showing prior inconsistent statements made at the time the deposition was taken. The trial court sustained an objection to defendant’s counsel reading from the deposition but permitted him to examine plaintiff as to whether or not plaintiff had made certain statements and if they were true. It would appear to be improper to allow defendant to accomplish indirectly what the law does not allow him to do directly. It would be improper to allow defendant to use the deposition taken in another action in which there was no identity of issues or of parties with the instant case. A deposition taken at a time when the witness is not a party to the action cannot be used against him in a subsequent action wherein he is a party. (McFadden v. McFadden, 179 Kan. 455, 461, 296 P. 2d 1098.) Defendant was not prejudiced by the trial court’s ruling preventing his use of the deposition because in further questioning of plaintiff concerning whether or not he had made certain statements on an earlier date defendant was unable to show any statement inconsistent with plaintiff’s testimony in the instant case. It is a well-established rule in this jurisdiction that prior statements must be inconsistent with the witness’ testimony for purposes of impeachment. (Hancock v. Bevins, 135 Kan. 195, 9 P. 2d 634.) It should be noted that the trial court did not prevent defendant from inquiring into the nature of the statements plaintiff made at the time the prior deposition was taken. Defendant failed to show any prior inconsistent statements made by the plaintiff at the time the deposi tion was taken in the former case and failed to lay any foundation upon which to impeach the plaintiff, and he was not, therefore, prejudiced by the court’s ruling.
At the close of the trial defendant’s counsel requested the court to submit to the jury certain special questions prepared by him. This request was partially denied and in lieu thereof the court submitted six of its own. Defendant contends that under G. S. 1949, 60-2918, he has the right to request and have submitted at least ten special questions, and that it was error for the court to refuse his request. We recognize the force of the mentioned statute; however, it is only applicable where the requested questions are based on material controverted facts and whether or not they are of the type that there is evidence from which the jury can answer them. It is a well-recognized rule in this state that the trial court has a wide discretion respecting special questions to be submitted to the jury, and when it appears the questions are neither pertinent to the issues nor supported by the evidence, nor intend to bring out some ultimate fact in the case, it is proper to refuse to submit them. It is the duty of the trial court to supervise and shape special interrogatories that are submitted to the jury, and the court may reject questions that are improper or immaterial and limit the questions to ultimate facts on controverted issues. (Kurdziel v. Van Es, 180 Kan. 627, 632, 633, 306 P. 2d 159.) We have carefully considered defendant’s requested questions, and those submitted by the court, and are of the opinion that the questions submitted sufficiently cover all of defendant’s requests which are material to the controversies involved.
Defendant next contends it was error for the court to refuse to give certain of his requested instructions. We shall not attempt to list these requested instructions and those given by the court. Suffice it to say they have been examined, and we believe the instructions given adequately cover the matter contained in the requested instructions so far as material to the issues involved.
It is also contended that the court erred in its instructions given to the jury. We are of the opinion that the instruction given adequately stated the law as applicable to the facts in the instant case.
In view of what has been said, the judgment of the trial court reflects no prejudicial error. It is therefore affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an insolvency proceeding by a creditor of the defendant corporation from an order of the district court which in substance failed to grant preference to his claim for wages and failed to honor an assignment of wages by another creditor to him.
The action was originally brought in the district court of Sedgwick County, Kansas, by the plaintiffs who were the duly elected officers of the Kansas Centennial Global Exposition, Inc., a Kansas corporation (defendant-appellee), asking the court to appoint a receiver for such corporation, which was alleged to be insolvent, and to wind up its affairs. In due course a receiver was appointed and duly qualified. Thereafter Myron E. Russ (appellant) filed his claim against the receiver for sums due under a written contract of employment, which reads:
“Employment Agreement.
“This Agreement, Made and entered into this 20th day of May, 1960, by and between Kansas Centennial Global Exposition, Inc., hereinafter referred to as ‘Corporation,’ and Myron E. Russ and Charles R. Moran, hereinafter referred to as ‘Russ and Moran’.
“WITNESSETH:
“For good and valuable consideration in connection with the organization and, promotion of the corporation and its affairs and in accordance with the resolution this day adopted by the Board of Trustees of the corporation, it is hereby mutually agreed between the parties hereto as follows:
“1. The corporation has appointed Myron E. Russ as Executive Director and General Manager of this corporation and its business and activities, and Charles R. Moran as Assistant General Manager, and has agreed to hire and does hereby hire the services of said Myron E. Russ and Charles R. Moran in such capacities to actively direct and manage the affairs, activities and policies of the corporation, subject only to direction by the Board of Trustees, for a term and period of twenty (20) months from May 1, 1960, to December 31, 1961.
“2. That Russ and Moran have heretofore given and rendered valuable services in connection with the organization and promotion of the corporation and its affairs, and they have agreed and do hereby agree to accept such positions and duties as Executive Director and General Manager, and as Assistant General Manager, respectively, and to hereafter give and provide the use of their time and services in the performance of their duties as such officers to the best of their judgment and abilities.
“3. That the compensation to be paid by the corporation to Myron E. Russ and Charles R. Moran for their services during such period shall be and are hereby fixed in the total amounts as follows:
“(a) Base pay in the amount of $2,500.00 per month, and
“(b) Incentive bonus in an amount equal to 6% of the net income of the corporation based on commercial principles of accounting, but after allowance for depreciation of approximately 25% of capitalized cost of leasehold and real estate improvements. That Myron E. Russ and Charles R. Moran may divide and allocate this total compensation as between themselves in such manner and proportions as they mutually agree and determine.
“4. That it is understood and agreed that any and all obligations incurred or paid by Russ and Moran for and in connection with the organization and promotion of the corporation and its affairs are hereby assumed by the corporation as part of its accounts and obligations.
“In Witness Whereof, the parties have hereunto set their hands as of the day and year first above written.
Kansas Centennial Global Exposition, Inc.
By: /s/ Don H. Alldritt, President.
/s/ Myron E. Russ,
/s/ Charles R. Moran.
Attest:
/s/ Gerald Byrd.
(seal)” (Emphasis added.)
The appellant claimed sums due him under the foregoing contract were $14,000. He testified that the compensation for services under the contract was mutually agreed between himself and Moran to be divided two-thirds to himself and one-third to Moran. He claimed the sum due Moran, the assistant general manager, by virtue of an assignment from Moran of all his rights under the contract. This assignment reads:
“Assignment.
“In consideration of One Dollar ($1.00), and other good and valuable considerations, the receipt of which is hereby acknowledged, I, Charles R. Moran, do hereby assign, transfer and set over unto Myron E. Russ, all of my right, title and interest in and to one contract dated May 20, 1960, by and between the Kansas Centennial Global Exposition, Inc. and Myron E. Russ and myself.
“In Witness Whereof, I have hereunto set my hand and seal at Wichita, Kansas, this Slst day of January, 1961.
/s/ Charles R. Moran.”
The trial court after hearing the matter allowed the appellant $9,333.34 as a common claim, thus refusing not only to give preference to the appellant’s claim but also refusing to recognize the assignment from Moran to the appellant.
The trial court’s refusal to give preference was based upon the proposition that the appellant was an officer of the corporation and not entitled to a preference for wages due him under the provisions of G. S. 1949,44-312, which read:
“That whenever a receiver shall be appointed of the estate of any corporation, copartnership, or individual, under the laws of this state, or whenever any corporation, copartnership or individual shall make a general assignment for the benefit of the creditors of such corporation, copartnership, or individual, the wages due to all laborers or employees other than officers of such corporation, accruing within the six months immediately preceding such appointment of a receiver or such assignment, shall be preferred to every other debt or claim against such corporation, copartnership, or individual, and shall be paid by the receiver or assignee of such corporation, copartnership or individual from the moneys thereof which shall first come into the hands of such receiver or assignee.” (Emphasis added.)
Is the appellant’s claim for his personal share of the compensation due under the contract ($9,333.34) entitled to preference under the statutes?
The appellant contends the sums due him under the contract of employment were wages; that he was not an officer of the corporation; and refers to the minutes of the first meeting of the board of directors of the defendant corporation, dated April 26, 1960. He argues that these minutes name the persons who were elected officers and calls our attention to the fact that the appellant’s name does not appear therein. He further points to the minutes of the corporation dated May 20, 1960, which state that the corporation agreed to hire the services of said Myron E. Russ, subject only to direction by the board of trustees.
Whether the claim of an executive director and general manager for salary owed him against an insolvent corporation is entitled to preference under 44-312, supra, has never been passed upon by this court, and is a matter of first impression. Statutes of other states giving preference to claims of employees for wages against an insolvent corporation are so varied that foreign decisions are of little help.
The question posed is whether an executive director and general manager, appointed by the board of trustees, is a “laborer or employee,” or an “officer of the corporation.” This in turn calls for a construction of the word “officers” as used in 44-312, supra.
G. S. 1949,17-3105, in part provides:
“Every corporation shall have a president, secretary and treasurer. . . . The corporation may have such other officers, agents and factors as may be deemed necessary. . . .”
G. S. 1949,17-3106, provides:
“The president, secretary, treasurer, and vice-presidents, if any there be, shall be chosen by the directors. All other officers hereinbefore provided for, shall be chosen in such manner, and shall hold their offices for such terms as may be prescribed by the bylaws, or determined by the board of directors. . . .”
The by-laws of the corporation provide that “(b) The board may appoint such other officers and agents as it shall deem necessary who shall hold their office for such term and exercise such powers and perform such duties as shall be determined from time to time by the board.” (Art. V., § 1 [&].) (Emphasis added.)
The by-laws further provide that “The officers of the corporation shall hold office for one year or until their successors are chosen and qualified in their stead, or for such terms and periods as the board of trustees may agree to determine. Any officer elected or appointed by the board of trustees, may be removed at any time by the affirmative vote of the majority of the whole board of trustees, unless his term is otherwise fixed by contract or agreement. . . (Art. V., §3.) (Emphasis added.)
The resolution of the board of trustees appointing the appellant as executive director and general manager of the corporation and its business and activities, and Charles R. Moran as assistant general manager provides, among other things, “That the corporation does agree to hire the services of said Myron E. Russ and Charles R. Moran in such capacities to actively direct and manage the affairs, activities and policies of the corporation, subject only to direction by the board of trustees, for a term and period of 20 months from May 1,1960 to December 31,1961.”
Here the agreement entered into between the corporation and the appellant and Moran recites that they are to actively direct and manage the affairs, activities and policies of the corporation, and are subject only to the direction of the hoard of trustees. The contract also recites part of the consideration to be “in connection with the organization and promotion of the corporation and its affairs.”
The foregoing recital of consideration is not an empty gesture in the contract. The minutes of the board of trustees’ first meeting on the 26th day of April, 1960, after listing the trustees present and absent, recite “Myron E. Russ and Charles R. Moran, representatives for the corporation, Rex M. Jennings, accountant and Morris H. Cundiff, attorney, were also present at the meeting.” At the same meeting a resolution was passed authorizing and directing the appellant “to form up and secure, from the owner of such West Site, an option to the corporation to take a lease and agreement thereon, including an option for the extension of such lease and the right to purchase the same.”
It further directed him to negotiate with the owners of said tract as to the terms and provisions of such lease and agreement. The second meeting of the board of trustees on the 20th day of May, 1960, indicated the appellant and Moran were present as representatives of the corporation.
In paragraph “2” of the contract Russ and Moran were referred to as officers of the corporation in connection with their positions and duties as executive director and general manager, and as assistant general manager, respectively.
Upon the foregoing facts we have no hesitance in declaring that the appellant herein was an officer of the corporation in question, and that Moran, as his assistant, was also an officer. We do not think the legislature of the state of Kansas intended to include an executive director and general manager, receiving two-thirds of a $2,500 per month salary ($1,666.66) plus an interest in the profits of the corporation, as a ‘laborer or employee” of an insolvent corporation, and giving him preference for the salary owed. The appellant herein under the terms of the resolution of the defendant corporation, the contract, and the evidence of the appellant, was only responsible to the board of trustees, and he was not responsible to any officer or other superior of the defendant corporation.
The word “officer” as used in a section of the Securities Exchange Act providing that any profit realized by a beneficial owner, director, or “officer” of a corporation, within six months because of such relationship to the corporation shall inure to the corporation, was held in Colby v. Klune [U. S. C. A. 1949], 178 F. 2d 872, to include a corporate employee performing important executive duties of such character that he would be likely, in discharging such duties, to obtain confidential information about the company’s affairs that would aid him if he engaged in personal market transactions. The court said it was immaterial how his functions were labeled or defined in the by-laws, or that he did or did not act under the supervision of some other corporate representative.
The Florida Supreme Court distinguished corporate officers and employees in Flight Equipment & Engineering Corp. v. Shelton [1958], 103 S. 2d 615, as follows:
“There are various distinctions between corporate officers and employees. For example, an officer holds an office and performs duties created and pre scribed by charter or by-law, and the officer is elected either by action of the stockholders or the board of directors at a salary or for compensation fixed by them or by the charter or by-laws.
“On the other hand an employee usually occupies no office; he is generally employed not by action of the stockholders or directors but by the managing officer of the corporation, who also determines the compensation to be paid.
“The officers of a corporation occupy a quasifiduciary relation to the stockholders and the corporation while employees do not. Employees are usually subordinate to and act under control of corporate officers, while the officers exercise the power of management under the policies or directives of the board of directors.” (p. 623.)
Under a New York statute giving preference to wages of “employees, operatives and laborers” it was said a general manager of a domestic corporation was not an employee entitled to preference — that the term “employee” did not include every person in the employ of a domestic corporation. It was said the general manager, with reference to the conduct of the business of the corporation, stood as the representative of the company, and would not be termed, in ordinary parlance, an “employee, operative or laborer.” (In Re Directors American Lace & Fancy Paper Wks. [1898], 51 N. Y. Supp. 818.)
A Missouri statute granting preference to payment of wages of employees of an insolvent corporation was said to protect only such employees as perform assigned tasks requiring no oversight and who are not concerned with the general policy and management of the business. (Pullis Bros. Iron Co. v. Boemler [1901], 91 Mo. App. 85.)
In 19 C. J. S., Corporations, § 756, p. 99, the powers of a general manager and managing director were described as follows:
“The general manager of a corporation has general charge, direction, and control of the affairs of the company for the carrying on of which it was incorporated. . . . While it has been said that he may be considered as virtually the corporation itself and his implied powers are coextensive with the general scope of the business of the corporation, yet the ultimate control rests with the board of directors.”
The foregoing authorities tend to confirm our construction of 44-312, supra, as applied to the facts in this case. Cases cited by the appellant (Commonwealth v. Christian, 9 Phila. 556; and Badger Oil & Gas Co. v. Preston, 49 Okla. 270, 152 Pac. 383) have been examined and considered, but are not applicable to the facts here presented.
Was Moran’s assignment of all his interest in the contract to the appellant valid?
Insofar as the record discloses it is conceded the appellant and Charles R. Moran were entitled to the total sum of $14,000 as compensation due under the terms of the employment agreement when the receiver was appointed, and that these sums due had accrued within six months prior to the appointment of the receiver.
By reason of the oral agreement of the appellant with Moran to take two-thirds of each month’s salary, the appellee argues he should only receive two-thirds of the $14,000 claimed, or $9,333.34.
When the appellant filed his claim as an intervener in this action he set up three causes of action in a pleading denominated “Amended Intervener’s Petition.” His first cause of action was a claim in the amount of $14,000 for wages due under his contract with the defendant corporation. The second cause of action sought damages in the sum of $28,583.33 for breach of the employment agreement. The third cause of action sought recovery of obligations and expenses paid from his own personal funds on behalf of the defendant corporation in the amount of $3,498.11. Insofar as the record here discloses the second and third causes of action have been withdrawn.
The appellee argues the appellant did not consider or treat the assignment from Moran as one for salary owing the assignor, because he sought to recover in his second cause of action damages for breach of contract which would be due' the assignor. This action on the part of the appellant is said to indicate his intentions and interpretations of the assignment. The appellee argues the contract in question was of a personal nature; that it was for services to be performed by both the appellant and Moran. In such situation it is said the assignment was invalid because neither the defendant corporation nor its receiver consented to the assignment, citing Delaware County v. Diebold Safe Co., 133 U. S. 473, 33 L. Ed. 674, 10 S. Ct. 399.
We fail to see merit in the appellee’s argument.
The assignment heretofore quoted was duly admitted into evidence and by its terms Moran transferred to the appellant all of his right, title and interest in and to the employment contract. This included, among other things, his right to one-third of the unpaid monthly salary. A fact to be noted is that the assignment is dated after the appointment and qualification of the receiver in this action, and it is thus evident the parties were fully aware of the hopelessly insolvent situation of the corporation when the assignment was made. It is clear the parties knew that no further personal services could be performed by the appellant and Moran for the corporation under the contract after the receiver was appointed and qualified to take charge of the assets of the corporation.
While rights under ordinary contracts are assignable, there are well-recognized exceptions. It is generally held that rights arising out of contracts involving personal services, special confidence and the like, are not assignable by one party without the consent of the other party thereto. (Campbell v. Sumner County, 64 Kan. 376, 67 Pac. 866; Smith & English, Partners, v. Board of Education, 115 Kan. 155, 222 Pac. 101; Standard Chautauqua System v. Gift, 120 Kan. 101, 242 Pac. 145; and Imperial Refining Co. v. Kanotex Refining Co. [8th C. C. A. 1928], 29 F. 2d 193.)
It has been held an assignee to whom an account for wages has been assigned may maintain an action on the account, and it is immaterial whether the assignee has paid for the account or not. (Currant v. Lenger, 107 Kan. 107, 190 Pac. 432; and see Krapp v. Eldridge, 33 Kan. 106, 5 Pac. 372.)
In this state all choses in action, except torts, are assignable. (G. S. 1949, 60-401; McCrum v. Corby, 11 Kan. 464, 470; National Bond & Investment Co. v. Midwest Finance Co., 156 Kan. 531, 535, 134 P. 2d 639; and see Noble v. Hunter, 2 Kan. App. 538, 43 Pac. 994; and Railway Co. v. Phelps, 10 Kan. App. 1, 61 Pac. 672.) Accordingly it has been held that a cause of action for damages for breach of contract is assignable. In Life Insurance Co. v. Kelso, 16 Kan. 481, it was said;
“As the cause of action in this case arose out of contract, and is for damages to be paid in money only, we suppose there can be no question as to its assign-ability.” (p. 485.)
While it must be recognized that the assignee of a contract, or rights thereunder, takes no greater interest by the assignment than that of his assignor (LePorin v. Bank, 113 Kan. 76, 213 Pac. 650), the assignment in the instant case gave the assignee (appellant) all the rights that the assignor possessed at the time the assignment became effective. (Strong v. Moore, 75 Kan. 437, 89 Pac. 895.) The written assignment established the intention of Moran to pass all of his rights under the contract to the appellant (Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287), and the performance of any further personal services under the contract being impossible, no consent of the corporation or the receiver was necessary to make the assignment valid.
It is apparent from all the facts and circumstances in this case that the only possible rights Moran had in the contract in question at the time of the assignment were (1) a cause of action for damages for breach of contract in which only money could be recovered; and (2) a claim for compensation due and owing him for services when the receiver was appointed. Roth could be assigned and were assigned by Moran to the appellant by the written assignment heretofore quoted.
For the reasons heretofore stated the district court should have allowed the appellant’s claim in the full amount of $14,000 as a common claim.
Whether the preference given to the payment of wages of laborers and employees of an insolvent corporation from corporate assets in the hands of a receiver under 44-312, supra, is a privilege strictly personal to a wage claimant, and one which he alone can exercise, or passes to the assignee with the assignment of such wages, is a question we need not determine on this appeal in view of our decision that Moran, for the reasons heretofore stated, was also an officer of the corporation. (See Falconio v. Larsen [1897], 31 Or. 137, 48 Pac. 703, 37 L. R. A. 255; 4 Am. Jur., Assignments, § 116, p. 321; and 19 C. J. S., Corporations, §1552, pp. 1293 to 1295.)
The judgment of the lower court is modified to allow the appellant’s claim in the amount of $14,000 as a common claim. The judgment as modified is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action filed by plaintiff (appellee) Roberta Ann Mathena, a minor three and one-half years of age, through her father against Francis Burchett, defendant (appellant), seeking to recover damages for personal injuries alleged to have been suffered because of the negligence of the defendant in operating his automobile at the time and place in question under the conditions then existing.
The case was tried to a jury which returned its general verdict in favor of plaintiff. At the same time, the jury returned its answers to special questions submitted to it finding that the defendant failed to act as an ordinary prudent person under the same and similar circumstances and that the proximate cause of plaintiff’s injuries was tire negligence of defendant in failing to have a proper lookout and to see objects in the line of his vision. From an order of the trial court overruling defendant’s post-trial motions and entering judgment in plaintiff’s favor defendant appeals. -
A very brief résumé of the facts is: The plaintiff was a child three and one-half years of age. At 4:30 p. m. on June 17, 1959, the defendant was traveling south on a rough, gravel street, thirty feet in width, in the residential section of the city of Hoyt at a speed of ten to fifteen miles an hour. The plaintiff’s home was located on the east side of this street and faced the west. A truck, facing north, was parked in front of plaintiff’s house, the rear end of the truck being located opposite the sidewalk leading up to plaintiff’s house. Across the street from plaintiff’s home, and some fifty to sixty feet to the south, was a vacant lot where a number of small children were playing. Persons standing 200 to 300 feet north of plaintiff’s position observed her start across the street at a point about 40 feet south of the parked truck. As plaintiff reached approximately the center of the street she was struck by the front end of defendant’s automobile. A witness, Bolz, standing 200 to 300 feet north of defendant’s automobile, testified he saw plaintiff start across the street and that he thought to himself, “Well, this little girl is going to have to run to get across. . . .” The defendant testified that as he drove down the street he observed the children playing on the west side of the street but that he did not see plaintiff coming from the east side until he heard a thump and saw the plaintiff spinning around in the center of the road. He then stopped within a car’s length. As the result of being struck by defendant’s automobile plaintiff received serious injuries to her face and head, which required surgery, and disfiguring scars were left on her forehead and around her eyes, which will require further plastic surgery.
Defendant first contends, in substance, that plaintiff’s evidence was insufficient to establish a prima facie case of negligence against him, and, therefore, the trial court erred in overruling his motion for a directed verdict. Defendant concedes inasmuch as plaintiff is a minor of tender years the only question is whether or not the defendant was guilty of any act of negligence. As related, there is evidence to support the jury’s answers to the special questions and the general verdict. Defendant admits he saw the children playing on the west side of the street but did not see the plaintiff coming from the east, although two witnesses standing between 200 and 300 feet to the rear of the defendant’s car saw the little girl enter the street some 40 feet or more to the rear of the parked truck. Certainly if these witnesses saw the plaintiff in the street, the defendant, by the exercise of reasonable care and by keeping a proper lookout, could have seen the plaintiff in time to have stopped his car and avoid the injury. We find no merit in defendant’s contention.
Defendant next contends that the court erred in giving certain instructions by placing undue emphasis on the duty of the operator of a vehicle to keep a careful lookout. We have examined the instructions complained of and find that they properly state the law. Moreover, inasmuch as all of the instructions are not contained in the record we cannot say that any undue emphasis was put upon defendant’s duty under the law.
It appears that defendant’s principal contention of error was in the trial court’s permitting plaintiff’s attorney on the voir dire examination of the jury to ask the two following questions:
“Q. . . . have any of you gentlemen ever attended law school or adjusted losses for either an adjusting company or insurance company or engaged in that work, or been engaged in the sale of insurance as an insurance agent? Have any of you gentlemen ever been engaged in that type of work?
“Q. Have any of you gentlemen ever been law enforcement officials at any time and as such compelled to investigate accidents? I gather by your silence that none of you have . . .”
Defendant moved the court to declare a mistrial because of the misconduct of plaintiff’s counsel in deliberately attempting to inject insurance into the case.
In the examination of the jury on voir dire plaintiff’s counsel, after individually questioning the jurors on other matters, asked the full panel the two aforementioned general questions. At no other place during the trial was insurance mentioned. The defendant relies heavily on the asking of the two mentioned questions as reversible error.
As far back in history as the turn' of the century this court has been troubled with the alleged prejudicial effect of the term “insurance” and the concurrent inference that the defendant is insured. In 1903 in the case of Swift v. Platte, 68 Kan. 1, 6, 72 Pac. 271, this court said considerable latitude should be allowed counsel in the examination of jurors, so that all who have bias or prejudice, or are otherwise disqualified, may be eliminated. Questions are not to be barred merely because the answers elicited would be incompetent under the issues in the case; nor are parties to be hampered in a thorough examination, made in good faith, to keep off the panel partial, prejudiced and unfit men. We further said the inquiry may be extended to the social and business relations of the proposed jurors with the parties to the action or with anyone connected with the litigation. It should, however, be conducted in good faith for the purpose of sifting the panel and excluding those who are disqualified or objectionable by challenges peremptory or for cause. In the aforementioned case the court reversed the trial court’s allowance of the question there asked the jurors on their voir dire by saying,
“The inquiries were not so much directed at the possible connection of jurors with insurance companies or with those representing them, but mainly pressed upon the jurors questioned, as well as those listening, the fact that packing companies were insured, and that these companies were hiring the lawyers and would pay the judgment if any should be given.”
However, on the rehearing, Swift v. Platte, 68 Kan. 10, 74 Pac. 635, the court corrected itself and found:
“Unless, therefore, the inquiry was not conducted in good faith, or was so unnecessarily extended as to constitute an abuse of discretion by the court, we cannot say there was error. If we had the knowledge of the proposed jurors and the local situation such as the trial court had, we might readily say that good reasons existed for the character and extent of the inquiry. The trial court decided that the extended inquiry was necessary and proper, and it must have determined that it was conducted in good faith by counsel. It was in much better position to determine the question of good faith than are we, and, having in view the large discretion vested in the trial court as to the extent of the inquiry, we cannot say that its rulings furnish a ground for reversal.”
Chief Justice Johnston, in speaking for this court on pages 7 and 8 of the first mentioned case, stated there is no more important feature of a trial than the impaneling of an impartial and unbiased jury, and courts are very liberal in allowing inquiries into the competency and qualifications of persons called as jurors. The examination serves a double purpose — first, to learn whether there is a disqualification or cause for challenge, and, second, tp enable, a party to determine whether he shall exercise the right of peremptory chal lenge given by statute. So careful is the law that a fair jury may be obtained that it not only provides for the exclusion of those shown to be partial or prejudiced, but it gives each party the added right to challenge a certain number not shown to be prejudiced or disqualified, whom the parties may desire to exclude for reasons not recognized by the law. Apart from admitted bias or prejudice, persons may be exluded from the panel because of possible prejudice on account of pecuniary interest, relationship, or business connection with the parties to the action.
In the second case referred to, at page 11, the same chief justice, in speaking for this court, said, “To enable a party to guard against the inclusion of prejudiced jurors it was proper for the court to allow a full and searching inquiry as to a possible connection of the proposed jurors with an indemnifying company or with its agents or attorneys, and whether they would be affected or prejudiced if such indemnity existed.”
Probably the most revealing aspect of this court’s feeling is found in the original opinion of the aforementioned case where it made the fine distinction between the focus of questions on voir dire that attempt to determine the relationship or business background of a juror and those that inferentially indicate the defendant is insured and will not be financially liable for a judgment against him. As recent as Thompson v. Barnette, 170 Kan. 384, 389, 227 P. 2d 120, this court said, “. . . it surely cannot be argued that counsel for either side, in any kind of a lawsuit, would select a jury without first making inquiry concerning the business or occupation of the members of the jury panel.” In Billings v. Aldridge, 133 Kan. 769, 776, 777, 3 P. 2d 639, on examining the jurors on their voir dire counsel asked each of them if he was connected, as stockholder or otherwise, with any insurance company that has for one of its purposes the insuring of public work contractors against damages which third persons may sustain, or if he held a policy in any such company, or if he had been employed as agent, or otherwise, for such a company. We held that questions of this character may be propounded to jurors on their voir dire if they are asked in good faith. Ordinarily the trial court is the judge of whether they are so asked. (Swift v. Platte, 68 Kan. 10, 74 Pac. 635; Howard v. Motor Co., 106 Kan. 775, 190 Pac. 11; Smith v. Ice and Delivery Co., 117 Kan. 485, 490, 232 Pac. 603; Peters v. Cavanah, 132 Kan. 244, 247, 248, 295 Pac. 693.) The fact that the trial court overruled objec tions to these questions indicates that it regarded them as being asked in good faith. The extent to which counsel should be allowed to go in examining jurors as to their qualifications cannot be governed by any fixed rules. The examination is conducted under the supervision and direction of the trial court, and the nature and extent of the examination and what questions may or may not be answered must necessarily be left largely to the sound discretion of the trial court, the exercise of which will not be interfered with unless clearly abused. (State v. Hoffman, 344 Mo. 94, 125 S. W. 2d 55.) It is elemental that the scope must be regulated by the purpose of such examination, that purpose being whether the prospective juror has both the statutory qualification of a juror and is free from bias or prejudice for or against either litigant. Roth parties are entitled to an impartial jury, and a fair and impartial trial is the birthright of every litigant. The examination of the jury should neither be overly liberalized nor should it be unduly restricted. For further discussion on right to interrogate jurors on voir dire see annotation 105 A. L. R. 1330; annotation 4 A. L. R. 2d 761, 765, 792, et seq.; and 1 J. B. K. 125, et seq.
In the instant case the two questions propounded to the jury as a whole did not indicate that either plaintiff or defendant carried insurance. Plaintiff’s counsel sought to ascertain only whether any of the jurors adjusted losses for either an adjustment company or an insurance company or had been engaged in that type of work, or whether they had acted as an insurance agent or had been law enforcement officers and as such had been compelled to investigate accidents. Regardless of whether defendant carried insurance plaintiff’s counsel was entitled to elicit the information to determine whether he should challenge any member of the panel. It would seem important to counsel to know if any of the prospective jurors had engaged in such activities which in counsel’s opinion would give such juror a special knowledge of the legal implications of such a case and the possibility of that knowledge carrying undue weight in the jury room.
We agree with the trial court that the aforementioned questions were proper, the inquiry was made in good faith, and no showing of prejudice is reflected in the record; therefore, the judgment of the trial court must be affirmed.
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The opinion of the court was delivered by
Robb, J.:
This action for declaratory judgment under G. S. 1949, 60-3127 was commenced by plaintiff, appellee here, as an automobile liability insurer of Leon Mulder, a sand and gravel hauler. Copy of the policy was attached to the petition as exhibit A. The petition alleged the policy covered Mulder’s two trucks, particularly the 1955 GMC % ton dump truck in question and extended to Gardiner and any other person using the truck with Mulder’s permission.
The petition further alleged that on April 28, 1960, defendant, Walter James Gardiner, while driving the truck in question was involved in an accident on U. S. highway 54 between Wichita and Augusta which directly resulted in tort actions being filed by Louise Tannahill, Dewey Tannahill, and Carolyn Sue Tannahill, who were named as defendants in this declaratory judgment action, and in a fourth and separate action Louise and Dewey Tannahill also claimed damages for the wrongful death of Loy Wade Tannahill. These four actions against Mulder and Gardiner were filed in the district court and the petitions in those cases were attached to the petition in this case as exhibits B, C, D, and E, and have been set out in this record.
Plaintiff (hereinafter called the company) disclaimed coverage to Gardiner because he did not have permission of Mulder to use the truck. Gardiner claimed full protection and coverage under the policy because he did have Mulder’s permission, which the company denied. The Tannahills claimed the company was or would become liable by reason of the actions they had filed against Gardiner, which was denied. The company contended it was entitled to judgment and declared that Gardiner was not insured under the policy issued to Mulder, that it was not required to defend or protect Gardiner and was relieved from all liability to the Tannahills.
Common pertinent allegations of the petitions of the Tannahills, in substance, were that on April 28, 1960, at about 9:20 p. m. petitioner was driving a 1955 Buick west on the north or right half of U. S. highway 54 west of Augusta at a speed of approximately fifty to fifty-five miles per hour and Gardiner was driving in an easterly direction at a reckless and dangerous speed of sixty-five miles per hour. Gardiner had consumed large quantities of intoxicating liquor. The left wheels of the truck Gardiner was driving were on the center line of the highway. The headlights were in a bright or elevated position. When 500 feet east of Gardiner, petitioner dimmed her lights, but Gardiner did not respond to her signal nor to a further effort made by her to attract his attention when she alternately switched her lights on bright and dim. As the Tannahill vehicle was passing Gardiner, he suddenly swerved and lost control of his truck causing the left rear wheel to travel across the center line of the highway and strike the left front fender of the Tannahill vehicle. This caused petitioner to lose control, the car then crossed the center line and collided with another oncoming car which had been following 250 to 300 feet behind Gardiner’s truck. Petitioner’s resulting injuries were directly and proximately caused by the negligence of Mulder because he negligently permitted Gardiner to operate his truck when Mulder had knowledge, or in the exercise of reasonable diligence could have ascertained, that Gardiner was a reckless, incompetent driver and habitually used intoxicating beverages. Thus the negligent acts of Gardiner and Mulder joined together and concurred in causing petitioner’s injuries and damages in that had it not been for their concurring and consecutive negligent acts the collision would not have occurred.
Defendant Gardiner answered the company’s petition first by a general denial and then alleged he drove the truck with Mulder’s permission at the time of the accident and that by reason thereof he was covered under the policy. In its reply the company alleged it was specifically denied that Gardiner was driving the truck with Mulder’s permission at the time of the accident and it was further specifically denied Gardiner was covered by the policy. Evidence was introduced and at the close thereof the trial court made the following finding of fact a part of the record:
“The court is going to rule that on the night in question, when this collision occurred, that the defendant Walter James Gardiner was driving this 1955 GMC truck without the permission of Mr. Mulder; therefore, this plaintiff in this case is under no obligation to defend the defendant Leon Mulder.”
In its formal journal entry of judgment dated March 17, 1961, the trial court entered judgment as follows:
“. . . plaintiff has no obligation to defend Walter James Gardiner for any claims made against him by Dewey Tannahill, Louise Tannahill, Carolyn Sue Tannahill and Dewey Tannahill and Louise Tannahill as next of kin of Loy Wade Tannahill under the provisions of G. S., 1959 Supp., 60-3203, and G. S., 1949, 60-3204, and that plaintiff is released from any liability to Walter James Gardiner under the policy of insurance issued by it to one Leon Mulder on or about March 3, 1960, arising out of the alleged accident of April 28, 1960, and that judgment be and the same is hereby entered in favor of the plaintiff and against defendant Walter James Gardiner for the relief prayed for in the plaintiff’s petition.”
This appeal by defendant Gardiner followed and the question presented by him is whether the trial court had jurisdiction of all the necessary parties so as to empower it to enter a judgment for declaratory relief under G. S. 1949, 60-3127.
As previously mentioned, the record in this appeal contains not only the pleadings filed in this declaratory judgment action with the attached insurance policy, but also the four petitions in tort actions filed by the Tannahills who were made parties defendant along with Gardiner. Thus all these documents are before this court for examination and determination just as they were before the trial court. One of the facts admitted in the pleadings is that the face of the insurance policy shows that the plaintiff company was the insurer and Mulder was the named insured. Mulder was not made a party, but we shall pass that for the moment and proceed to determine whether the pleadings appearing in this action actually seek a declaratory judgment under G. S. 1949, 60-3127 to 60-3132, inclusive. This same point was recently considered in Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350, where it was stated that while the circumstances there existing met the qualifications that two or more parties were involved and an actual controversy existed between them, the parties had failed to agree in the pleadings as to how their contentions arose, and it was held that a declaratory judgment action was not the proper proceeding by which to obtain the relief sought. The case at bar goes even further because here allegations in the petitions of the Tannahills would be litigated under the judgment rendered in this case holding that Gardiner did not have permission of Mulder to drive the truck. In other words, the company seeks to obtain a predetermination of at least one very cogent element of the Tannahill tort actions. This is not the purpose for seeking relief by a declaratory judgment action and this court will not permit such procedure.
Judgment reversed with directions to the trial court to dismiss the action. | [
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The opinion, of the court was delivered by
Jackson, J.:
The only question in this appeal is whether the district court was correct in holding that appellant’s action for personal injuries was barred by the two year statute of limitations (G. S. 1949, 60-306 Third).
A short answer to the above question would be that in our opinion the case is barred and the district court made the only order possible under the circumstances. But we shall recount the facts briefly.
The appellant, in the petition first filed in the district court on June 15, 1957, alleges that on June 17, 1955, plaintiff suffered personal injuries due to an explosion near Fifth street and Quindaro boulevard in Wyandotte county; it is alleged that the appellee Tor-son Construction Company and the Griffin Construction Company caused the explosion by their negligence and were responsible therefor, and further that appellee Fidelity and Casualty Company and other surety companies had issued bonds insuring persons injured upon a construction project then in progress. All parties including the above named appellees were made defendants by the pleading.
Through some unexplained error on June 17, 1957, the last day allowed under the two year statute of limitations for the beginning of an action, summons was issued and served upon George J. Siebers as the resident agent of each of the corporate defendants named in the petition. It is now agreed, as we understand it, that Siebers was not the resident agent of any of the named defendants and that such service was entirely invalid.
Early in July, 1957, the Fidelity and Casualty Company of New York filed a petition to remove the above case to the federal court and the case was promptly removed. Later the federal court sustained motions to quash the above described service, and an appeal was begun to the Court of Appeals. About this time, some one noticed that the defendant George J. Siebers and Company was a Kansas corporation as also was the defendant the Griffin Construction Company and it became plain that the federal court had no jurisdiction of the action upon the ground of diversity of citizenship. Attention may be directed to the opinion of Mr. Chief Justice John Marshall in Strawbridge et al. v. Curtiss et al. (1806), 7 U. S. 267, 2 L. Ed. 435. Thereupon a conference of counsel was held and it was decided that the case should be remanded to the state court.
The abstract shows that on January 21, 1958, a summons was issued out of the state district court and served upon an agent of the defendant Torson Construction Company. No authorities are cited to explain why the state court at that time had jurisdiction to issue the summons. The case was still reposing in the United States District Court. Rut we pass that question.
On February 4, 1959, the federal district court entered an order by agreement of the parties remanding the case to the state court.
Soon thereafter, the Torson company filed an answer which contained two defenses, a denial of negligence and an assertion that the petition showed on its face that the alleged accident occurred on June 17, 1955, and that the action was barred by the two year statute of limitations. Plaintiff filed a reply to this answer denying new matter. When these pleadings came before the district court, that court, in effect, observed that the pleadings indicated the cause of action was barred by the statute of limitations, and so held. All defendants, other than the two appearing as appellees herein, had previously had motions to quash sustained. We are assuming that Fidelity and Casualty had filed an answer similar to Torson’s answer. This is indicated by the lower court’s journal entry.
In appealing to this court from the above order as to the two defendants herein involved, plaintiff has contended that the defendants, by removing the case to the federal court, have in some manner tolled the statute of limitations. The theory of plaintiff is rather vague and no authorities are cited in support of such a theory.
It may be said that it is rather common knowledge that by filing a petition to remove a case to the federal court, a defendant does not enter a general appearance, and the federal court takes the case as to jurisdiction in the same condition as it existed in the state court. (Employers Corp. v. Bryant, 299 U. S. 374, 57 S. Ct. 273, 81 L. Ed. 289.)
The plaintiff argues that he was prevented from obtaining service of summons by the removal to the federal court. We do not believe so. The federal statutes would appear to afford plaintiff ample opportunity to issue summons out of the federal district court, if he could gain any benefit by further service upon the parties to this action. In 28 U. S. C. A. § 1447 (a) we find the following:
“In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.”
In the case of Employers Corp. v. Bryant, supra, a very peculiar situation arose. It was impossible for the federal court to serve summons upon a defendant in the action who resided outside of the federal district. The state court could easily make service anywhere in the state. The federal district court remanded the case to the state court so that service might be obtained, and the Supreme Court of the United States approved.
There is some indication that plaintiff feels there had been some agreement between counsel at the time the case was remanded to the state court. The agreement is not shown, and we feel there has been some unfortunate misunderstanding.
We find on the record of this appeal no reason to hold that plaintiff’s cause of action, if any, was not long since barred by the statute of limitations. The orders of the district court must be affirmed. It is so ordered. | [
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The opinion o£ the court was delivered by
Parker, C. J.:
This was an action to recover damages for personal injuries sustained by the plaintiff in a collision between two automobiles at the intersection of two public highways in Gove County, Kansas. The plaintiff recovered and the defendants appeal from the adverse judgment and divers other rulings and orders of the trial court to be presently mentioned and discussed.
The pleadings can be briefly summarized. All that need be said with respect to them is that the petition charges the proximate cause of the injuries sustained by the plaintiff, Albin, in the collision at the highway intersection was the negligence of defendant Wire, a minor fifteen years of age, in driving a motor vehicle, which was owned by defendant Munsell and operated by Wire with Mun-sell’s consent and approval, upon the highway and into the intersection; that the answer states such injuries resulted from plaintiff’s contributory negligence, describing it; and that the reply denies the allegations of the answer.
With issues joined as above stated the cause came on for trial by a jury. The plaintiff adduced his evidence and rested. Thereupon the defendants demurred to plaintiff’s evidence on the sole ground it failed to prove a cause of action against the defendants, or either of them. This demurrer was overruled. Thereupon defendants presented their evidence, renewed their demurrer to plaintiff’s evidence and then moved for a directed verdict. After these objections were overruled instructions and special questions were given to the jury which ultimately returned a general verdict for the plaintiff in the amount of $10,607.00 along with its answers to special questions. After approving the verdict and the answers to special questions the trial court rendered judgment thereon. Thereafter, their motions to set aside the answers to special questions and for a new trial having been denied, defendants perfected this appeal.
In relating the evidence and discussing the issues we shall refer to the parties in this opinion as they appeared in the court below.
The general factual picture disclosed by the undisputed evidence can be related as follows:
Immediately south of the City of Quinter, Kansas, there is an intersection of two graveled public roads. The east and west highway, a township road, is about twenty-three feet wide and the north and south highway, a county road known as the Castle Rock Road, is about twenty-five feet wide. There are no obstructions to view at the intersection from any direction. Traffic traveling on the east and west highway is controlled by stop signs. The stop sign controlling westbound traffic is located on the right shoulder of the township road, approximately sixty-three feet from the east line of the Castle Rock Road; the stop sign controlling eastbound traffic is located on the right shoulder of the township road, approximately sixty-one feet from the west line of the Castle Rock Road.
On November 8, 1959, the weather was clear and both highways were dry. At about 7:00 p. m. on such day Albin was driving west on the east and west highway in his 1950 Nash automobile. Upon nearing the intersection with Castle Rock Road he stopped at the stop sign prior to entering it with the intention of making a left turn to the south on Castle Rock Road. At or about the same time Wire, age fifteen, who was driving a 1953 Mercury automobile belonging to Munsell with the latter’s consent and approval, drove eastbound into the intersection, at a high rate of speed, after disregarding and ignoring the stop sign for eastbound traffic. A collision, in which Albin was seriously injured, ensued and this lawsuit followed.
In approaching questions involved in this appeal the issues will be simplified by stating at the outset that in the face of the record presented we need give little, if any, attention to the evidence relating to the negligence of Wire or to Munsell’s liability therefor. It may be said, that standing alone, plaintiff’s evidence was sufficient to establish those matters as a*gainst a demurrer. However, in order that there may be no question on those points it should perhaps be stated that, while testifying as a witness in his own behalf, Wire established his own negligence was a proximate cause of the collision by admitting that he drove into the intersection, under the conditions and circumstances heretofore related and by failing to deny the testimony of one of plaintiff’s witnesses, a deputy sheriff— who testified that while he was investigating the accident, soon after the collision, he inquired of Wire as to what had happened, to which inquiry the latter replied “It is all my fault,” and then went on to explain that he did not stop for the stop sign because he thought he was a mile farther west, and that he was traveling between sixty and sixty-five miles per hour. And Munsell established that he was jointly and severally liable with Wire for any damages caused by the latter’s negligence, under and by virtue of the provisions of G. S. 1949, 8-222, when he admitted, while testifying as a defense witness, that such minor had his permission to take and use the automobile he was driving at the time of the collision. From the foregoing it appears that under the uncontroverted evidence the only defense available to defendants in the case, as to the cause of the accident, was that Albin had been guilty of contributory negligence which was a proximate cause of the collision.
The first claims of error advanced by defendants are that the trial court erred in overruling (1) their demurrer to plaintiff’s evidence and (2) their motion for a directed verdict. These two claims can be considered together.
Under our decisions there is ordinarily no material difference between a ruling on a demurrer to the sufficiency of evidence and a directed verdict. (Eckl v. Brennan, 150 Kan. 502, 506, 95 P. 2d 535; Bradley v. Allis Hotel Co., 153 Kan. 166, 176, 109 P. 2d 165; Hatcher’s Kansas Digest [Rev. Ed.], Trial § 134; West’s Kansas Digest, Trial § 168.) Moreover, as in the case of a demurrer, evidence against which a defendant directs a motion for a directed verdict must be construed in the light most favorable to the plaintiff and against the defendant. (Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P. 2d 472; Bishop v. Huffman, 177 Kan. 256, 278 P. 2d 588; Mathis v. Public School District No. 103, 175 Kan. 453, 264 P. 2d 1082; Ripper v. City of Canton, 166 Kan. 185, 187, 199 P. 2d 815; Hatcher’s Kansas Digest [Rev. Ed.] [1961 Cumulative Supp.], Trial § 142; West’s Kansas Digest, Trial § 178.)
Conceding, with commendable candor, that Wire was guilty of negligence, the gist of all contentions advanced by defendants on the points now under consideration is that the evidence shows plaintiff was guilty of contributory negligence which precludes his recovery, hence their demurrer to the evidence and motion for a directed verdict should have been sustained.
That the established rule of this jurisdiction is that a plaintiff's contributory negligence will bar him from recovery in an action for damages sustained in an automobile casualty and that a demurrer to his evidence, or a motion for a directed verdict, should be sustained where his contributory negligence clearly appears from his evidence cannot be questioned. (Moler v. Cox, 158 Kan. 589, 149 P. 2d 611; Dolloff v. City of Wichita, 147 Kan. 63, 75 P. 2d 211; Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Crowder v. Williams, 116 Kan. 241, 226 Pac. 744; Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352.)
On the other hand the rule is equally well-established that, when the facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of the fact, otherwise it is one of law. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; Cruse v. Dole, 155 Kan. 292, 295, 124 P. 2d 470.)
Thus, mindful that it must be construed in the light of the rules to which we have heretofore referred, we turn to the particular evidence on which the rulings on the matters now under consideration must stand or fall. This evidence, we may add, except for one bit of testimony to the effect the front end of each automobile involved was pushed in as a result of the collision, came from the lips of the plaintiff himself and one Victor Stecklein, a deputy sheriff, who testified as a witness in plaintiff's behalf.
Limited to the particular evidence, to which we have previously referred, and without reference to his testimony regarding the general factual picture heretofore outlined, plaintiff testified in substance as follows. That he was completely familiar with the intersection of the two roads; that as he approached the intersection from the east he stopped at the stop sign for westbound traffic; that he did not observe anything out of the ordinary while he was stopped; that it was completely dark; that as he started up he signaled his intention to make a left turn; that as he approached closer to the intersection he was standing or moving in the north lane of traffic of the east and west township road; that before entering the intersection he signified his intention to turn to the left; that at the time he came to the stop sign and stopped he did not observe anything out of the ordinary about the traffic on the highway or about the roadway; that at the time he completed turning on his signal lights he looked up and saw the other car coming from the west; that when he saw the lights coming there was kind of a little dip just west of this corner (intersection); that when Wire’s automobile came out of this dip, and just west of the intersection, he realized the oncoming car was going so fast its driver could not stop at the west intersection stop sign; that, at that time, the Wire car was just west of the intersection on the township road, that plaintiff had not gone into a left hand turn, and the next thing he knew there was just a crash and he could not recall anything that happened thereafter. In addition plaintiff testified that, with regard to the time of the crash, he could not tell whether his car was moving or stopped; that as the Wire car approached the intersection from the west he had no reason to believe it would not stop at the stop sign; that when he first realized that car was not going to stop at the stop sign the accident happened in just a second; and that he did not have time to turn his car either left or right to get out of the way.
The witness Stecklein, after stating he was acquainted with all the parties and had been called to investigate the accident in question and had reached the scene approximately ten minutes after it occurred, testified in substance that when he arrived he found the Wire car east of the intersection on the south side of the township road fifty feet east from the point of impact; that the Albin car was east of the intersection on the north side of the township road fifty-four feet from the point of impact; that from an examination of the two cars he found that there was damage to the left two-thirds of the front of the Wire car and that the Albin automobile was damaged in the same place (i. <?., the left two-thirds of the front thereof); that he determined the point of impact by the tire marks left in the gravel by the vehicles in question, particularly the Wire car which laid down skid marks of ninety feet, which were six feet from the south side of the road, to the point of impact; and that in his opinion the point of impact between the two vehicles was eight feet west and four feet north of the southeast corner of the intersection, which would indicate that, at the point where the accident occurred, there was nineteen feet of roadway to the north and four feet to the south approximately, and further indicate that perhaps the plaintiff was in the process of making a left turn. Sometime during the examination of this witness he was shown a sketch or diagram outlining the scene of the collision, conceded to have been prepared by counsel for defendants. When cross-examined in connection with this sketch he admitted that according to his measurements plaintiff had not proceeded to the center line of the intersection before turning to the left and that it appeared he had cut the corner. However, on redirect examination, he testified he had never been able to determine the exact route of plaintiff’s car and in substance admitted that the “swooping or sloppy” left turn shown on the diagram, (which had been admitted in evidence as defendants’ Exhibit “1”) might, or might not, be correct. This witness also testified that in his opinion plaintiff was driving five miles per hour at the time of the collision.
We do not deem it necessary to burden our reports with a detailed review or discussion of the numerous cases cited by appellants’ astute and diligent counsel in support of their position the rulings now in question were erroneous, for, as has been repeatedly pointed out in our decisions (see, e. g., Nolan v. Hebrew, 177 Kan. 363, 365, 278 P. 2d 1011; Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P. 2d 223; Sullivan, Administrator v. Davidson, 183 Kan. 713, 718, 332 P. 2d 507), it must be remembered that every negligence action depends upon the factual situation disclosed by the record on which it is decided, and that other decisions are of little value as legal precedents unless, as rarely occurs, the governing facts and circumstances are similar. All that need be said as to such decisions is to state, that after carefully reviewing them, we find no case among those cited, so similar from the standpoint of facts and circumstances involved, that it can be regarded as a controlling precedent.
Nor is it necessary that we further labor the evidence of record. It suffices to say that, in our opinion, the evidence already related, when surveyed in its entirety, discloses conditions and circumstances, particularly those relating to limitations of time involved and a confronting nighttime emergency, which could well cause reasonable minds to differ as to whether appellee’s conduct, after he was first able to observe Wire was not going to stop at the stop sign, was of such character as to constitute contributory negligence which was a proximate cause of the collision. Therefore, following decisions to which we have heretofore referred, it necessarily follows that question was for decision by the trier of fact and the trial court did not err in overruling appellants’ demurrer to appellee’s evidence, or in making the same ruling when such motion was renewed at the close of all the evidence, or in denying the appellants’ motion for a directed verdict. The rule is well-established that an operator of a motor vehicle, otherwise obeying the law, who is confronted with a sudden emergency and who, because of want of time in which to form a judgment, acts according to his best judgment but omits to act in a most judicious manner, is not guilty of negligence. (See, e. g., Winfough v. Tri-State Insurance Co., 179 Kan. 525 [Syl. ¶ 3], 297 P. 2d 159.)
Appellants next complain of Instruction No. 15, as given by the trial court, which reads:
“If you find that the plaintiff should recover damages from the defendants, or either of them, you shall fix such damages from the evidence introduced in an amount which will fully compensate the plaintiff for the damages sustained, and it is not necessary that any witness should have testified in this case expressing an opinion as to the amount of such damages, for that is a matter you alone can decide. In determining such amount you may consider from the evidence the plaintiff’s age, occupation, health and physical condition immediately before the injury as compared with his present condition, insofar as his present condition is the natural and proximate result of such injuries; and you may also consider the following, if they appear from the evidence, as they relate to and result from such injuries:
“Plaintiff’s age;
“Plaintiff’s medical and hospital expenses to date, and such prospective future medical expenses as plaintiff may reasonably be expected to incur;
“Plaintiff’s mental anguish resulting from mutilation or disfigurement;
“Plaintiff’s permanent disability or loss of future earning capacity.” (Emphasis supplied.)
For purposes of identification, and to avoid repetition, we have underlined the language of the foregoing instruction which is claimed by appellants to make such instruction erroneous.
Directing our attention to the portion of the instruction, first above emphasized, appellants lift the language thereof out of context and then insist such instruction turned the jury loose to do anything it wanted to do in reaching a decision as to the amount of damages, if any, it would allow in the case. We cannot agree. In this jurisdiction the kind of proof required to establish the essential elements of damage involved in a tort action may be different but when the evidence with respect thereto is all in and it affords data, facts, and circumstances reasonably certain from which liability, and actual loss can be determined, it is the jury’s province to determine the amount of damages sustained on the basis of such evidence. This, we may add, is so even though no witness has testified in the case expressing an opinion as to the amount of such damages. When the language complained of by appellants is left in context and read in connection with its other provisions we think the entire instruction meets the essential requirements of the rule just mentioned, hence it cannot be successfully argued the trial court’s action in giving it should be construed as reversible error. This conclusion, it may be added, finds support in Moore v. Wichita Yellow Cab Co., 136 Kan. 99, 12 P. 2d 736, at page 103, where a like conclusion was reached with respect to almost identical language in an instruction of similar import.
Turning again to Instruction No. 15 appellants point to the last three paragraphs, above emphasized, of such instruction and insist that the three specific items therein mentioned should not have been included in the instruction because there was no evidence from which the jury could reasonably draw any conclusion as to the amounts to be allowed appellee for prospective future medical expenses; for mental anguish resulting from mutilation or disfigurement; and for permanent disability or loss of future earning capacity resulting from his injuries. We are not disposed to burden this opinion with the pertinent evidence of record or labor the contentions advanced by appellants as to its sufficiency. It suffices to say that, after reviewing the entire record and giving consideration to all contentions advanced, we have no difficulty in concluding the evidence in this case clearly warrants the trial court’s action in giving the portions of the instruction now in question, and that contentions advanced by them to the contrary are devoid of merit and cannot be upheld. The fact that the damages disclosed by the evidence cannot be calculated with absolute mathematical or financial exactness does not render them so uncertain as to preclude their assessment. (See, e. g., Domann v. Pence, 183 Kan. 135, 141, 325 P. 2d 321; Avery v. City of Lyons, 183 Kan. 611, 621, 331 P. 2d 906; Rupp v. Norton Coca-Cola Bottling Co., 187 Kan. 390, 392, 393, 357 P. 2d 802; Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 397, 357 P. 2d 804; Baisdrenghien v. Railway Co., 91 Kan. 730, 139 Pac. 428; Railway Co. v. Fowler, 61 Kan. 320, 329, 59 Pac. 648.)
Appellants next complain because the trial court refused to give most of the special questions prepared and asked by them and instead prepared and gave some of its own. The gist of all arguments advanced on this point is that under the provisions of G. S. 1949, 60-2918, appellants were entitled to request ten questions and the court was required to give them. Conceding appellants had a right to request submission of their requested questions it does not follow the trial court was required to give them, particularly in the form requested. This court long ago established the rules governing the contentions raised by appellants in connection with the matter now under consideration. See Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611, where it is held:
“The trial court has discretionary supervision of the form and nature of special questions which may be submitted to a jury, and may properly refuse to submit questions which are highly technical, or which are not focused on the ultimate facts of the matter in issue, or which are designed merely to recapitulate the evidence rather than to determine the facts proven by the evidence.” (Syl. ¶ 1.)
See, also, Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900, which holds:
“The trial court has a wide discretion as to the special questions to be submitted to the jury, and where it appears that a question is not intended to bring out some ultimate fact in the case it is proper to refuse to submit it.” (Syl. IT5.)
And in more recent decisions the court has consistently adhered to the rules announced in the foregoing decisions. See Reda v. Lowe, 185 Kan. 306, 314, 342 P. 2d 172; Kurdziel v. Van Es, 180 Kan. 627, 633, 306 P. 2d 159; Finke v. Lemle, 173 Kan. 792, 797, 798, 252 P. 2d 869; Alexander v. Wehkamp, 171 Kan. 285, 291, 232 P. 2d 440.
In the instant case the trial court in refusing to submit the questions requested — because of their form — pointed out that in this state, where special questions are requested, the requirement is that the court submit them on issues of ultimate fact in the case and that they are not designed to conduct a cross-examination of the jury. It then submitted questions of its own which an examination of the record discloses were limited to ultimate facts on the controverted issues. Under such circumstances it may be stated, without burdening our reports with questions requested or those submitted, that the trial court’s action with respect to those matters did not result in such an abuse of its discretionary powers as to constitute reversible error.
Appellants concede their claims of error in the overruling of their motion for a new trial are predicated on error in the rulings heretofore considered, discussed and determined, hence contentions advanced with respect thereto require no further attention. Moreover, what has been previously stated and held fully demonstrates their final contentions, that the trial court erred in approving the verdict and answers to special questions because they were not supported by evidence and are contrary to the evidence, lack merit and cannot be upheld.
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The opinion of the court was delivered by
Price, J.:
This was an action by a widow for the wrongful death of her husband resulting from a one-car automobile accident.
Plaintiff’s petition was drawn on the theory of res ipsa loquitur, and that her husband was a paying passenger in the car being driven by defendant. In a previous appeal (Flynn v. Allen, 187 Kan. 578, 358 P. 2d 734) it was held that the allegations of the petition on the question of plaintiff’s husband being a paying passenger were sufficient as against a demurrer. The petition is summarized in the opinion of that case.
Defendant’s answer denied that plaintiff’s husband was a paying passenger; alleged that he was a guest and was guilty of contributory negligence; alleged that defendant was faced with an emergency; that he exercised due care under the circumstances, and that the death was a result of an unavoidable accident.
Plaintiff’s reply denied allegations of the answer which were inconsistent with the petition.
Upon the issues thus joined the parties went to trial.
The jury returned a general verdict in favor of plaintiff for $5,000, and made special findings as follows:
“Question No. 1: Do you find that Carroll M. Flynn agreed to buy the gasoline and oil for Charles Robert Allen on February 21, 1959?
“Answer: No.
“Question No. 2: If you answer Question No. 1 ‘Yes,’ did you find that this agreement to buy gas and oil was the motivating cause for Charles Robert Allen taking Carroll M. Flynn with him on February 21, 1959?
“Question No. 3: What, if any, negligence do you find against Charles Robert Allen which was the proximate cause of the collision:
“If any negligence existed it was beyond his control by being distracted by being punched by the passenger.
“Question No. 4: Do you find that Charles Robert Allen was confronted by a sudden emergency, without negligence on his part, as defined by the court’s instructions?
“Answer: Yes.
“Question No. 5: If you answer Question No. 4 ‘Yes,’ did Charles Robert Allen do what a resonably careful man might do under the same or similar circumstances?
“Answer: Yes.”
Defendant’s motion for judgment on the special findings notwithstanding the general verdict was sustained.
Plaintiff’s motion for a new trial — on statutory grounds — was denied.
Plaintiff appealed from the order sustaining defendants motion for judgment on the special findings and from the order overruling her motion for a new trial.
The sole specification of error is that the court erred in overruling plaintiff’s motion for a new trial.
The wrongful-death statute (G. S. 1961 Supp. 60-3203) provides that when the death of one is caused by the wrongful act or omission of another, an action therefor may be maintained against the wrongdoer if the deceased — had he lived — could have maintained an action against such wrongdoer for an injury for the same act or omission. It is clear, therefore, that plaintiff widow can maintain no action for damages for the death of her husband unless he, had he lived, could have maintained an action against defendant for the injury inflicted upon him.
Under the guest statute (G. S. 1949, 8-122b) one who is transported by the owner or operator of a motor vehicle as his guest, “without payment for such transportation,” does not have a cause of action for damages against the owner or operator for injuries, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence on the part of such operator. (Bedenbender v. Walls, 177 Kan. 531, syl. 1, 280 P. 2d 630; In re Estate of Dikeman, 178 Kan. 188, syl. 1, 284 P. 2d 622.)
The petition did not allege — and it is not contended — that defendant was guilty of gross and wanton negligence. As previously stated, the petition alleged — and it is contended — that plaintiff's husband was a paying passenger, in which event recovery could be had regardless of the degree of negligence.
In special finding No. 1, above, the jury, on conflicting evidence as to that issue, found that he was not a paying passenger — that is to say — he occupied the status of a “guest,” and plaintiff, under the mentioned statutes, could not recover absent gross and wanton negligence. The legal effect of that special finding was of course in conflict with the general verdict in favor of plaintiff. The concluding portion of the statute (G. S. 1949, 60-2918), providing for the submission of special questions to a jury, reads:
“When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
See also Metzinger v. Subera, 175 Kan. 542, 546, 266 P. 2d 287.
By virtue of the mentioned finding the court was fully authorized to enter judgment for defendant notwithstanding the general ver diet for plaintiff, and, insofar as this phase of the case is concerned, what has been said in effect disposes of this lawsuit.
We mention briefly, however, plaintiff’s contention that from the answers to special questions it is obvious that the jury was prejudiced against her, and therefore she is entitled to a new trial. She concedes that the answer to special question No. 1, standing alone, would be a complete bar to her right of recovery, but contends that findings Nos. 3, 4 and 5 are without substantial basis in the evidence and clearly show bias and prejudice, particularly when viewed in the light of the “insufficient” general verdict in her favor.
From an examination of the record, however, we feel compelled to disagree. Juries frequently make special findings which are inconsistent with their general verdict. It is common knowledge that members of the same jury often draw wholly different inferences from the same facts, and that different juries might reach opposite conclusions from the same evidence. Nevertheless, in cases of this type the responsibility to determine the facts rests with the jury system. Plaintiff did not move to set aside any of the special findings. No error is predicated on the instructions and therefore it must be assumed the jury was fully and properly instructed on all issues in the case. The order sustaining defendant’s motion for judgment on the special findings — although appealed from — is not specified as error. No error such as to require a reversal being made to appear, the trial court did not err in overruling plaintiff’s motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
Mrs. L. L. Scott, plaintiff (appellee), instituted this action against the executor of Dr. J. G. N. Soanes’ estate, defendant (appellant), to recover for personal services rendered by her to Dr. Soanes during his last illness. The money judgment was sought on a quantum, meruit basis for services performed as a practical nurse and housekeeper. Issues were joined in the district court and the case was tried before a jury. From a verdict and judgment in favor of the plaintiff, defendant executor appeals.
A summary of the evidence follows. Dr. Soanes practiced medicine in Kansas City for over fifty years. At the time of his death he was ninety-three years of age, a widower, his wife having preceded him in death by fifteen years, and childless. Plaintiff worked for the deceased in his office about ten or twelve years prior to the period in question. The plaintiff testified that during the aforementioned years she received ten dollars a day. The evidence discloses that when the doctor’s last illness occurred in October, 1958, Mrs. Scott, who was not a relative of Dr. Soanes, went into his home to look after and care for him and his house. These services were rendered by plaintiff on an around-the-clock basis every day until the time of the doctor’s death. It was stipulated between plaintiff and defendant that plaintiff was an employee of Dr. Soanes from October 7, 1958, to November 5, 1959, a period of fifty-six weeks, and that plaintiff received from Dr. Soanes fifty-three payments of $10.50 each.
The record further discloses, with regard to the nursing care, that Mrs. Scott prepared the doctor’s meals, fed him, gave him his prescribed medications, bathed and shaved him every day, gave him alcohol rubs, and changed the linens on his bed several times each day. She also dressed and undressed him, cut his hair, and at times helped him out of and into bed, and, in general, performed all the necessary services of a practical nurse and housekeeper. When asked how much she expected to receive per day for the services rendered to Dr. Soanes, Mrs. Scott replied ten dollars a day and a dollar a day food allowance. During the thirteen months in question she received partial payment for her services, $10.50 a week, but she did not expect that to be in full payment for the services rendered.
Edward Hill, a witness for the plaintiff, testified with regard to the excellent care rendered to the doctor by the plaintiff as he observed it on his frequent visits to Dr. Soanes. He testified further that Dr. Soanes told him that Mrs. Scott would be “well taken care of.”
Sallie Bowie testified on plaintiff’s behalf to the detailed, faithful care plaintiff rendered to the doctor and the excellent care she took of his home, and further related that in the summer of 1959 Dr. Soanes told the witness he wasn’t paying Mrs. Scott full salary because he planned on her having the house. On cross-examination Mrs. Bowie testified: “Q. And you said Dr. Soanes told you he was partially paying Mrs. Scott? A. Yes, he said he wasn’t paying her full salary.”
On cross-examination Mrs. Scott testified she is presently employed by and taking care of a Sadie Johnson, and for this service she receives ten dollars a day.
Defendant first contends that plaintiff, by accepting regular weekly payments during the period of her services, raises a presumption that each payment was in full settlement of all claims arising out of such relations up to the date of such payments and may not recover on a quantum meruit basis for such services. As a general rule, presumptions with respect to payment are merely presumptions of fact. While they are controlling in the absence of evidence to the contrary, they are rebuttable by evidence showing that the actual fact is otherwise than as would be presumed in the absence of opposing evidence; and where a presumption is overcome by evidence, it is inoperative. (70 C. J. S., Payment, § 110.) In the instant case there is no evidence of a contract for plaintiff’s services at the rate of $10.50 a week other than the mentioned presumption. On the contrary, the record discloses that Dr. Soanes told one of plaintiff’s witnesses that he was not paying plaintiff her full salary and told another witness that Mrs. Scott would be well taken care of. In addition, plaintiff testified she expected to receive ten dollars a day plus a dollar a day for food, and that prior to the doctor’s last illness she received for her services in assisting him in his office the sum of ten dollars a day. In view of the mentioned testimony, and record, we are of the opinion that plaintiff’s evidence sufficiently rebutted the afore-mentioned presumption and made a prima facie case for recovery for her services on a quantum meruit basis.
Defendant next contends that plaintiff was incompetent to testify to transactions between her and the decedent with respect to the nature of the services rendered by her in deceased’s last illness. We find little merit to this contention. Defendant, having stipulated that plaintiff was employed by Dr. Soanes during the fifty-six-week period in question, thereby established the fact that the services were performed and that there was some kind of an agreement. In so doing, the defendant opened the door for the plaintiff to introduce evidence and to testify as to the nature of her work. (Poole v. Poole, 96 Kan. 84, 93, 150 Pac. 592; Bank v. Abbott, 104 Kan. 344, 347, 179 Pac. 326.) Even if some of the testimony of Mrs. Scott on this issue might be treated as close to the line of incompetency, under the circumstances it should not be regarded as material error. (Lee v. Downing, 113 Kan. 329, 214 Pac. 786.) Moreover, the witnesses Hill and Bowie testified in detail as to the work and services performed by the plaintiff, and there was, in fact, no contradictory nor conflicting testimony with respect to the work done by her. The error, if any, in the admission of the testimony was not material. (Heery v. Reed, 80 Kan. 380, 102 Pac. 846; In re Estate of Marcotte, 170 Kan. 189, 193, 224 P. 2d 998.)
It is also assigned as error that the trial court permitted the plaintiff to testify that she expected to be paid ten dollars a day for the services rendered. Her intention was a material matter in the case. If she had no intention of receiving more than the $10.50 a week, she could not have recovered. The objection to her testimony in this regard runs rather to its credibility than to its competency. The evidence was properly admitted. (Story v. McCormick, 70 Kan. 323, 330, 78 Pac. 819; In re Estate of Woodford, 171 Kan. 265, 270, 232 P. 2d 456.)
After a careful review of the record we are unable to find where the defendant has made it affirmatively appear that the trial court erred in any of the particulars complained of. The defendant admitted the rendition of the services by the plaintiff; that there was an implied contract between plaintiff and the decedent to pay the reasonable value for such services is a fair deduction from the evidence and circumstances appearing in the case; the evidence to support plaintiff’s claim was sufficient and the circumstances themselves were potent corroborative evidence of a contract. With all of this evidence before us we must conclude that the judgment of the trial court should be and it is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This case stems from a mortgage foreclosure action and is here on appeal from an order of the trial court refusing to vacate a default judgment rendered against the defendants in the court below.
The pertinent facts, events and circumstances necessary for a proper understanding of the appellate issues involved may be stated thus:
On October 22, 1957, John and Lucile Dysart (defendants) were the owners of Lot 4, Block 28, L. C. Challiss Addition to the City of Atchison. On that date they obtained a loan from Bernard Beck, d/b/a Better Living Construction Company. As evidence of the loan they gave Beck their promissory note in the sum of $2,300.40 and to secure its payment they made, executed and delivered to him their mortgage deed covering the above described property. On the same date Beck assigned the note and mortgage to the Anchor Savings & Loan Association (plaintiff), for a valuable consideration. Thereafter, and on October 28, 1957, the mortgage and the assignment thereof were recorded in the office of the Register of Deeds of Atchison County.
Plaintiff commenced action against the defendants on June 26, 1958, for judgment on the note and foreclosure of the mortgage for defendants’ failure to make payments in accord with the terms of such instruments. It is conceded service of summons was had on the defendants as of that date, advising them that they must answer the petition filed by the plaintiff against them on or before July 28,1958, or such petition would be taken as true and judgment rendered against them for the amount of the note, interest, taxes, foreclosure of the mortgaged real estate, the sale of such real estate to satisfy the indebtedness, and other proper relief.
Thereafter, and on December 12, 1958, no motions or pleadings having been filed by the defendants in defense of the action— and at a time when, according to the district judge, the only thing in the case to show defendants were, or had been, represented by counsel was the name of Robert F. Duncan (an attorney) endorsed on the trial docket sheet under date of November 26, 1958— the district court found the defendants were wholly in default and rendered the involved default judgment against them in accord with the prayer of plaintiff’s petition.
More than eighteen months after rendition of the foregoing judgment, to be exact on July 2, 1960, the defendants, through the attorneys who now represent them in this appeal, filed a petition, verified by affidavit, to vacate such judgment in which they alleged they were filing that pleading under the following provisions of G. S. 1949, 60-3007:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.
“Seventh. For unavoidable casualty or misfortune preventing the party from prosecuting or defending.”
So far as required for disposition of this appeal further allegations of such petition charged in substance (1) that the judgment in question was irregular and should be vacated because it was granted in violation of Rule No. 48 of this court (G. S. 1949, 60-3827) without a motion having been filed by the plaintiff for a judgment by default and (2) that such judgment should be set aside for the reason that defendants were prevented by unavoidable misfortune from defending against the demands of the plaintiff in its petition as defined by the Seventh subdivision of 60-3007, supra.
Plaintiff joined issues by an appropriate answer on the claims advanced by defendants in their petition to vacate the judgment whereupon, after a hearing on those issues, at which all parties adduced evidence, the court found that the petition to vacate the judgment should be denied and entered its judgment and order accordingly. Thereupon defendants perfected the instant appeal.
The first claim of error presented by appellants is that the default judgment obtained by appellee against them on December 12,1958, was an irregularity within the meaning of G. S. 1949, 60-3007, Third.
In support of their position on this claim appellants first point out that under our decisions (see, e. g., Babb v. City of Wichita, 172 Kan. 416, 241 P. 2d 755; Dearborn Motors Credit Corporation v. Neel, 181 Kan. 598, 313 P. 2d 243; Becker v. Roothe, 184 Kan. 830, 339 P. 2d 292) an irregularity within the meaning of G. S. 1949, 60-3007, Third, authorizing vacation of a judgment for irregularity in obtaining judgment, is the want of adherence to some prescribed rule or mode of procedure; and it consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unreasonable time or improper manner.
We have no quarrel with the sound and salutary rule of the foregoing decisions, where the facts of a given case warrant their application. Nevertheless, in determining their applicability, the test to be applied in all cases is the want of adherence to some prescribed rule or mode of procedure on the part of the trial court in rendering the judgment in question.
In further support of the claim now under consideration appellants direct our attention to Rule No. 48 (G. S. 1949, 60-3827) which reads:
“In all causes or matters in which adverse counsel has appeared of record, no default judgment shall be rendered except upon motion and the giving of at least a three days’ notice to such adverse counsel of the hearing thereof: Provided, This rule shall not apply to the first day of a regular term of court fixed by the statute.” (Emphasis supplied.)
And, conceding as they must, the undisputed facts of record make it affirmatively appear that at the time of the rendition of the judgment Mr. Duncan s name had not been entered of record in the appearance docket of the clerk of the district court as attorney for the appellants in the action and no motions or pleadings had been filed in such action in their behalf in the office of that official, appellants next raise the question that, since the judgment was not rendered on the first day of a regular term of court fixed by the statute, the subscription of the name of Mr. Duncan on the trial court’s docket sheet as attorney for appellants made the above quoted rule applicable and compels a conclusion the trial court erred in rendering the default judgment without requiring appellee to comply with the particular portions thereof, hereinabove underlined for purposes of emphasis and present identification.
Appellants cite no decisions supporting their position on the question thus raised by them and an extended examination of our cases discloses no case dealing with the force and effect to be given the heretofore quoted provisions of Rule 48 in a proceeding to vacate a default judgment, under conditions and circumstances such as are here involved. We therefore approach such question as one of first impression, mindful as we do so that this court has always promulgated and adopted its rules with full recognition of, and an intent to conform with, the settled law of the state as laid down and established by its prior decisions.
Turning to the decisions it may be said that this court long ago held that the minutes made by the judge of the court upon his trial docket constitutes no part of the record of the case (see Pennock v. Monroe, 5 Kan. 578) and in subsequent decisions (Gilmore v. Salt Co., 92 Kan. 18, 20,139 Pac. 1168; Gates v. Gates, 160 Kan. 428, 431, 163 P. 2d 395) to which we adhere, approved the decision in the Pennock case and definitely established the principle therein announced as the settled law of the state.
Therefore when Rule 48 is considered on the basis of intention of the court in promulgating and adopting it we hold that it is to be construed as having application only to situations where adverse counsel has caused his name to be entered in the appearance docket in the office of the clerk of the district court in which the action is pending or has filed some motion or pleading in the action for and on behalf of the parties represented by him.
In view of what has been heretofore stated and held it necessarily follows that appellants were not represented by counsel of record at the time the default judgment was rendered and the fact such judgment was rendered without regard to the provisions of Rule 48 did not afford them grounds for relief under the provisions of G. S. 1949, 60-3007, Third.
In reaching the conclusion just announced we have not overlooked the contention, strenuously argued by appellants, that Potter v. Rimmer, 173 Kan. 633, 250 P. 2d 771, fully supports their position the trial court was required to comply with the provisions of Rule 48 under the facts and circumstances existing at the time it entered the judgment. We do not agree. The trouble from their standpoint is that an examination of the opinion in that case (pp. 634 and 635) makes it clearly appear that at the time the default judgment there rendered was entered by the court the defendants in that case were represented by counsel of record who had filed an answer and counter-claim in their behalf in the office of the clerk of the court long prior to the date of the judgment.
We shall not burden our reports with contentions advanced by appellants with respect to their claim they were prevented by unavoidable misfortune, as defined by 60-3007, Seventh, from defending the foreclosure action. Nor will we detail the evidence adduced by them on such point. It suffices to say that, after carefully considering all the evidence adduced with respect thereto, we are convinced, as the trial court must have been, that appellants were more interested in delaying that action than in defending it. Moreover, we are satisfied the evidence, when carefully analyzed and surveyed in its entirety, brings appellants squarely within the well-established rules announced in Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133, where it is held:
“A litigant ordinarily can not maintain an action to vacate a judgment on the ground of ‘unavoidable casualty or misfortune,’ where he was grossly negligent and inattentive to his lawsuit during its entire pendency and for nearly three months after judgment by default was rendered against him.” (Syl. ¶ 5.)
And in the opinion said:
“The rule is settled that a litigant can not invoke the code provision [now G. S. 1949, 60-3007, Seventh.] for relief on the ground of ‘unavoidable casualty or misfortune - preventing a defense,’ where he has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense, nor on account of the negligence of his attorney. (Daniel Hill v. Elias Williams, 6 Kan. 17; Winsor v. Goddard, 15 Kan. 118; Mehnert v. Thieme, 15 Kan. 368; Welch v. Challen, 31 Kan. 696, 3 Pac. 314; Weems v. McDavitt, 49 Kan. 260, 30 Pac. 481; Holderman v. Jones, 52 Kan. 743, 34 Pac. 352.)” (p.487.)
For more recent decisions supporting the rules to which we have just referred see Kircher v. Kircher, 111 Kan. 551, 207 Pac. 779; Johnson v. Salkeld, 126 Kan. 807, 809, 271 Pac. 385; First Colored Baptist Church v. Caldwell, 138 Kan. 581, 583, 27 P. 2d 239; Stockgrowers State Bank v. Clay, 150 Kan. 93, 95, 90 P. 2d 1102; Renner v. Black, 150 Kan. 834, 839, 96 P. 2d 626.
Arguments advanced by appellants concerning the overruling of their motion for a new trial present nothing new and what has been heretofore stated compels a conclusion the trial court did not err in denying their petition to vacate the default judgment. Therefore the order and judgment from which appellants have appealed must be and is affirmed.
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Lewis, J.:
This was an action filed 1/ Roger E. Slayden, plaintiff, to recover damages sustained in an automobile accident. The plaintiff was injured when the car in which he was a passenger was struck by a car driven by Jennifer S. Sixta, defendant. The trial court held that plaintiffs action was time barred and dismissed his petition. Plaintiff appeals that ruling. Finding no reversible error, we affirm.
On October 25, 1987, the accident in which plaintiff suffered injury took place. At that time, defendant was a resident of Kansas and lived in Prairie Village. Plaintiff proceeded to negotiate with defendant’s insurance company for a period of nearly two years. During that time, plaintiff s counsel had over 12 contacts by phone and by letter with the insurance carrier.
In April 1988, defendant moved from Prairie Village to St. Charles, Missouri. Although her insurance carrier knew of her move, it did not advise plaintiffs counsel of that fact. However, we note that nowhere in the record is it indicated that plaintiffs counsel asked defendant’s insurance carrier for this information.
The cause of action to be asserted by plaintiff was one sounding in tort. Thus, the applicable statute of limitations required that he file suit within a two-year period from the date of the accident. K.S.A. 1990 Supp. 60-513.
On October 25, 1989, exactly two years after the accident, plaintiff filed his petition. The petition alleged that defendant was a resident of Prairie Village, Kansas, and the summons was issued for service at a Prairie Village address. The address used by plaintiff in the original summons was obtained from the accident report. The original summons was issued October 25, 1989, and was returned November 7, 1989, unserved with the notation that the defendant had “[m]oved; somewhere in St. Louis.”
On the date the original summons was returned unserved, plaintiff ordered a “post office tracer” seeking the correct address of the defendant.
On November 13, 1989, the post office tracer was returned bearing the address of defendant, which was shown correctly to be 2278 North Village Drive, St. Charles, Missouri.
On December 6, 1989, 23 days after obtaining the correct address, plaintiff procured the issuance of an alias summons. The summons was issued by the clerk’s office with the incorrect address of “1178 North Village Drive.” Plaintiffs counsel apparently did not check the summons for clerical mistakes and did not become aware of the mistake until January 16, 1990, when the summons was returned unserved. On January 23, 1990, a new alias summons was issued bearing the defendant’s correct address. On January 30, 1990, personal service was made on defendant.
As we pointed out, the statute of limitations in this case would have run on October 25, 1989. However, K.S.A. 1990 Supp. 60-203 provides in pertinent part: “(a) A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained . . . within 90 days after the petition is filed.”
The net result of the statute is that, if service is made within 90 days of the date of filing, the action is deemed commenced on the date of filing. In the present litigation, service was not obtained on defendant until January 30, 1990, some 97 days after the petition was filed. As a result, the action was not commenced until January 30, 1990, which is beyond the two-year period of limitations. Based on this fact, the trial court dismissed the action as being time barred.
On appeal, plaintiff raises two basic arguments to show that the trial court erred.
WAS THE STATUTE OF LIMITATIONS TOLLED BY THE ABSENCE OF DEFENDANT FROM THE STATE?
K.S.A. 60-517 forms the basis of plaintiffs argument, and reads as follows:
“If when a cause of action accrues against a person he or she be out of the state, or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run until such person comes into the state, or while he or she is so absconded or concealed, and if after the cause of action accrues he or she depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. This section shall not apply to extend the period of limitation as to any defendant whose whereabouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter.”
Plaintiff points out that defendant was absent from this state from approximately May 1, 1988, to the time of service. He says that he did not know her whereabouts from the time she left until November 13, 1989, when he obtained her address by a post office tracer. Plaintiff insists, therefore, that, by virtue of K.S.A. 60-517, the statute of limitations was tolled from the time defendant left the State of Kansas to the time he discovered her address. If plaintiff is correct, the statute of limitations was tolled from approximately May 1, 1988, until November 13, 1989. This is a period of nearly I8V2 months, and, if the tolling did take place, the commencement of the action on January 30, 1990, would have been well within the period of limitation.
Unfortunately for plaintiff, K.S.A. 60-517 has not been interpreted literally. The mere fact of absence from the state does not toll the statute of limitations even though a plaintiff may not know the whereabouts of the defendant.
K.S.A. 60-517 was adopted from the old code when Kansas enacted its new code of civil procedure. Only the last sentence of the statute is new, and the decision of this case is dependent upon the interpretation of that sentence. See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-517 (1979).
The statute in question clearly states that its tolling effect will not apply as to any defendant “whose whereabouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter.” The key question presented, to the courts in the past and in the instant matter is the question of when someone’s whereabouts are “known.”
To our knowledge, the first case to deal with this question was Carter v. Zahn, 37 F.R.D. 556 (D. Kan. 1965). In that case, defendant had moved from Kansas to Vermont. Plaintiff was unable to locate the defendant in time to serve him within the period of limitation. Plaintiff argued that the statute of limitations was tolled by the defendant’s absence from the state. In considering this issue, Judge Wesley E. Brown put the question as follows:
“The critical question thus becomes whether defendants’ whereabouts were known. The Kansas statute is silent as to who must know of defendants’ whereabouts. It seems to us that the only reasonable and logical construction to be placed on the phrase is ‘known to plaintiff,’ or by the exercise of due diligence should have been known to plaintiff.” 37 F.R.D. at 559.
The court also said:
“As we read the Kansas tolling statute, the statute of limitations will not run so long as defendant is absent from the state unless plaintiff knows or should have known his whereabouts and can get out-of-state service on defendant through Article 3.” 37 F.D.R. at 559.
Thus, in Zahn, the court says that a defendant’s whereabouts are unknown only if plaintiff (1) did not know of defendant’s whereabouts, and (2) could not, through the exercise of reasonable diligence, have known of the whereabouts. This is a very different inquiry from one that seeks to determine only if a defendant was absent from the state and his whereabouts were unknown to plaintiff.
In Carter v. Kretschmer, 2 Kan. App. 2d 271, 577 P.2d 1211, rev. denied 225 Kan. 843 (1978), this court dealt with a case in which the plaintiff took the singular position that the statute was tolled by the defendant’s absence from the state. The trial court had dismissed the plaintiff s petition as time barred. We affirmed, stating:
“Resolution of the issue raised requires consideration of our statutes relating to service of process upon nonresident motorists. K.S.A. 8-401 and 8-402 designate the secretary of state as the agent of nonresident motorists for the purpose of receiving process arising out of accidents occurring in this state. Not only did defendant have an agent within the state upon whom process could have been served but he himself could have been served personally under the long arm statute. See Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964); 17 A.L.R.2d 502-518 and cases cited therein; K.S.A. 60-308(fc)(2). By exercise of due diligence plaintiff should have known the defendant’s whereabouts as early as September, 1976, and did know his whereabouts at all times after October 13, 1976. Carter v. Zahn, 37 F.R.D. 556 (D. Kan. 1965). The defendant, therefore, was not ‘absent’ from the state in the sense contemplated by K.S.A. 60-517; that is, beyond the reach of process from our courts. Snyder v. Clune, supra.
“While not uniform, the majority of cases from other jurisdictions bearing upon the question have determined that in auto accident cases, a tolling provision will not operate to suspend a statute of limitations where substituted service is available. [Citation omitted.]” (Emphasis added.) 2 Kan. App. 2d at 272.
This decision basically adopts the approach of Carter v. Zahn. A defendant is not “absent” under 60-517 unless (a) plaintiff does not know his whereabouts, and (b) plaintiff cannot with due diligence determine those whereabouts.
In Johnson v. Miller, 8 Kan. App. 2d 288, 289, 655 P.2d 475 (1982), although the issue was concealment, we discussed 60-517 and stated:
“This statute was recently discussed in Gideon v. Gates, 5 Kan. App. 2d 23, 611 P.2d 166, rev. denied 228 Kan. 806 (1980). The court held that the word ‘known’ as used in the statute means an address or place where service of process upon the defendant can be effected that is known or should have been known to plaintiff by the exercise of due diligence. (See also Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-517 [1979].)
“Thus the issues here are: (1) Whether the plaintiff, in the exercise of due diligence, knew or should have known of defendant’s whereabouts, and (2) whether defendant concealed himself.”
As we read Johnson, it reinforces the doctrine that a defendant’s whereabouts are only “unknown” if plaintiff is unable to determine those whereabouts in the exercise of due diligence.
We view the decision in Gideon v. Gates, 5 Kan. App. 2d 23, 611 P.2d 166, rev. denied 228 Kan. 806 (1980), as factually identical and controlling in the instant matter.
The trial court in Gideon dismissed the plaintiffs petition as time barred. In Gideon, the action was filed within the period of limitation, but service of process was not completed until 93 days after the petition was filed. As a result, the relation back provisions of the statute did not apply, and the action was not deemed commenced until the date of service. The date of service was more than two years after the cause of action accrued. The plaintiff in Gideon contended that the defendant was absent from the state, thereby tolling the statute of limitations. We affirmed the trial court’s dismissal of the petition and said:
“It is apparent that a plaintiff does not sustain the burden of proving facts sufficient to toll the statute of limitations by demonstrating merely that a defendant was physically absent from the state. It must also be shown that defendant’s whereabouts while outside the state were not known, and that service of process could not have been effected under article 3 of chapter 60.’’ 5 Kan. App. 2d at 25.
We commented on the evidence relative to defendant’s absence and said: ;
“The fourth occasion of absence specified by plaintiff is from January 5, 1976, to June 4, 1976, during which defendant gave up his apartment in Junction City and moved to Raytown, Missouri, for the purpose of participating in a work-study program sponsored by Kansas State University. During that period he did not pay rent on his apartment in Junction City, but his apartment was left vacant with the understanding that it was his intention to return to Junction City after the program had been completed. His landlady knew how to get in touch with him as he left his address with her. He left his address with a Junction City newspaper where he had formerly been employed, as well as with Mr. Nesmith who handled his work-study program at the University. He also filed a change of address with the United States Post Office. Plaintiff makes no contention that defendant’s whereabouts during this period of absence from the state could not have been ascertained with a minimum of effort and, at oral argument, admitted such to be true. It is apparent from the record that service of summons could have been effected under K.S.A. 60-308 while defendant was in Raytown and, under other provisions of article 3 of chapter 60, at all time following the accrual of the cause of action on November 30, 1974.” 5 Kan. App. 2d at 26.
The facts in the instant matter are very similar to Gideon. When this defendant left Kansas to move to Missouri, she left a wide and easily followed trail. Prior to moving, she left a notice of change of address at the post office, which is how plaintiff ultimately located her. Her parents, in-laws, friends, and family were all aware of her new address. She left her new address with her former employer, and the person who purchased her home in Prairie Village was her husband’s best friend and also knew the address. Her insurance carrier knew her address but was never asked for it by the plaintiff. The defendant in this case was no more “absent” than was the defendant in Gideon.
In resolving this issue, we have treated the trial court’s dismissal as we would a motion for summary judgment. We have examined the record in the light most favorable to plaintiff, and we are convinced that the facts, as shown, were not sufficient to toll the operation of K.S.A. 1990 Supp. 60-513(a)(4).
As we interpret the law of Kansas, a defendant is only “absent” from this state within the meaning of 60-517 if the plaintiff is unaware of the defendant’s whereabouts and could not, with reasonable diligence, have discovered those whereabouts. The facts in the instant matter show beyond any doubt whatsoever that, at all times relevant herein, this defendant’s whereabouts were discoverable with the exercise of a minimum of effort. Indeed, the undisputed facts show that, as soon as plaintiff discovered defendant had moved, he located her new address almost immediately with a simple inquiry to the post office. It does not appear that there was any point before or after suit was filed that defendant’s whereabouts could not have been discovered with the exercise of the most minimum reasonable effort and with ample time to complete service within the time frame provided by K.S.A. 1990 Supp. 60-203. Indeed, the record shows that plaintiff had discovered defendant’s out-of-state address on November 13, 1989, a full two months before the 90-day relation back would run.
Based upon the facts, we hold that, as a matter of law, this defendant was not “absent” from the State of Kansas within the meaning of K.S.A. 60-517, and her absence did not toll the operation of the statute of limitations.
Plaintiff cites to us the case of Garrison v. Vu, 233 Kan. 236, 662 P.2d 1191 (1983), as mandating a decision in his favor. In that case, the Supreme Court reversed our earlier decision, which can be found at 8 Kan. App. 2d 189, 653 P.2d 824 (1982). We have reviewed both our opinion and the Supreme Court opinion, and we see nothing in the Supreme Court’s comments in Garrison v. Vu that detracts from the law as stated in Gideon and the other decisions discussed in this opinion.
Garrison v. Vu presented a very unique factual pattern in which the plaintiff was led to believe that Vu was a resident of Kansas and that he had proper service on him by the sheriff’s return of summons and an answer filed on behalf of Vu. We distinguish Garrison from the case at hand. They are not similar factually, and we hold that Garrison has no relevance to the current matter.
THE UNIQUE CIRCUMSTANCES DOCTRINE
Plaintiff next suggests that his predicament is due, in whole or in part, to the error of the clerk of the district court in issuing the first alias summons with the wrong address. He argues that we should seize upon that error and judicially expand the relation back of K.S.A. 1990 Supp. 60-203 under the “unique circumstances” doctrine announced in Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). We disagree and decline to do so.
We believe that Schroeder v. Urban is factually distinguishable from the instant matter and that the doctrine announced in that case should not be applied in the instant matter.
In Schroeder, the appellants had, prior to the running of the applicable time period, applied to the trial court to extend the time in which they might file their notice of appeal. The trial court granted them an additional 30 days. In reliance on the trial court’s order, appellants filed their notice of appeal after the original time had run but within the additional 30-day period granted to them by the trial court. This court, in an unpublished opinion, held that the trial court had no jurisdiction to issue its order and summarily dismissed the appeal. On petition for review, the Supreme Court reversed our dismissal and judicially enlarged the statutory time for filing a notice of appeal. The court did so because of the “unique” circumstances involved and because it felt that appellants should not be penalized for relying on what they perceived to be a valid order of the trial court. The law of Schroeder v. Urban is set forth in the syllabus as follows:
“In the interest of justice, an appeal which is otherwise untimely may be maintained in unique circumstances if (1) the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant flies a notice of appeal within the period apparently judicially extended.”
The facts of this action simply do not fit the law as announced in Schroeder.
Since Schroeder was filed, the court has carefully confined it to situations where a party has relied on an apparently valid order issued by a trial judge. See Butler v. U.S.D. No. 440, 244 Kan. 458, 460, 769 P.2d 651 (1989); Johnson v. American Cyanamid Co., 243 Kan. 291, 298-301, 758 P.2d 206 (1988). Indeed, in Read v. Miller, 247 Kan. 557, 560, 802 P.2d 528 (1990), the Supreme Court acknowledged the doctrine of “unique circumstances” but specifically refused to apply it to extend the relation back period in 60-203, stating as follows:
“If a trial court grants an extension of time for filing a notice of appeal, an appeal filed during the extended period wall be deemed timely filed, even though the trial court had no authority to extend the appeal period, if the extension was granted prior to the expiration of the original appeal period, and the appellants relied to their detriment on the purported extension. This exception has no application to this case.”
In the case now under consideration, there was no reliance on any “judicial action.” The mistake made was a clerical mistake by the clerk of the court. A practicing attorney should realize that, when he trusts the preparation of a summons or other documents to a third party, a clerical error is possible. Thus, we suggest that counsel has an obligation to carefully examine all documents prepared by the clerk of the court to see that no error has occurred. In the alternative, such documents may be prepared by counsel and handed to the clerk of the court for issuance. An order issued by a trial judge has the authority of law unless and until it is reversed or otherwise overturned. A litigant has no choice but to abide by that order and has every right to rely on the order and expect that his reliance will not be fatal even if the order is subsequently overturned. The clerical work issued by a clerk does not carry the same authority, and any mistakes or misstatements may be changed at will by attentive counsel. We decline to extend the unique circumstances doctrine to the facts of this case.
We also believe that the doctrine should be applied only where it is and was the only remedy available to the party who has relied on the court’s action. In the instant matter, plaintiff had another obvious remedy which was not utilized. As pointed out earlier, plaintiff discovered the clerk’s clerical error on January 16, 1990. At that point, plaintiff had one week until the running of the 90-day relation back period. It appears to this court that plaintiff could have and should have applied to the trial court to extend the 90-day relation back period. K.S.A. 1990 Supp. 60-203 provides that the court may extend a 90-day period by an additional 30 days for good cause shown. We believe that plaintiff had good cause to request the extension of the 90-day relation back period and simply failed to request that relief from the court. We do not believe that the “unique circumstances” doctrine would apply when relief was immediately available to the litigant by the filing of a motion under 60-203. If such relief is available, we do not deem the circumstances to be particularly unique.
As pointed out in Read v. Miller, the 90-day relation back period can only be extended by a motion filed before the original 90-day period has expired. We do not have the authority to extend that period. The trial court did have the authority but was not asked to do so. We are not inclined to reverse a trial court in a situation where the necessary relief was available for the asking. The problem plaintiff now faces was correctable upon proper application to the trial court. That application was never made, and the fact that such relief was available negates any extension of the unique circumstances doctrine to the facts of this action.
Plaintiff implies that the insurance carrier had a duty to advise him that defendant had moved from the state. He suggests that we should somehow hold the insurance carrier’s failure to tell him defendant had moved creates an estoppel. There is no merit to this argument. The record shows that plaintiff never inquired of the insurance carrier as to the whereabouts of defendant. The insurance carrier did nothing to mislead plaintiff, and we see no grounds for estoppel.
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Lewis, J.;
This is an appeal from the decision of the trial court to dismiss the action filed by appellant, Hill & Company, Inc., (Hill) against appellee, John O’Malley, d/b/a O’Malley Plumbing, Inc. We hold that the trial court incorrectly decided the issues, and we reverse and remand.
Hill is a corporation engaged in the business of selling wholesale plumbing, heating, and electrical supplies and equipment. In 1979, Hill entered into an agreement with O’Malley, whereby Hill agreed to furnish plumbing equipment and supplies to O’Malley on a credit basis. At the time the credit agreement between Hill and O’Malley was instituted, O’Malley was operating as a sole proprietor and he established an individual credit line account with Hill. The evidence indicates that the account between Hill and O’Malley remained an individual credit account from the time of its inception to the time this lawsuit was filed.
In 1985, O’Malley incorporated his plumbing business as O’Malley Plumbing, Inc. (O’Malley, Inc.). The evidence is conflicting as to whether O’Malley notified Hill orally that he had incorporated. The parties agree that no written notice was given to Hill of O’Malley’s incorporation. The evidence was uncontradicted that Hill would not extend credit to a corporation such as that formed by O’Malley without first requiring that the principal owner and shareholder sign a personal guarantee of the corporate debts. In the instant matter, O’Malley signed no such personal guarantee.
This lawsuit comes about because O’Malley, Inc., became insolvent and took bankruptcy. At the time of the bankruptcy of the corporation, the personal account which O’Malley had with Hill showed an unpaid balance of $6,172.97.
After the bankruptcy of O’Malley, Inc., Hill sued John O’Malley personally for $6,172.97.
Hill’s petition against O’Malley does not mention the corporation and was framed against O’Malley as an action for goods bought, sold, and delivered from Hill to O’Malley.
At the close of the evidence, O’Malley moved the court for an order dismissing the petition filed by Hill. The court granted this motion, stating:
“4. The Court granted defendant’s motion for dismissal based upon the lack of evidence to support plaintiffs attempt to ‘pierce the corporate veil’, and Plaintiff, Hill and Company, Inc., as a matter of law had notice of the fact of the incorporation by receipt of checks, all as set forth in the court’s oral decision.”
During the evidentiary phase of the hearing, O’Malley had introduced some 11 checks which he had used to pay Hill through the years, each of which bore the name: “O’Malley Plumbing, Inc.” The trial court, in its oral decision, said: “I think that Hill and Company as a matter of law did have notice of the fact of the incorporation. The checks I think are sufficient to put the company on notice that they are dealing with a corporation.”
We have examined the record in this case and conclude that the trial court applied the wrong rationale in reaching its conclusion, which requires us to reverse and remand.
We agree that there was no evidence to “pierce the corporate veil.” The problem with that finding by the trial court is that Hill insists that it was not attempting to “pierce the corporate veil” and that it was not required to do so to prove its case. We concur.
We have examined the pleadings and have read the transcript of the trial. We find nothing in the pleadings or the trial transcript that suggests Hill was proceeding on a theory designed to “pierce the corporate veil.” The lawsuit was against O’Malley individually and not against O’Malley, Inc., and in no way did it refer to the corporation. We think that the trial court erred in dismissing the action on the corporate veil theory since that theory was not relied upon by the plaintiff in seeking relief.
As we interpret the pleadings and the evidence, it is our judgment that Hill was: (1) seeking to prove that its only agreement was with O’Malley, the individual, who could not, unilaterally, avoid his personal liability by incorporating his business, and/or (2) seeking to establish liability on O’Malley on the theory that he could not escape liability by seeking to shift the responsibility of the bill to an undisclosed principal, i.e. O’Malley, Inc.
The trial court simply short-circuited the entire process when it held that, as a matter of law, Hill was informed of O’Malley’s change to a corporate status by accepting 11 checks from O’Malley, which bore the legend “O’Malley Plumbing, Inc.,” on the face of the checks. We hold that the trial court was wrong in resolving the question of liability in this manner.
Generally, the determination of whether a person had actual knowledge of something is a question of fact. Thomas v. Evans, 200 Kan. 584, 589, 438 P.2d 69 (1968); Colorado Interstate Gas Co. v. Dufield, 9 Kan. App. 2d 428, 430, 681 P.2d 25, rev. denied 235 Kan. 1041 (1984). Appellant contends that the appropriate standard of review for this court is set out in Baker v. R. D. Andersen Constr. Co., 7 Kan. App. 2d 568, 644 P.2d 1354, rev. denied 231 Kan. 799 (1982), wherein the court stated:
“Generally, when ruling on a motion for involuntary dismissal under K. S.A. 1981 Supp. 60-241(fc) at the close of plaintiffs case, a trial judge sitting without a jury has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case. [Citation omitted.] On appellate review of an order of involuntary dismissal entered as per the situation above, the findings of fact made by the trial court will be upheld if there is substantial evidence to support them, and the evidence will be viewed in the light most favorable to the party prevailing at trial. [Citations omitted.]” 7 Kan. App. 2d at 579.
We do not agree that the quotation above is the appropriate standard of review in this case. In the instant matter, the court found that Hill received 11 checks from O’Malley, Inc. as payment on the account originally opened by O’Malley in his individual capacity. The preprinted checks listed the name of the drawer as “O’Malley Plumbing, Inc.” Based on this evidence, the district court concluded that Hill had actual notice of O’Malley’s incorporation “as a matter of law” by receipt of the checks and, thus, could not maintain an action against O’Malley individually.
As can be seen, the district court’s conclusion that the receipt of corporate checks constituted notice of incorporation as a matter of law is a legal conclusion subject to unlimited review by this court on appeal. See McMichael v. Land Co., 104 Kan. 778, 781, 180 Pac. 777 (1919); Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
We are not, therefore, limited to a determination as to whether there is substantial evidence to support the trial court’s finding. That finding interprets the evidence as a matter of law and is subject to unlimited review by this court, and we conclude that it does not reflect the law of this state.
The question of whether O’Malley advised Hill of his change to a corporate status, in such a manner as to shift his personal liability to the corporation, is not a question of law but is a question of fact. The evidence on this particular issue was conflicting. There was evidence that O’Malley gave Hill oral notice of his incorporation. Hill’s witnesses strongly deny that this ever happened and insist that they had no oral notice. The checks issued by O’Malley, Inc., to Hill in payment of invoices are evidence of notification in and of themselves. These checks, however, are counterbalanced by evidence that O’Malley signed invoices without any corporate indication and that all billings from Hill were sent to O’Malley individually and not to O’Malley, Inc.
All of the above is simply an indication that this was a case for the trier of fact, and it should not have been disposed of by holding that receipt of the checks gave notice as a matter of law.
O’Malley contends that K.S.A. 1990 Supp. 60-209 prevents Hill from raising agency issues at trial because O’Malley’s answer asserted the existence of his corporation and Hill failed to respond to that answer by a negative averment that O’Malley, Inc., was not a corporation. We do not agree. K.S.A. 1990 Supp. 60-209 does not apply under the facts of this case. In the instant matter, Hill sued O’Malley individually rather than suing O’Malley, Inc. O’Malley, Inc., was not a party to this lawsuit, and its existence is not in dispute. Hill was under no duty to file a response to O’Malley’s answer, nor, indeed, could it file such a response unless ordered to do so by the court. K.S.A. 60-207(a). Since the court ordered no reply to the answer, Hill had no duty to challenge by specific negative averment O’Malley Inc.’s corporate existence. We hold that Hill properly raised agency issues at trial.
We do not believe that the evidence in this case was such that the question of notice of O’Malley’s incorporation could be resolved as a matter of law.
Under Kansas law, a corporate director or officer cannot escape personal liability under a contract entered into with third persons on behalf of the corporation if the third person is unaware of the corporation’s existence and the directors or officers failed to disclose its existence. Lentz Plumbing Co. v. Fee, 235 Kan. 266, 271, 679 P.2d 736 (1984). It is clear that the corporate agent has the positive duty to disclose the fact of agency and the identity of the principal to the third party in order to escape personal liability on the contract. Bruce v. Smith, 204 Kan. 473, 476, 464 P.2d 224 (1970).
However, if the third party has actual notice of the agency and the identity of the principal from whatever source, the corporate agent will not be held personally liable for the corporate debt. “Where the other party has actual knowledge of the agency and the identity of the principal, the agent will be relieved from liability, whether he himself makes the disclosure or the other party acquires the knowledge from some other source.” 235 Kan. at 271; see 3 C.J.S., Agency § 369.
“ ‘Actual notice means, among other things, knowledge of facts and circumstances so pertinent in character as to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.’ ” Thomas, 200 Kan. at 587; Lane v. Courange, 187 Kan. 645, 648, 359 P.2d 1115 (1961). “’Notice’ means intelligence by whatever means communicated; information; knowledge.” Koehn v. Central National Ins. Co., 187 Kan. 192, 200, 354 P.2d 352 (1960).
There are a number of cases dealing with the question of whether receipt of a corporate check amounts to notice of incorporation. In support of the trial court’s conclusion, O’Malley cites Johnston v. Biehl, 7 Wash. App. 757, 502 P.2d 1027 (1972), rev. denied 81 Wash. 2d 1010 (1973). This, according to our research, is the only decision of a sister state reaching this particular conclusion and we designate it the “minority view.”
Our research reveals that the case law is overwhelmingly consistent in holding that the mere addition of the term “Inc.” or “Corp.” on company checks by itself does not constitute actual notice of incorporation to a third-party creditor who has dealt with the debtor in an individual or partnership capacity. See Northway Lanes v. Hackley Union Nat. Bank & Trust Co., 464 F.2d 855, 859 (6th Cir. 1972) (applying Michigan law); Conner v. Steel, Inc., 28 Colo. App. 1, 4-5, 470 P.2d 71 (1970); Taylor Oil Co. v. Giordano, 210 N.J. Super. 159, 165-66, 509 A.2d 269 (1986); Anderson, Clayton & Company, Inc. v. Swallows, 84 N.M. 486, 489-90, 505 P.2d 431 (1973); Howell v. Smith, 261 N.C. 256, 261-62, 134 S.E.2d 381 (1964); American Smelting & Refining Company v. Ridgway, 412 S.W.2d 675, 678 (Tex. Civ. App. 1967); Philipp Lithographing Co. v. Babich, 27 Wis. 2d 645, 649-50, 135 N.W.2d 343 (1965).
The rule in the cases cited above places the burden on the agent to disclose both the principal and the representative capacity, the rationale being that a third-party creditor, who has agreed to look to the individual for payment rather than some unknown and undisclosed principal, is entitled to rely on the personal liability of the individual to whom credit was extended. In Taylor Oil Co. v. Giordano, 210 N.J. Super. 159, the New Jersey court, at page 163, stated:
“ We are persuaded that the rule of continuing liability is commerically reasonable and jurisprudentially sound. It is evidently predicated on the perception that one seeking the broad immunity from personal liability afforded by incorporation should be obliged to give appropriate notice of incorporation to those of its creditors who have been induced to enter into business arrangements in reliance on the principal’s personal credit. We are satisfied that as a matter of commercial necessity, the principal cannot be permitted unilaterally to defeat the expectations of the creditor by the simple expedient of an unnoticed, self-insulating incorporation.”
In rejecting the debtor’s argument that receipt of corporate checks in payment of the debtor’s account gave the creditor actual notice of the incorporation, the court went on to say:
“As a matter of public policy and commercial reality, a trade creditor should not be burdened with the duty of continually monitoring its customers’ business organization. Rather, the business entity seeking the benefits of incorporation should be required to provide notice to its trade creditors of the status change.” Taylor Oil Co., 210 N.J. Super. at 166.
We consider the cases cited above to be the majority rule in the United States. We adopt the majority rule as reflected by the cases immediately cited above and find that rule preferable to the holding in Johnston because the majority rule protects the expectation interests of creditors and places the burden of adequate notice of the change in status squarely upon the party seeking to invoke the benefits of incorporation. The majority view is also consistent with Kansas cases, such as Lentz Plumbing Co. and Bruce, which require disclosure of both the agency relationship and the identity of the principal in order for an agent to escape personal liability. Although a check bearing the name of the corporation presumably would satisfy the identity of the prin cipal requirement, the nature of the agency relationship is not disclosed by an individual’s signature.
We hold that the trial court erred in holding that, as a matter of law, receipt of the checks bearing the words “O’Malley Plumbing, Inc.” provided sufficient notice of the corporate status to Hill & Co. While those checks are not proof of notice as a matter of law, they remain evidence to be considered, along with the other evidence, by the trier of fact. The factual question is whether O’Malley sufficiently disclosed his agency relationship and the identity of his principal in his dealings with Hill after the business was incorporated.
We reverse and remand for a new trial on the issues noted in this opinion.
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Gernon, J.:
Gerald W. Mogren appeals from the district court’s decision affirming the Employment Security Board of Review’s finding that Mogren was disqualified from receiving unemployment benefits during the summer months between school terms.
Mogren worked as a substitute teacher in Wichita Unified School District 259. Mogren began his substitute teaching in November of 1988 and continued substituting through the end of the 1989 school term.
Mogren had previously applied for a full-time teaching position with U.S.D. 259 but was not offered a contract because he did not yet have a license to teach in Kansas, although he was licensed in Indiana.
In early June 1989, Mogren filed a claim for unemployment insurance benefits. In filling out the application for benefits, Mogren checked the box stating “lack of work” under the heading titled “reason for leaving.” He indicated his last day of work was May 19, 1989.
U.S.D. 259 disputed Mogren’s indicated reason for leaving and stated that he was not terminated but was simply between school terms. The district indicated it was seeking written assurances as to Mogren’s availability for the next school term and expected to have him return to the same work at the beginning of the new school term in August of 1989.
The Kansas Department of Human Resources denied unemployment benefits, stating that Mogren was “disqualified for the period between academic years or terms” because he had a reasonable assurance of work in the same capacity for the upcoming term. The referee reversed the examiner’s decision and found that Mogren’s “registration for substitute teaching work does not assure him of any employment.” U.S.D. 259 then appealed the referee’s decision to the Kansas Employment Security Roard of Review, which set aside the referee’s decision and ordered Mogren to pay back any benefits he had received.
The Sedgwick County District Court received the next appeal in the matter and determined that the issue was whether a substitute teacher is entitled to unemployment benefits during the summer months between the spring and fall terms of school. The district court concluded that K.S.A. 44-706(k) excludes an employee of an educational institution in any capacity from unemployment benefits “during an established and customary vacation” so long as the employee has a reasonable assurance that he will perform the same or similar services in the upcoming school year as he performed in the past school year. Mogren appeals to this court.
The relevant subsection of the statute in question, K.S.A. 1989 Supp. 44-706, reads as follows:
“An individual shall be disqualified for benefits:
“(i) For any week of unemployment on the basis of service in an instructional, research or principal administrative capacity for an educational institution as defined in subsection (v) of K.S.A. 44-703 and amendments thereto, if such week begins during the period between two successive academic years or terms or, when an agreement provides instead for a similar period between two regular but not successive terms during such period or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual performs such services in the first of such academic years or terms and there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.”
The issue of law presented in this case is whether Mogren, as a substitute teacher, is disqualified from receiving benefits during the period between academic years or terms because he has a “reasonable assurance” of performing “such services” in the following fall school year or term. This is an issue of first impression in Kansas.
Each of the disqualifications listed in the statute is mandated by a provision of the Internal Revenue Code as a condition to Kansas employers receiving a credit against the Federal Unemployment Excise Tax for their contributions to the Kansas Unemployment Fund. See 26 U.S.C. § 3302(a)(1) (1988). The Kansas disqualification provisions for employees of educational institutions are virtually verbatim reproductions of those listed at 26 U.S.C. § 3304(a)(6)(A)(i), (ii), and (iii) (1988).
The purpose of the disqualification statute is to protect state and federal unemployment compensation funds by distinguishing between teachers and school employees who are truly unemployed and those who have advance notice of seasonal layoffs and are not in the same economic situation as those finding themselves unpredictably out of work. See Paynes v. Detroit Bd. of Ed., 150 Mich. App. 358, 368, 388 N.W.2d 358 (1986).
The vast majority of cases interpreting the federal statute, and state laws patterned after it, hold that substitute teachers with a written or oral agreement to substitute during the upcoming fall term are disqualified from receiving unemployment benefits during the summer months because they have a reasonable assurance of returning to work in the same capacity. See Denver Pub. Schools v. Indus. Com’n, Etc., 644 P.2d 83, 84-85 (Colo. App. 1982); Davis v. District of Columbia, 481 A.2d 128, 131 (D.C. 1984); Indianapolis Public Schools v. Review Bd., 487 N.E.2d 1343, 1344-455 (Ind. App. 1986); Ykovchick v. Public Schools of Minneapolis, 312 Minn. 139, 142, 251 N.W.2d 626 (1977); Slominski v. Employment Div., 77 Or. App. 142, 147, 711 P.2d 215 (1985); Louderback v. Unempl. Comp. Bd. of Rev. et al., 48 Pa. Commw. 501, 505, 409 A.2d 1198 (1980); Gilbert v. Dept. Employment Security, 139 Vt. 24, 25, 421 A.2d 1295 (1980); Jennings v. Employment Security, 34 Wash. App. 592, 598-99, 663 P.2d 849 (1983).
Mogren argues that the district court erred by focusing on the assurance he was given rather than on a comparison of the services to be performed in the past and upcoming school years. His position is that, since he had no assurance of performing any services, he cannot be disqualified from receiving unemployment benefit's. We disagree.
The Board recognized in its order that substitute teaching does not guarantee any specific quantity of work but found Mogren had a reasonable assurance of performing “such services in the second of such academic years” as he performed in the first. The district court adopted this rationale, as do we.
The question then becomes one of whether Mogren had a reasonable assurance of performing services in any capacity for an educational institution for the fall 1989-90 school term.
It is unquestioned that Mogren agreed to substitute teach for the fall term and the district agreed to accept his services. Not only did he orally agree to substitute for the fall term, but he returned a postcard sent to him by the district indicating he would be available to substitute any day of the week after July 5, 1989. We conclude that he had a reasonable assurance of performing services in his capacity as a substitute teacher in the second academic year and would, thus, be disqualified from receiving unemployment benefits during the period between academic years.
This conclusion is in harmony with several other jurisdictions which have addressed the issue of what constitutes a reasonable assurance under statutes virtually identical to ours.
The Michigan Court of Appeals in Paynes stated that the “serv ice in any such capacity” language in the Michigan statute referred to service in any of the three capacities to which the statute applies and held that an assurance of returning to work in an identical capacity is not required, but the economic terms and conditions must be reasonably similar to those in the preceding year. See 150 Mich. App. at 372-73.
In Preziosi v. Dept. of Emp. Sec., Bd. of Rev., 529 A.2d 133 (R.I. 1987), the court held the reasonable assurance requirement, as it relates to substitute teachers, may be satisfied “simply by notice of the fact that the school department may have openings for substitute teachers and that the particular teacher may be called for such work if he-or she is willing.” 529 A.2d at 137.
Most jurisdictions hold that an oral or written agreement to return and perform services in the upcoming fall term in the same capacity as during the preceding spring term is sufficient to cqnstitute reasonable assurance. See Garrison v. Dept. of Economic Sec., 156 Ariz. App. 167, 171, 750 P.2d 1370 (1988); Riekse v. Grand Rapids Sch., 144 Mich. App. 790, 792, 376 N.W.2d 194 (1985); Schoenfeld v. Board of Review, 163 N.J. Super. 584, 587, 395 A.2d 528 (1978), cert. denied 79 N.J. 492 (1979); Preziosi, 529 A.2d at 137.
Even though the district court relied upon the wrong subsection of the statute in reaching its conclusion, its decision will be affirmed. “The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason. [Citation omitted.]” Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989).
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Briscoe, C.J.:
Defendant Marvin McNett appeals the district court’s reimposition of fines upon remand (No. 62,465, unpublished opinion filed July 7, 1989), as well as the court’s refusal to modify his sentence to follow SRDC’s recommendations.
McNett was convicted of four counts of sale of cocaine (K.S.A. 1989 Supp. 65-4127a), one count of possession of cocaine (K.S.A. 1989 Supp. 65-4127a), one count of possession of marijuana with intent to sell (K.S.A. 1989 Supp. 65-4127b[b][3]), and possession of drug paraphernalia (K.S.A. 65-4152[a][2]). These crimes were committed in December 1986 and January 1987. He was sentenced to a controlling term of 20 to 40 years’ imprisonment and fined a total of $30,000. McNett appealed to this court, arguing the district court abused its discretion in the sentences and fines imposed. This court upheld the sentences imposed, but vacated imposition of the fines and remanded for redetermination of the fines in accordance with K.S.A. 21-4607.
As regards the remand for redetermination of the fines, our opinion stated:
“K.S.A. 21-4607 provides:
‘(2) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment . . . unless:
‘(a) The defendant has derived a pecuniary gain from the crime; or ‘(b) the court is of the opinion that a fine is adapted to deterrence of the crime involved or to the correction of the offender.
‘(3) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.’
The Supreme Court has recently construed this statute as follows:
‘The statute requires and we hold that where the defendant is convicted of a felony or a misdemeanor and is sentenced to imprisonment either in the county jail or in the custody of the secretary of corrections and a fine is to be imposed, the judge must make specific findings pursuant to 21-4607(2) before imposing a fine. The judge must also state on the record that he or she has taken into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose, as required by 21-4607(3).’ State v. McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988).
“In this case, these specific findings were not made. Accordingly, the fines imposed must be vacated and this case is remanded for the redetermination of fines in accordance with K.S.A. 21-4607.”
On remand, the district court found McNett profited from the crimes and reimposed the fines of $30,000. McNett also filed a motion to modify sentence with the district court. In response to the motion, the district court modified the sentences to run concurrently rather than consecutively, making the controlling term 10 to 20 years’ imprisonment. The court refused to place McNett on probation, although McNett argued probation was recommended in the SRDC report.
McNett contends the district court erred in reimposing fines totalling $30,000 without first making the findings specified in 21-4607. The district court found McNett “dealt in a lot of cocaine or at least a lot of dollar’s worth” and noted McNett had no present ability to pay the fine, but found he would eventually be placed on parole and could then work and “pay the fine at that time.” McNett claims these findings are insufficient to satisfy the mandatory requirements of 21-4607 and State v. McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988).
As stated in our prior opinion in this case, K.S.A. 21-4607 has been construed to require the district court to make specific findings on the record pursuant to subsections (2) and (3) prior to imposing a fine. State v. McGlothlin, 242 Kan. at 441.
As regards 21-4607(2)(a), McNett argues there is no evidence that he derived a pecuniary gain from the crimes. We disagree. At the conclusion of the hearing, the district court stated: “[Y]ou in fact did deal in a lot of dollar’s worth of cocaine, tens of thousands of dollar’s worth.” There is evidence to support this finding. McNett testified he began selling drugs to support his salvage business. He admitted for about six months he met his weekly payroll of $1,500 to $2,000 from drug sales. He admitted receiving somewhere between $39,000 and $52,000 from drug sales. It is irrelevant that he did not keep those funds for himself but instead paid his salvage business employees.
The district court is also required to consider the defendant’s financial resources and the burden the fine will impose upon the defendant prior to assessing a fine. K.S.A. 21-4607(3). Here, the court stated: “I understand you don’t have the ability to pay that now at a dollar and a half a day or whatever it is you earn at KSIR. However, eventually you will be placed on parole, and you will be able to go to work and then you can pay the fine at that time.” McNett argues the statements are insufficient because subsection (3) implies that there be a reasonable correlation between the amount of the fine and the defendant’s present ability to pay rather than his future ability to pay. He argues a fine which exceeds a defendant’s present ability to pay constitutes an abuse of discretion.
We disagree with McNett’s assertion that subsection (3) contemplates only a defendant’s present ability to pay. The statute states: “In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant.” Had the legislature intended consideration of only present ability to pay, there would be no provision for determining a “method of payment.” That phrase implies the court can consider the defendant’s present and future financial resources; otherwise, all fines would be due and payable immediately upon imposition. Federal courts construing similar guidelines have so held. See U.S. v. Walker, 900 F.2d 1201, 1206 (8th Cir. 1990); United States v. Seminole, 882 F.2d 441, 443 (9th Cir. 1989). Further, K.S.A. 1990 Supp. 21-4603(2) authorizes the court to order the payment of a fine in installments, lending further support to the proposition that the court can consider future ability to pay. A fine which exceeds the defendant’s present ability to pay does not constitute an abuse of discretion as long as the fine does not exceed the ability to pay in time.
The district court realized McNett had no assets and no present ability to pay the fine. The evidence supports this conclusion. However, the court went on to find McNett would be able to pay the $30,000 in fines after his release on parole. There is no evidence to support this conclusion.
McNett earns $1.05 per day in prison and, upon his release, wants to reestablish his salvage business. When released, McNett will be a middle-aged exconvict with a GED, who has been self-employed most of his adult life in the salvage business. Undoubtedly, his prospects for employment will be dim as will his prospects for business loans. McNett originally joined his father’s salvage business and together they went bankrupt in 1983. McNett reaffirmed the debts of the business and attempted to continue the business on his own, but the business faltered. McNett turned to selling drugs to support the salvage business. The business property has since been foreclosed. The record does not indicate that McNett has any financial resources. The record is devoid of any evidence that McNett will ever be financially able to pay fines in the amount of $30,000.
The test of whether the district court abused its discretion is whether no reasonable person would agree with the district court. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990). Here, there is no basis for a reasonable person to agree with the district court because there is no evidence to support the decision to impose $30,000 in fines. The district court abused its discretion in assessing fines of $30,000 without first addressing McNett’s financial resources and the burden payment of $30,000 in fines would impose, as is required by 21-4607(3). By this conclusion, we are not stating McNett will not have the future ability to pay a fine of some amount. He is an able-bodied man and will be able to obtain some type of employment upon his release. We only question the imposition of fines in the amount of $30,000 based upon the record before us.
McNett also contends the district court erred in not granting his motion for modification of sentence following the SRDC recommendation, as required by K.S.A. 1989 Supp. 21-4603(3)(a). This statute does not apply to McNett’s motion to modify sentence. K.S.A. 1989 Supp. 21-4603(3) became effective July 1, 1989, and does not apply to sentences imposed for crimes committed before that date. See State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991). McNett committed the crimes at issue in 1986 and 1987.
Affirmed in part, vacated in part, and remanded with directions to reassign this case to a different judge for determination in accordance with K.S.A. 21-4607 of whether imposition of a fine is appropriate in this case and, if so, in what amount. | [
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Gernon, J.:
Farmers Insurance Company, Inc. (Farmers) appeals the award of attorney fees to the attorney for Alexandra M. Bardwell. Bardwell cross-appeals the district court’s holding that Farmers was not required to pay a judgment of $8,213.37 entered against it. Farmers was allowed to set off previously paid personal injury protection benefits (PIP) against the judgment due to a policy exclusion.
Highly summarized, the facts center on an automobile collision in which Michael S. Bardwell, a minor, was injured. Michael was a passenger in an automobile driven by Arthur Gatlin. Gatlin’s automobile was struck by an automobile driven by Carl Kester. Kester was intoxicated and was driving the wrong way on a divided highway. Michael was hospitalized with injuries he received in the collision.
Farmers paid Michael $8,213.37 in PIP benefits as a covered family member under a Farmers policy issued to Michael’s father.
Alexandra Bardwell, on behalf of her minor son, filed suit, naming Kester, Gatlin, and Farmers as defendants. Farmers, which also insured Gatlin, was named under the underinsured motorist coverage provisions in Michael’s father’s policy.
In a friendly suit, Bardwell agreed to settle for $38,213.37. Bardwell settled with Gatlin for $5,000, with Kester for $25,000, and with Farmers for $8,213.37. The settlement with Kester was for the upper limit of his policy.
Bardwell’s attorney then moved for attorney fees pursuant to K.S.A. 1990 Supp. 40-3113a(e). The trial court awarded attorney fees in the amount of $2,737.79, which was V3 of the $8,213.37 judgment against Farmers. The court also ruled that Farmers was not required to pay the judgment entered against it.
Farmers appeals the attorney fees ruling, and Bardwell appeals the ruling that Farmers was not required to pay the judgment amount. We affirm the ruling concerning payment of judgment, but reverse the attorney fees holding.
Payment of Judgment
Our ruling regarding the payment of the judgment is based upon our reading of the insurance policy involved and the uninsured motorist statute.
The Farmers policy in question contained an endorsement provision identified as 90-0404, 8-88J 1st Edition, which provided in pertinent part:
‘‘Under Part II — Uninsured Motorist, Other Insurance, Item 5 is added as follows:
“5. Any amount payable under the coverage shall be reduced by all sums payable for the same damages under any Personal Injury Protection.”
K.S.A. 1990 Supp. 40-284(e) sets forth a limited number of exclusions and limitations which insurance carriers are authorized to include as uninsured/underinsured policy provisions. Unauthorized policy provisions which seek to condition, limit, or dilute unqualified underinsured motorist coverage are void and unenforceable. See Stewart v. Capps, 247 Kan. 549, 555-56, 802 P.2d 1226 (1990). Farmers submits that the setoff provision in its endorsement was authorized by K.S.A. 1990 Supp. 40-284(e)(6), which states: “Any insurer may provide for the exclusion or limitation of coverage: ... (6) to the extent that personal injury protection benefits apply.”
Bardwell does not contend that the contract setoff provision was not authorized. Rather, she asserts that the setoff provision did not apply because of its specific language. Bardwell asserts that the provision is an exclusion which was prepared by the insurer and must be strictly construed against Farmers. Further, Bardwell maintains that the contract only allows for a setoff of PIP benefits which are “payable.” Bardwell argues that, since the PIP benefits here had already been paid, they were not “payable” within the strict meaning of the language and the setoff provision did not apply. We must, therefore, look to the policy to see if any ambiguity exists.
“The general rule that insurance policies are to be construed in favor of the insured and against the insurance company arises only if there exists a rational basis for construing the policy itself. ‘That is, the contract must contain provisions or language of doubtful, ambiguous or conflicting meaning, as gathered from a natural interpretation of its language. [Citations omitted.]’ ” Anderson v. Nationwide Life Ins. Co., 6 Kan. App. 2d 163, 165, 627 P.2d 344, rev. denied 229 Kan. 669 (1981).
If, after examining the entire policy, there is no uncertainty about its meaning, the policy must be enforced as written. Penalosa Co-op Exchange v. Farmland Mut. Ins. Co., 14 Kan. App. 2d 321, 323, 789 P.2d 1196 (1990). In undertaking the analysis to determine if ambiguity exists, the test is not what the insurer intends the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean. Anderson, 6 Kan. App. 2d at 166.
“Payable” is defined in Black’s Law Dictionary 1128 (6th ed. rev. 1990) as:
“Capable of being paid; suitable to be paid; admitting or demanding payment; justly due; legally enforceable. A sum of money is said to be payable when a person is under an obligation to pay it. Payable may therefore signify an obligation to pay at a future time, but, when used without qualification, term normally means that the debt is payable at once, as opposed to ‘owing.’ ”
Two other statutory provisions must be considered in order to bring this issue into focus. (1) Under K.S.A. 40-3110(b), PIP benefits are overdue if not paid within 30 days of notice of a covered loss. In the real world, there would seldom be any substantial amount still “payable” at the time a judgment is entered. (2) K.S.A. 1990 Supp. 40-284(e)(6) does not distinguish between paid and payable. Rather, this statute, which authorizes the contract provision here, allows a setoff when PIP benefits “apply.”
The construction and effect of insurance contracts are questions of law to be determined by the court. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 177, 660 P.2d 1374 (1983). The rules of construction favoring the insured are merely rules to aid in determining the intent of the parties. Penalosa Co-op, 14 Kan. App. 2d at 324. The court, in determining the intent of the parties, must also favor reasonable rather than unreasonable interpretations and avoid results which vitiate the purpose or reduce the terms of the contract. Horinek, 233 Kan. at 180.
We find, as did the trial court, that the only reasonable construction of the language in question is that the parties intended to reduce underinsured motorist coverage benefits by the amount of all benefits that eventually became payable prior to judgment. To hold otherwise would be to allow a duplication of payments.
Attorney Fees
The court relied on K.S.A. 1990 Supp. 40-3113a as the statutory authority for the award of attorney fees against Farmers.
K.S.A. 1990 Supp. 40-3113a(a) provides that, when a tortfeasor causes an injury for which PIP benefits are payable, the injured party has the right to pursue a cause of action against the tortfeasor. K.S.A. 1990 Supp. 40-3113a(b) acts to subrogate the PIP insurer to any damages recovered from the tortfeasor “to the extent of duplicative personal injury protection benefits provided to date of such recovery” and creates an automatic lien on the recovered damages. “The purpose of K.S.A. 40-3113a(b) is to prevent double recovery.” Hall v. State Farm Mut. Auto. Ins. Co., 8 Kan. App. 2d 475, 481, 661 P.2d 402, rev. denied 233 Kan. 1091 (1983).
The previous statute, K.S.A. 40-3113 (Weeks), contained no provision providing for attorney fees. In Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977), the Supreme Court found that, under K.S.A. 40-3113, the PIP carrier was entitled to full reimbursement out of the insureds’ recovery, for all PIP benefits paid, without reduction for any part of the attorney fees. “The effect of Easom was to give the PIP carrier a free ride whenever the insured proceeded against a third party.” Nitchals v. Williams, 225 Kan. 285, 288, 590 P.2d 582 (1979).
In response to the court’s interpretation of K.S.A. 40-3113 in Easom, the 1977 legislature repealed K.S.A. 1975 Supp. 40-3113 and, in its place, enacted K.S.A. 1977 Supp. 40-3113a. Nitchals v. Williams, 225 Kan. at 287-88. A subsection of the new statute, now K.S.A. 1990 Supp. 3113a(e), was established to require the PIP insurer to pay a proportionate share of the attorney fees incurred by the insured in obtaining a judgment or settlement against a third-party tortfeasor. See Nitchals, 225 Kan. at 289.
K.S.A. 1990 Supp. 40-3113a(e) provides: “Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, such person’s dependents or personal representatives in the amounts determined by the court.”
Farmers contends the $8,213.37 judgment, out of which the award of attorney fees was made, involved a strictly contractual obligation between Farmers and the Bardwells. Farmers argues this obligation was not based on a judgment against either tortfeasor and did not involve a subrogation lien against any judg ment, so K.S.A. 1990 Supp. 40-3113a never came into play. We agree.
The trial court concluded that the contract provision allowing Farmers a setoff to the extent of PIP benefits already paid was the same as subrogation and, therefore, subject to the attorney fee provisions of K.S.A. 1990 Supp. 40-3113a.
Black’s Law Dictionary 1427 (6th ed. rev. 1990) defines “subrogation” as “[t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities.”
The insurer may recover PIP benefits it has paid the insured, out of any judgment the insured obtains against the tortfeasor under K.S.A. 1990 Supp. 40-3113a. That statute simply does not apply to the facts here. The setoff here arose under the terms of the contract and not by a subrogation lien. We find no right of subrogation in the contract.
Here, the judgment against Farmers was not a judgment against a tortfeasor. The setoff of PIP benefits was wholly between the insurer and the insured. No subrogation was involved. Therefore, the provisions of K.S.A. 1990 Supp. 40-3113a should never have been considered as applicable.
Whether Farmers might have an enforceable subrogation lien against Bardwell’s recovery from the tortfeasors and, therefore, be entitled to attorney fees pursuant to K.S.A. 1990 Supp. 40-3113a(e) has not been raised directly, but might be suggested by the facts and our reading of the applicable statute.
We find that the court erred in assessing attorney fees under these facts.
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Rees, J.:
Upon K.S.A. 60-254(b) certification, Central Life Assurance Co. and Sun Savings Association appeal from a district court determination that liens against the Greystone South Office Plaza complex asserted by the general contractor, J. Walters Construction Co., and several subcontractors, have priority over mortgages against the complex held by Central and Sun. Finding no reversible error, we affirm.
Central Life and Sun complain that Walters Construction’s lien statement was improperly verified, several of the lien statements are illegible and contain impermissibly broad property descriptions, and certain lien statements contain deficient statements of the materials and labor provided. Further, they argue the trial court erred in computing the amount due Joseph Walters under a lien interest assignment by Walters Construction to him. They complain that the trial court erred in awarding prejudgment interest when ordering enforcement of the liens. Finally, they assert the court erred in ruling that all the mechanics’ liens, including those of the subcontractors, relate back to the date Walters Construction began work on the project and therefore are superior to the mortgages held by Central Life and Sun.
Our standard of review of findings of fact and conclusions of law is settled:
“ Where the trial court has made findings of fact and conclusions of law, the function of [the appellate] court ... is to determine whether the find ings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. [Citations omitted.] Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted. ] Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
Our review of conclusions of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). In addition, when, as here, the appeal involves review of documentary evidence considered by the trial court, the following applies:
“ ‘Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, ... on appellate review [we have] as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.’ [Citation omitted.]” Bell v. Tilton, 234 Kan. 461, 468, 674 P.2d 468 (1983).
Finally, because this case involves application of Kansas’ mechanic’s lien statutes, it is to be borne in mind that requirements for the lien to come into existence must be strictly met, but once the lien has attached mechanic’s lien provisions are liberally construed. Kansas Lumber Co. v. Wang, 12 Kan. App. 2d 20, 22, 733 P.2d 1266 (1987).
Provided they meet the filing requirements of K.S.A. 60-1102, under K.S.A. 60-1101 contractors have the right to a lien on property for services rendered.
The requirements of K.S.A. 60-1102 are stated as follows:
“(a) Filing. Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file with the clerk of the district court of the county in which property is located, within four (4) months after the date material, equipment or supplies, used or consumed was last furnished or last labor performed under the contract a verified statement showing:
“(1) The name of the owner,
“(2) the name of the claimant,
“(3) a description of the real property,
“(4) a reasonably itemized statement and the amount of the claim, but if the amount of the claim is evidenced by a written instrument, or if a promissory note has been given for the same, a copy thereof may be attached to the claim in lieu of the itemized statement.”
We held in Kansas Lumber Co. v. Wang, 12 Kan. App. 2d at 22:
“Although the mechanic’s hen provisions are liberally construed once the hen has been shown to have attached, the requirements for the hen to come into existence must be strictly met. [Citations omitted.] Included within these requirements is the specification that the hen statement be ‘verified.’ A verification has been held to mean an affidavit attached to the statement swearing to the truth of the matters set forth. [Citation omitted.] . . . The verification must be absolute [citation omitted] and the lack of a verification in the statement filed necessarily defeats the hen. [Citation omitted.]”
In the present case, the trial court made the following findings:
“12. The mechanic’s hen statement filed by [Walters Construction] on 17 March 1986 was signed on the front of the hen in the following manner: ‘Dennis Stanchik for J. Walters Construction’.
“13. The verification statement of the mechanic’s lien filed by [Walters Construction] was signed by Dennis Stanchik and read as follows:
“ ‘Dennis Stanchik being first duly sworn on his oath states that the above and foregoing statement is true and correct and the amount therein claimed is justly due the claimant.’
“14. At the time of the filing of the mechanic’s lien statement by [Walters Construction], Dennis Stanchik was the attorney at law for [Walters Construction] and was instructed by the President of [Walters Construction] to sign, verify and file the hen statement.
“15. Prior to the filing of the lien statement, Joseph R. Walters [Walters Construction’s president] explained all of the matters referred to in the mechanic’s lien statement filed by [Walters Construction] to Dennis Stanchik and allowed Dennis Stanchik to examine the corporate records to verify the accuracy of the matters contained in the lien statement.”
The trial court concluded Walters Construction’s mechanic’s lien statement was “in full compliance with the provisions of K.S.A. 60-1101 et seq. and is therefore valid and enforceable in all respects.”
Mechanic’s lien statement verification has been an issue in a number of Kansas cases. In Dorman v. Crozier, 14 Kan. 224, 225 (1875), there appears this verification text and Supreme Court response:
"W. J. Bound, of lawful age, and the agent of Uriah Dorman, a non-resident of the county of Miami, being by me first duly sworn, deposeth and says, that he is the agent of Uriah Dorman, and the facts as above set forth are true and correct according to the best of his knowledge and belief.”
The Supreme Court held:
“An affidavit made by an agent of another verifying a statement of a claim filed . . . [under] the mechanic’s lien law . . . for the purpose of procuring a mechanic’s lien on certain real estate, should be sworn to positively. [Citation omitted.] An affidavit for such a purpose, made by such an agent, stating that ‘the facts as above set forth are true and correct, according to the best of his [the agent’s] knowledge and belief,’ without showing that he had any knowledge upon the subject, is not sufficient.” 14 Kan. at 227.
In Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 692 P.2d 397 (1984), the language of the verification at issue was this:
That he is the claimant in the above and foregoing Mechanics Lien; that he has read the above and foregoing lien and swears that the statements and allegations contained therein along with the attached Exhibit “A" are true and correct to the best of his knowledge and belief.’ ”
In Lewis, we held that qualified verifications are not sufficient to satisfy K.S.A. 60-1102 and that only an absolute verification will do. 10 Kan. App. 2d at 102.
Again, the verification now at issue reads: “Dennis J. Stanchik being first duly sworn, on his oath states that the above and foregoing statement is true and correct and that the amount therein claimed is justly due the Claimant.” This verification is not qualified as were the verifications in Dorman and Lewis. It is, instead, absolute. We are satisfied that Stanchik’s verification meets the tests of Dorman and Lewis, as well as that of Kansas Lumber Co. v. Wang, 12 Kan. App. 2d at 25, where this appears:
“ When a verification is not qualified by any suggestion that the executor has limited knowledge of the true circumstances, there is no requirement to specifically dispel that possibility. If the contents of the statement are sworn to under oath, they are declared true absolutely. The attestation of knowledge sufficient to state the truth is implicit in the execution of a document under an unqualified oath.”
Central Life and Sun complain the verification is ineffective because Stanchik did not indicate his authority to act on behalf of the corporate claimant. Providing guidance is Trane Co. v. Bakkalapulo, 234 Kan. 348, 672 P.2d 586 (1983). There, the lien statement was signed by one Charles R. Wilson, who identified himself on that document as an attorney for the corporate claimant. After recitation that he was duly sworn, Wilson’s affidavit stated “’the above and foregoing statement is true and correct and that the amount therein claimed is justly due the Claimant.’ ” 234 Kan. at 350. The Supreme Court ruled:
“When Charles R. Wilson verified the mechanic’s lien statement presently in issue, the effect of his verification was to swear to the truth of the matter contained in the body of the lien statement, including his representative capacity. . . . Where the effect of the verification is to incorporate by express reference each of the allegations referred to in the attached statement, and to swear to the accuracy of those allegations, it is redundant to require the affiant to restate his representative capacity in the affidavit where it already appears in the statement being verified.” 234 Kan. at 352.
In the case before us, Stanchik’s subscription was in these words: “Dennis Stanchik for J. Walters Construction.” (Emphasis added.) This indicated his representative capacity. Then, after reciting that he was under oath, Stanchik stated “the above and foregoing statement is true and correct and that the amount therein claimed is justly due the Claimant.” This language is identical to that used in Trane. As the Trane verification served as a verification of the affiant’s representative capacity indicated in the lien statement, the verification here likewise serves as a verification of Stanchik’s representative capacity as indicated in the lien statement.
The next question raised is whether Stanchik adequately indicated his representative capacity in the lien statement. “A corporate lien claimant . . . cannot as a corporation either sign a lien statement or verify one. Both statement and verification must be signed and executed by some individual acting for and on behalf of the corporation.” Trane, 234 Kan. at 351. Stanchik did not indicate that he signed the statement as corporate counsel, as did Wilson in Trane. 234 Kan. at 350. We know of no requirement that only corporate counsel sign lien statements. Stanchik clearly showed he was signing as an agent of the corporation by using the “for J. Walters Construction” language. It is said in Trane, 234 Kan. at 351, that “[a]n agent of the claimant may verify a lien statement.”
We are satisfied that Stanchik’s signature to the lien statement was appropriate and that his representative capacity was satisfac torily recited and verified. Stanchik’s representative role was adequately shown.
Relying upon Sutherland Lumber Co. v. Due, 212 Kan. 658, 512 P.2d 525 (1973), Central Life and Sun challenge the property description included in the mechanic’s lien statements at issue here. They assert that the description should enable “a person intimately familiar with the location ... by reading the legal description, [to] identify Phase III to the exclusion of the rest of the project.” The property description Sutherland held to be deficient read “ ‘[0]ne bam and the surrounding tract of land belonging to Mr. and Mrs. L. E. Due of Rural Route 1, Centerville, Kansas.’ ” 212 Kan. at 660. In fact, the Dues owned four tracts of land in three different locations. 212 Kan. at 661. In the case before us, the liens described a single tract of land on which there were multiple constmction projects. Given the difference in facts, Sutherland is not particularly helpful here.
The facts in Confinement Specialists, Inc. v. Schlatter, 6 Kan. App. 2d 1, 7, 626 P.2d 223, rev. denied 229 Kan. 669 (1981), are more analogous to our case. In Confinement Specialists, we were asked to determine whether, under the mechanic’s lien statute, a lien attached to “the entire tract of land owned by the defendants or is limited to that area of the land required for the reasonable use and occupation of the improved structure. ” 6 Kan. App. 2d at 4. There, the owners of a quarter-section had a building to house hogs they raised constructed in the northeast part of the quarter; the owners resided in the southwest quarter. When the owners defaulted on payments to creditors, mechanics’ liens were filed describing the entire quarter. 6 Kan. App. 2d at 2. The owners argued, and the trial court agreed, the Hens could only attach to the portion of the property benefited by the improvement. 6 Kan. App. 2d at 3. We reversed, holding the liens attached to the entire quarter. 6 Kan. App. 2d at 7.
In this case, Central Life and Sun argue mechanics’ liens must identify only that portion of a tract benefited by an improvement, rather than the entire tract, to be effective. We are not persuaded. The argument is contrary to Confinement Specialists.
Central Life and Sun also argue the property descriptions in a number of the lien statements filed are invalid because they are illegible. The trial court found the descriptions legible. Upon our examination of the documents involved, we find that, although it is difficult to read them, the descriptions can be read. They are not illegible. We find no fatal flaw.
It is complained that the lien statements filed by J. Walters Construction, Airtech Engineering, Allied Tile, and Sound Control Systems are invalid because they do not provide sufficient information to allow the property owner to determine if work has been completed or if the charges were fair. In response it is argued that the attachments to the lien statements provided ample basis to determine whether work was completed and charges were fair, and that the statutory requirements are overstated. The trial court found the various lien statements all included “detailed itemization of accounts] showing all amounts due and owing and detailing the work and materials for which payment was owed” and met statutory requirements.
The development of the mechanic’s lien law and its requirements for the statement of the labor and materials furnished are discussed in DaMac Drilling, Inc. v. Shoemake, 11 Kan. App. 2d 38, 43-44, 713 P.2d 480 (1986):
“In Holtzen v. Dunn, 176 Kan. 206, 269 P.2d 1042 (1954), a statement showing the contract price for the subcontractor’s work was $1,600, that extra colored fixtures were furnished at the request of the owner amounting to $157.10 and that $693.84 had been paid such that a balance of $1,063.26 was claimed, was found to be a sufficient itemization under the statute. The court relied on the following rule laid down in Lumber Co. v. McCurley, 84 Kan. 751, Syl. ¶ 2, 115 Pac. 590 (1911):
“ ‘A subcontractor’s lien statement for material furnished and labor performed under a completed contract for a stipulated gross price is sufficiently itemized which gives the contract price, and extra items stated separately.’
“This rule was originally adopted to distinguish the case in which the work of the lienor was contracted for at a stipulated price but was not completed when the lien statement was filed. In such a case, mere recitation of the contract price, extras and payments made was held not to be itemization of the claim ‘as nearly as practicable.’ [Citation omitted.] . . .
“In Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 571, 620 P.2d 1167 (1980), this court construed the meaning of the current requirement for a general mechanic’s lien that the lien statement include a ‘reasonably itemized statement.’ The court concluded that this language stated a less strict standard than that of the old statute which required itemization ‘as nearly as practicable.’ However, the cases cited above indicate that neither standard is too demanding when the lienor’s labor or materials were provided under a contract with the owner which stipulated a gross price for the job.”
The record in this case reveals that the contested lien statements include either copies of signed contracts between the parties or other evidence that all work was done under and according to negotiated gross price contracts between the respective parties. A “not too demanding” standard is appropriate for application in testing the adequacy of the itemization of labor and materials furnished. DaMac Drilling, 11 Kan. App. 2d at 43-44. Since the contractors and subcontractors went well beyond merely giving the contract price, and extra items stated separately (Lumber Co. v. McCurley, 84 Kan. 751, Syl. ¶ 2), we are satisfied that the trial court did not err in holding the statements of labor and material were sufficient.
A memorandum to the assignment of the Walters Construction lien to Joseph Walters states:
“ The parties agree that the assignment of mechanics lien rights pursuant to the document attached hereto is not to include any amounts of overhead and profit of J. Walters Construction Co., Inc. and includes rights only of subcontractors of J. Walters Construction Co., Inc.”
That portion of the agreement plainly reveals that Joseph Walters was assigned the $416,275.84 mechanic’s lien, but had no right to collect any portion of that attributable to Walters Construction’s profit or overhead.
At trial, Joseph Walters testified that, despite the amount claimed in the mechanic’s lien, the total balance due Walters Construction Company was $454,791.11, of which $65,311.41 was attributable to overhead and profit. The court awarded $389,479.70 to Joseph Walters, apparently by subtracting the smaller figure above from the larger. Central Life and Sun argue that in doing so the court allowed the lien total to be increased in violation of K.S.A. 60-1105. That contention fails because the effect of the trial court’s determination was to treat $26,796.14 of the original $416,275.84 mechanic’s lien as profit and overhead for Waiters Construction, which could not be claimed by Joseph Walters under the terms of the lien assignment. The trial court did not impermissibly allow an increase in the lien amount.
Central Life and Sun complain that the lienholders could not recover prejudgment interest because their claims were not liquidated until trial. Interest is an inappropriate remedy when the claim is unliquidated. Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, 251, 662 P.2d 1195 (1983); Scott v. Strickland, 10 Kan. App. 2d 14, 24, 691 P.2d 45 (1984). Interest is an appropriate remedy when claims are liquidated although subject to setoff or counterclaims. Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 595-97, 455 P.2d 555 (1969).
In Phelps Dodge, materials were furnished to Alpha Construction under a contract with Phelps Dodge. Alpha failed to pay $292,684.22 and Phelps Dodge sued to collect the contract balance. Alpha counterclaimed for $184,416.08. The trial court awarded Phelps Dodge $136,392.71 plus $27,000 in interest. 203 Kan. at 592. On appeal, Alpha argued interest was inappropriate because Phelps Dodge’s claim remained unliquidated until trial. 203 Kan. at 595. The Supreme Court ruled Phelps Dodge’s claim was easily computed and became liquidated on the date it was due. The following rule was adopted:
“ ‘Ordinarily, where the amount of a demand is sufficiently certain to justify the allowance of interest thereon, the existence of a set-off, counterclaim, or cross claim which is unliquidated will not prevent the recovery of interest on the balance of the demand found due from the time it became due.’ ” 203 Kan. at 595.
See also Arrowhead Constr. Co. v. Essex Corp., 233 Kan. at 251 (when the amount past due on a contract and the date it was due are certain, the creditor is entitled to interest from the date due).
The trial court found Walters Construction fully performed its contract with Greystone and the amount due under that contract could be calculated on the date the mechanic’s lien statement was filed. The material facts here are indistinguishable from those in Phelps Dodge. Central Life and Sun’s complaints that Joseph Walters stated differing amounts as due for work on the project are misdirected. Admittedly, Joseph Walters attempted to increase the amount of Walter Construction’s initial mechanic’s lien. Nonetheless, Joseph Walters’ attempts to increase the amount recoverable do not make the initial, valid, and enforceable lien claim less certain. It was filed for $416,275.84, and there is no dispute that at least that amount was due Walters Construction when the lien statement was filed.
Central Life and Sun also argue the assignment of the lien from Walters Construction to Joseph Walters created uncertainty about how much Joseph Walters was entitled to; therefore, the amount due was unliquidated and interest could not accrue. While appellants would have this court focus attention on the alleged uncertainty about the amount due Joseph Walters, the real issue here is whether the amount due under the lien itself was liquidated. Joseph Walters’ share of the lien amount is immaterial to the question whether the lien amount was liquidated. The trial court did not err in holding the mechanic’s lien amount was liquidated when the lien statement was filed.
Central Life and Sun argue Airtech’s $54,942 lien claim was unliquidated because Greystone claimed the firm did not properly complete its contract and eventually stipulated to a $700 offset with Airtech. The trial court’s order on the parties’ stipulation shows the court held:
“IT IS FURTHER AGREED and the Court finds that the balance due before consideration of attorney’s fees and interest, in the amount of $54,242.00, shall be considered to be liquidated damages and that sum is not rendered to be unliquidated by virtue of the stipulated offset in the amount of $700.00 for purposes of determining whether Airtech Engineering, Inc. is entitled to interest.”
The court granted the parties ten days to object to the order; none did. Because there was no objection, this finding is not subject to challenge on appeal. Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 368, 598 P.2d 188 (1979).
The journal entry memorializing judgment in Jerry Ward’s favor shows the parties stipulated to damages of $17,119.30 rather than the $19,711.79 claimed in the mechanic’s lien statement. Central Life and Sun argue that fact proves Jerry Ward’s claim was unliquidated until the district court entered judgment.
Jerry Ward’s lien claim was based on the original $151,755 contract, and the lien statement specifically itemized payments due and payments received. Under Phelps Dodge and Arrowhead Constr., the claim was liquidated when the lien statement was filed. Any reduction or setoff or other claim that would reduce the actual payment due Jerry Ward was for “an offsetting claim arising out of the same contract or transaction.” Phelps Dodge, 203 Kan. 591, Syl. ¶ 4.
Central Life and Sun also argue that several lienholders were improperly awarded prejudgment interest when their lien statements or petitions for relief failed to include prayers for interest.
First, the record displays no basis for the claim that no interest was sought in the lien statements or petitions for relief. Walters Construction, Baker Smith, and National Concrete had contracts that required interest to be paid on late payments, and they attached those contracts to their mechanic’s lien statements. Further, their petitions specifically request interest or any relief the court deems just and equitable. Sound Control Systems and J. Henges sought interest in their pleadings.
Second, as previously discussed, mechanic’s lienholders are entitled to interest on the amount due provided the amount due is liquidated. Arrowhead Constr., 233 Kan. at 251; Scott v. Strickland, 10 Kan. App. 2d at 24. Further, K.S.A. 16-201 and 16-205 provide guidance. K.S.A. 16-201 states in part:
“Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; . . . from the day of liquidating the account . . . .”
K.S.A. 16-205 states in part:
“(a) When a rate of interest or charges is specified in any contract, that rate shall continue until full payment is made, and any judgment rendered on any such contract shall bear the same rate of interest or charges mentioned in the contract . . . .”
All of the claims in this case were liquidated on the dates the lien statements were filed. Further, interest or just and equitable relief was sought in the cross- and counterclaims. The trial court did not err in awarding prejudgment interest.
Central Life and Sun also argue that, by seeking interest, defendants are improperly amending their lien statements in violation of K.S.A. 60-1105(b). This argument is mistaken. The lien statements state the amount due at the time each statement was filed. K.S.A. 60-1102. The debt becomes liquidated when the lien statement is filed. Interest accrues from that time. K.S.A. 16-201. K.S.A. 60-1105(b) prohibits amendment of a lien statement to increase the amount due as of the date of filing the lien statement. That statute does not concern interest accruing from the date of filing.
Central Life and Sun next argue Airtech Engineering provided no labor or materials at the construction site until long after the mortgages had attached and, therefore, the trial court erred in ruling Airtech’s lien related back to April 9, 1985, the date Walters Construction began work on the site. The trial court, however, did not decide the priority issue on the facts relating to Airtech’s involvement at the construction site. Instead, it held Walters Construction’s mechanic’s lien had first priority and all other timely filed mechanics’ liens would attach as of the date Walters Construction’s lien attached.
Central Life and Sun also argue the trial court erred by allowing the liens of subcontractors to relate back to April 9, 1985. Specifically, they contend the court erred in ruling subcontractors’ mechanics’ liens filed under K.S.A. 1990 Supp. 60-1103 attach under the rules governing contractor’s mechanics’ liens in K.S.A. 60-1101.
The rules governing statutory construction are well known:
“ The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citations omitted.]" State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
In addition to the rule of statutory construction, Kansas courts have provided some general principles governing interpretation of mechanic’s lien statutes that are helpful here. “The general purpose of the mechanic’s lien statute is to protect labor and materialmen. It is when the principal contractor is bankrupt or unable to pay that labor and materialmen need the protection of the statute.” Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 375, 521 P.2d 272 (1974). Further, as mentioned, “[o]nce a lien has attached, our mechanic’s lien statutes are to be liberally construed.” Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, Syl. ¶ 2, 549 P.2d 1376 (1976).
The specific language at issue here is found in K.S.A. 60-1101 and K.S.A. 1990 Supp. 60-1103. K.S.A. 1990 Supp. 60-1103 states in part:
“(a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor ....’’
K.S.A. 60-1101 states:
“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same. The hen shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the lien. When two or more such contracts are entered into applicable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied lien of any of them.”
The question raised here is whether in K.S.A. 1990 Supp. 60-1103 the legislature meant for the phrase “in the same manner and to the same extent” to allow subcontractors’ liens to be preferred to the date of the earliest unsatisfied lien on the property.
Prior to the revision of our code of civil procedure, the mechanic’s lien statutes at issue were found in G.S. 1949, 60-1401, and G.S. 1949, 60-1403 (1961 Supp.). G.S. 1949, 60-1403 (1961 Supp.) said in part:
“Any person who shall furnish any such material, or perform such labor by himself, with horse or team, or horses and driver, or auto truck or auto truck and driver, under a subcontract with the contractor, or as an artisan or day laborer in the employ of such contractor, may obtain a lien upon such land from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material and labor . . . .” (Emphasis added.)
Under G.S. 1949, 60-1401, a general contractor’s “lien for labor performed or material furnished in the construction or erection of improvements attaches from the date work or construction commences.” Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 202, 204, 336 P.2d 463 (1959). Thus, reading G.S. 1949, 60-1403 (1961 Supp.) in light of G.S. 1949, 60-1401, a subcontractor’s lien would attach “from the same time ... as the original contractor,” or the subcontractor’s lien attached from the date the general contractor began “work or construction.”
In 1963 the legislature modified the code of civil procedure.
“ The Advisory Committee notes state the new code of civil procedure made no major change in the right and none in the procedure pertaining to liens for improvement of real property, except the volume of language in G.S. 1949, 60-1401, 60-1402, G.S. 1961 Supp. 60-1403 and G.S. 1949, 60-1404 was reduced for purposes of clarity.” Toler v. Satterthwaite, 200 Kan. 103, 105, 434 P.2d 814 (1967).
See 5 Vernon’s Kansas C. Civ. Proc. §§ 60-1101, 60-1103 (1967).
The first version of K.S.A. 60-1103 stated in part:
“Any subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the hen, under an agreement with the contractor, or a subcontractor of the contractor, may obtain a Hen for the amount due in the same manner and to the same extent as the original contractor .... (Emphasis added.)” K.S.A. 60-1103 (Corrick).
The language in the emphasized phrase is identical to that in K.S.A. 1990 Supp. 60-1103. Since the Supreme Court determined the legislature meant the 1964 statute to have the same effect as its predecessor, it follows that the legislature intended the same effect for the two phrases:
1. “. . . from the same time, in the same manner, and to the same extent as the original contractor . . . .” G.S. 1949, 60-1403 (1961 Supp.); and,
2. “. . . in the same manner and to the same extent as the original contractor . . . .” K.S.A. 60-1103 (Corrick) and K.S.A. 1990 Supp. 60-1103.
We conclude the legislature must have intended subcontractors’ mechanics’ liens to attach at the time the general contractor began work or construction.
There is an additional basis in the statute to support this conclusion. K.S.A. 60-1109 requires: “If the proceeds of the [foreclosure] sale be insufficient to pay all the claimants, then the court shall order them to be paid in proportion to the amount due each.”
If the legislature did not intend all mechanics’ liens, contractors’ and subcontractors’ liens alike, to attach at the same time, then the only other reasonable interpretation would be that liens attach at the time each contractor or subcontractor began work on the project. Under that interpretation, there would be no reason to pay lien claimants “in proportion to the amount due each” under K.S.A. 60-1109, because their liens would attach on different determinable dates, and payment could be made on the basis of chronological priority. Under that system, the first on the job would be the first paid, and the last on the job would be assuming the greatest risk of forfeiture. Clearly, this kind of inequality was not what the legislature intended; therefore, the only rational conclusion is the legislature intended all subcontractors’ mechanics’ liens to attach when the general contractor’s first work on a construction project began.
The subcontractors in this case cite the final sentence in K.S.A. 60-1101: “When two or more such contracts are entered into applicable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied lien of any of them.”
Their argument is that, since subcontractors are entitled to mechanics’ liens “in the same manner and to the same extent as the original contractor,” K.S.A. 1990 Supp. 60-1103, then subcontractors’ mechanics’ liens should be “similarly preferred to the date of the earliest unsatisfied lien.” K.S.A. 60-1101. Since the effect of this interpretation is identical to the interpretation reached above after considering the statute’s history, we find the subcontractors’ argument is meritorious.
Because we do not find error in regard to Central Life’s and Sun’s complaints challenging the validity of the liens filed by Wálters Construction and all subcontractors, and because their complaints regarding the trial court’s determinations on priority of all liens do not establish error, there is no ground for reversal of the trial court. The appellants have not borne their burden to affirmatively establish error.
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Walker, J.:
Plaintiff Michael Kvassay, d/b/a Kvassay Exotic Food, appeals the trial court’s finding that a liquidated damages clause was unenforceable and from the court’s finding that damages for lost profits were not recoverable. Kvassay contends these damages occurred when Great American Foods, Inc., (Great American) breached a contract for the purchase of baklava. Great American and Albert and Deana Murray, principals of Great American, cross-appeal the trial court’s ruling that Kvassay could pierce Great American’s corporate veil to collect damages awarded at trial.
On February 22, 1984, Kvassay, who had been an independent insurance adjuster, contracted to sell 24,000 cases of baklava to Great American at $19.00 per case. Under the contract, the sales were to occur over a one-year period and Great American was to be Kvassay’s only customer. The contract included a clause which provided: “If Buyer refuses to accept or repudiates delivery of the goods sold to him, under this Agreement, Seller shall be entitled to damages, at the rate of $5.00 per case, for each case remaining to be delivered under this Contract.”
Problems arose early in this contractual relationship with checks issued by Great American being dishonored for insufficient funds. Frequently one of the Murrays issued a personal check for the amount due. After producing approximately 3,000 cases, Kvassay stopped producing the baklava because the Murrays refused to purchase any more of the product.
The Murrays formed Sunshine Ceramics, Inc., in 1974. The company was inactive during the late 1970’s and early 1980’s and failed to make a number of required corporate filings. In August 1984, the name of the corporation was changed to Great American Foods, Inc. The Murrays also operated fast food restaurants in Wichita under the name of Great American Subs, Inc., and controlled an entity named Murray Investments. The Murrays conducted business for all of their entities and personal business from one street location in Wichita. In August 1984, the Murrays opened a bank account in the name of Great American Distributors, Inc., although no incorporation papers were ever filed. The Murrays frequently paid the bills of their various entities with personal checks and often wrote checks to themselves on corporate accounts. In addition, there were times when one entity would pay the Murrays’ personal expenses or the expense of other Murray entities.
In April 1985, Kvassay filed suit for damages arising from the collapse of his baklava baking business. Great American counterclaimed and, in May 1988, the trial court sustained a defense motion to bifurcate the case. The court conducted bench hearings on the validity of the liquidated damages clause and the question of piercing the corporate veil. The trial court ruled that liquidated damages could not be recovered and that Great American’s corporate veil could be pierced by Kvassay. The court also held “as a matter of law” that Kvassay would not be able to recover damages for lost profits in the action because they were too “speculative and conjectural.” Kvassay attacked this latter ruling through a motion to modify, arguing a ruling on the issue was premature. The motion to modify was denied, although the court did announce that Kvassay could attempt to prove loss of profits at the jury trial.
A jury trial on the issues of breach of contract and damages was held in February 1990. On the second day of trial, before any evidence on the question of loss of profits had been presented, the trial court ruled that lost profits were not recoverable and barred Kvassay from presenting any evidence on that question. The jury returned verdicts in Kvassay’s favor and awarded him a total of $35,673.99.
Kvassay first attacks the trial court’s ruling that the amount of liquidated damages sought by him was unreasonable and therefore the liquidated damages clause was unenforceable.
Kvassay claimed $105,000 in losses under the liquidated damages clause of the contract, representing $5 per case for the approximately 21,000 cases of baklava which he was not able to deliver. The trial court determined that Kvassay’s use of expected profits to formulate liquidated damages was improper because the business enterprise lacked duration, permanency, and recognition. The court then compared Kvassay’s previous yearly income (about $20,000) with the claim for liquidated damages ($105,000) and found “the disparity becomes so great as to make the clause unenforceable. ”
Since the contract involved the sale of goods between merchants, the Uniform Commercial Code governs. See K.S.A. 84-2-102. “The Code does not change the pre-Code rule that the question of the propriety of liquidated damages is a question of law for the court.” 4 Anderson, Uniform Commercial Code § 2-718:6, p. 572 (3d ed. 1983). Thus, this court’s scope of review of the trial court’s ruling is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Liquidated damages clauses in sales contracts are governed by K.S.A. 84-2-718, which reads in part:
“(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. ”
To date, the appellate courts have not interpreted this section of the UCC in light of facts similar to those presented in this case. In ruling on this issue, the trial court relied on rules governing liquidated damages as expressed in U.S.D. No. 315 v. DeWerff, 6 Kan. App. 2d 77, 626 P.2d 1206 (1981). DeWerff, however, involved a teacher’s breach of an employment contract and was not governed by the UCC. Thus, the rules expressed in that case should be given no effect if they differ from the rules expressed in 84-2-718.
In DeWerff, this court held a “stipulation for damages upon a future breach of contract is valid as a liquidated damages clause if the set amount is determined to be reasonable and the amount of damages is difficult to ascertain.” 6 Kan. App. 2d at 78. This is clearly a two-step test: Damages must be reasonable and they must be difficult to ascertain. Under the UCC, however, reasonableness is the only test. K.S.A. 84-2-718. K.S.A. 84-2-718 provides three criteria by which to measure reasonableness of liquidated damages clauses: (1) anticipated or actual harm caused by breach; (2) difficulty of proving loss; and (3) difficulty of obtaining an adequate remedy.
In its ruling, the trial court found the liquidated damages clause was unreasonable in light of Kvassay’s income before he entered into the manufacturing contract with Great American. There is no basis in 84-2-718 for contrasting income under a previous unrelated employment arrangement with liquidated damages sought under a manufacturing contract. Indeed, the traditional goal of the law in cases where a buyer breaches a manufacturing contract is to place the seller “’in the same position he would have occupied if the vendee had performed his contract.’ ” Outcault Adv. Co. v. Citizens Nat’l Bank, 118 Kan. 328, 330-31, 234 Pac. 988 (1925). Thus, liquidated damages under the contract in this case must be measured against the anticipated or actual loss under the baklava contract as required by 84-2-718. The trial court erred in using Kvassay’s previous income as a yardstick.
Was the trial court correct when it invalidated the liquidated damages clause, notwithstanding the use of an incorrect test? If so, we must uphold the decision even though the trial court relied on a wrong ground or assigned an erroneous reason for its decision. Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985). To answer this question, we must look closer at the first criteria for reasonableness under 84-2-718, anticipated or actual harm done by the breach.
Kvassay produced evidence of anticipated damages at the bench trial showing that, before the contract was signed between Kvassay and Great American, Kvassay’s accountant had calculated the baklava production costs. The resulting figure showed that, if each case sold for $19, Kvassay would earn a net profit of $3.55 per case after paying himself for time and labor. If he did not pay himself, the projected profit was $4.29 per case. Nevertheless, the parties set the liquidated damages figure at $5 per case. In comparing the anticipated damages of $3.55 per case in lost net profit with the liquidated damages of $5 per case, it is evident that Kvassay would collect $1.45 per case or about 41 percent over projected profits if Great American breached the contract. If the $4.29 profit figure is used, a $5 liquidated damages award would allow Kvassay to collect 71 cents per case or about I6V2 percent over projected profits if Great American breached the contract.
An examination of these pre-contract comparisons alone might well lead to the conclusion that the $5 liquidated damages clause is unreasonable because enforcing it would result in a windfall for Kvassay and serve as a penalty for Great American. A term fixing unreasonably large liquidated damages is void as a penalty under 84-2-718.
A better measure of the validity of the liquidated damages clause in this case would be obtained if the actual lost profits caused by the breach were compared to the $5 per case amount set by the clause. However, no attempt was made by Kvassay during the bench trial to prove actual profits or actual costs of production. Thus, the trial court could not compare the $5 liquidated damages clause in the contract with the actual profits lost by the breach. It was not until the jury trial that Kvassay attempted to prove his actual profits lost as part of his damages. Given the trial court’s ruling that lost profits were not recoverable and could not be presented to the jury, it is questionable whether the court would have permitted evidence concerning lost profits at the bench trial.
The trial court utilized an impermissible factor to issue its ruling on the liquidated damages clause and the correct statutory factors were not directly addressed. We reverse the trial court on this issue and remand for further consideration of the reasonableness of the liquidated damages clause in light of the three criteria set out in 84-2-718 and our ruling on recoverability of lost profits which follows.
Kvassay contends the trial court erred in ruling damages for lost profits were not recoverable, arguing under K.S.A. 84-2-608 he should have been permitted to collect lost profits under his contract with Great American. As noted, the trial court made this ruling prior to hearing any evidence on the issue of lost profits.
In ruling that Kvassay could not recover lost profits, the court held:
1. The UCC and case law governing lost profits do not apply to “loss of future profits for uncompleted goods under a contract.”
2. When the rules governing lost profits do apply, “you have to have an established business, one which meets those other criteria, sufficient length of time that future profits can be reasonably assured by reason of the past history of the business to have been realized or realizable under the contract.”
3. “[A]s a matter of law . . . this bakery business was not in existence a sufficient length of time that the calculation of future profits is sufficiently reliable to be a basis for the recovery of damages.”
As previously discussed, damages in this case are governed by the UCC and the trial court erred in finding the UCC did not apply. The general rule governing damages is expressed in K.S.A. 84-1-106(1): “The remedies provided by this act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” The specific section governing lost profits is K.S.A. 84-2-708, which states:
“(1) Subject to subsection (2) and to the provisions of this article with respect to proof of market price (section 84-2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this article (section 84-2-710), but less expenses saved in consequence of the buyer’s breach.
“(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (section 84-2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.”
A plain reading of this statute leads to the conclusion that section (2) applies in this case because there was no market for Kvassay’s baklava after Great American breached the contract. However, this determination does not resolve the question of the trial court’s ruling that lost profits cannot be obtained for goods not yet produced. While no Kansas court has interpreted 84-2-708(2), one authoritative treatise on the UCC provides guidance. “When the seller is entitled to recover for loss of profits, he may recover for the profit on that part of the order of goods which has not yet been manufactured by him.” 4 Anderson, Uniform Commercial Code § 2-708:22, p. 395.
Setting aside for a moment the question of Kvassay’s business experience, Kansas common law is in accord with Anderson on the question of recoverability of loss of profits on goods not yet manufactured:
“ ‘In considering the question what damages may be recovered by the vendor in case of the breach by the vendee of a contract for the purchase and sale of articles to be manufactured, it must be borne in mind that the aim of the law is to place the vendor in the same position he would have occupied if the vendee had performed his contract. If this object is to be attained, it is evident that the vendor must be permitted to recover the profits which he would have made if there had been no breach of the contract.’ ” Outcault, 118 Kan. at 330-31.
Outcault is cited favorably in the Kansas comment to 84-2-708. Thus, it is clear the trial court also erred in ruling profits were not obtainable for goods that had not been produced.
The next question in this analysis becomes whether a business must have been in existence for a “sufficient length of time that future profits can be reasonably assured by reason of the past history of the business to have been realized or realizable under the contract,” as found by the trial court. The official UCC comment to 84-2-708 states: “It is not necessary to a recovery of ‘profit’ to show a history of earnings, especially if a new venture is involved.” By this standard, Kvassay did not need to prove a record of profitability to claim lost profits under the UCC and the trial court erred in so ruling.
The closely related final question is whether the trial court erred in ruling “as a matter of law . . . this bakery business was not in existence a sufficient length of time that the calculation of future profits is sufficiently reliable to be a basis for the recovery of damages.” The role of the courts in determining the acceptability of proof of lost profits for new businesses has been discussed in Kansas. See Butler v. Westgate State Bank, 226 Kan. 581, 602 P.2d 1276 (1979); Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974); Outcault, 118 Kan. 328. Although none of these cases discusses lost profits for new businesses in light of the UCC, they are instructive. Vickers, 213 Kan. at 620, contains this comment;
“Unquestionably, a method of establishing a loss of profits with reasonable certainty is by showing a history of past profitability. Past profitability of a particular business is not, however, the only method of proving lost future profits. The evidence necessary in establishing lost future profits with reasonable certainty ‘must depend in a large measure upon the circumstances of the particular case. . . .’[Citation omitted.] Absolute certainty in proving loss of future profits is not required. [Citation omitted.] What is required is that the court or jury be guided by some rational standard. [Citations omitted.] As to evidentiary matters a court should approach each case in an individual and pragmatic manner, and require the claimant furnish the best available proof as to the amount of loss that the particular situation admits. [Citation omitted.] It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury. [Citation omitted. ]”
There is no reason the standard should be any different under the UCC section which specifically allows lost profits as damages (84-2-708) and which requires that remedies under the act be “liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” K.S.A. 84-1-106.
Lost profits may be recovered for new businesses if they can be proved with reasonable certainty. Butler, 226 Kan. at 585. Strict application of the certainty doctrine would place a new business at substantial disadvantage. To hold recovery is precluded as a matter of law merely because a business is newly established would encourage those contracting with such a business to breach their contracts. The law is not so deficient. Vickers, 213 Kan. at 620. When 84-1-106 and 84-2-708(2) are read in light of Vickers, it is clear that, when there has been a breach of contract with a new business, such business should be given an opportunity to prove its damages and to collect profits if the damages can be proved.
In this case, Kvassay attempted to present an ample basis on which to determine profits earned on the baklava produced under the contract. Uncontested evidence offered included:
1. Kvassay did not go into the bakery business until he had a contract with Great American requiring the purchase of 24,000 cases of baklava at $19 per case.
2. After spending about two months setting up his bakery, Kvassay produced baklava full time for about three months, although there were some temporary shut-downs due to cash flow problems.
3. Production was averaging about 100 cases daily, although a peak of 150 cases was reached.
4. 3,000 cases of the 24,000 contracted for were produced, or 12.5 percent of the contract.
5. Production staff was paid on a commission basis based on the number of trays of baklava prepared at a rate of $1.75-$2.00 per tray.
6. The recipe for each 14-inch X 18-inch tray of baklava called for two pounds of phyllo dough, one pound of margarine, one teaspoon of cloves, one teaspoon of cinnamon, one pound of walnuts, and two pounds of honey.
7. Each tray produced- ten 8-ounce pieces of baklava while each case delivered held twelve 8-ounce pieces of baklava.
8. There were two full-time hourly employees and additional help was hired on an hourly basis for maintenance when needed.
In addition, before the court ruled that lost profits could not be proved, Kvassay attempted to offer receipts from suppliers to document his costs. The trial court never permitted those exhibits to be admitted. Further, after the court ruled that lost profits would not be allowed, Kvassay proffered the testimony of two accountants as to the profitability of his enterprise and the profit he would have earned under the contract with Great American. Of particular note was the testimony of Tom Dechant, C.P.A., who testified that, from an accounting standpoint, at least five percent of the baklava contract needed to be completed before profits could be determined with “reasonable certainty.” In this case, 12.5 percent of the contract had been completed.
Given the quantity of evidence offered to prove the profitability of Kvassay’s business, it is clear the trial court was premature in ruling, as a matter of law, that lost profits could not be proved. Kvassay should have been permitted to offer his evidence and meet his burden of proof on damages.
On cross-appeal, Great American contends the trial court was wrong in permitting its corporate veil to be pierced so the Murrays could be held personally responsible for the corporate debts. The crux of Great American’s argument is that no fraud or injustice was done to Kvassay and there is no “causal nexus” between Kvassay’s decision to enter into the contract and the corporate failings which came to light during the trial. Kvassay argues the evidence is compelling and overwhelmingly supports the trial court’s finding that the corporate entity involved operated as a “facade for the operations of the Murrays” and worked to Kvassay’s injustice “by inducing him to enter into the contract” at issue.
Each case involving disregard of the corporate entity must rest upon its special facts. Sampson v. Hunt, 233 Kan. 572, 579, 665 P.2d 743 (1983).
“Where the trial court has made findings of fact . . . the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence .... Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
Before examining the record to determine if there is sufficient competent evidence to support the trial court’s decision, it is helpful to understand when Kansas courts have determined that piercing the corporate veil is appropriate.
“We start with the basic premise that a corporation and its stockholders are presumed separate and distinct, whether the corporation has many stockholders or only one. Debts of a corporation are not the individual indebtedness of its stockholders. However, in an appropriate case the corporate form will be disregarded and the corporation and its stockholders may be treated as identical. [Citations omitted.] Power to pierce the corporate veil is to be exercised reluctantly and cautiously. [Citations omitted.]” Amoco Chemicals Corporation v. Bach, 222 Kan. 589, 593, 567 P.2d 1337 (1977).
“The doctrine of alter ego is used to impose liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business. Such liability arises from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards the corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation. [Citation omitted.]” Sampson, 233 Kan. at 579.
In determining whether disregarding the corporate entity is appropriate, eight factors have been considered:
“(1) undercapitalization of a one-man corporation, (2) failure to observe corporate formalities, (3) nonpayment of dividends, (4) siphoning of corporate funds by the dominant stockholder, (5) nonfunctioning of other officers or directors, (6) absence of corporate records, (7) the use of the corporation as a facade for operations of the dominant stockholder or stockholders, and (8) the use of the corporate entity in promoting injustice or fraud.” Sampson, 233 Kan. 572, Syl. ¶ 3.
The trial court made several factual findings which, when considered in light of the eight factors, provide sufficient foundation for disregarding the corporate entity.
1. Undercapitalization of the corporation.
The trial court found that, while the Murrays loaned approximately $250,000 to Great American from mid-1983 until the end of 1984, the infusions of cash were made on an “as needed” basis. Further, sometimes the loans were deposits in corporate accounts while at other times the Murrays simply paid corporate debts from their personal accounts. The record is filled with evidence to support these findings. An audit completed at the end of 1984 showed Great American’s total corporate funding included $15,000 in common stock and $21,728 in “[contributed capital in excess of par value.” In addition, the corporation held inventory valued at $160,371 and property and equipment valued at approximately $38,000. When $37,000 in original capital investment in Great American is viewed in light of the fact that Kvassay’s contract required that Great American pay $456,000 in one year and the Murrays only loaned the company funds when shortages occurred, it is clear there is substantial evidence in the record to support the conclusion that the corporation was “never capitalized, except on a haphazard and as needed basis.”
2. Failure to observe corporate formalities.
The trial court concluded the Murrays failed to observe corporate formalities, basing its decision in part on the absence of a number ^of required corporate records, as well as a complete failure to record most of the financial transactions between the Murrays and their various entities. Further, the court noted Great American failed to file annual corporate reports for 1983 and 1984 with the Secretary of State until October 1985. The court also noted that, while the Murrays started Great American Distributors to conduct the business of Great American Foods, there was never any effort to change Great American Foods’ corporate name or to register Great American Distributors. Since each of the findings is supported by evidence offered at trial and included in the record on appeal, there is substantial competent evidence to show Great American Foods and the Murrays failed to abide by general corporate formalities.
3. Nonpayment of dividends.
There is no evidence in the record that dividends were ever paid by Great American.
4. Siphoning of corporate funds by the dominant stockholder.
The trial court noted that no ledgers or journals of expenses paid or income received were maintained by Great American Foods or by Great American Subs and that accounting records for the firm were reconstructed on the basis of checks issued, without any accompanying invoices or receipts, making it impossible to determine what the corporate payments covered. The court did note that Great American paid health club dues for the Murrays. The Murrays received a number of payments from Great American but the court noted that, since no employment contracts existed between the Murrays and Great American, it was impossible to determine the reasonableness or basis of such payments. In addition, the trial court found that Deana Murray withdrew $6,000 on September 2, 1983, from Great American Foods, and Albert Murray withdrew $1,500 on September 24, 1984, from Great American Distributors. Albert testified that he and his wife frequently paid the bills of their various corporations with personal checks and often wrote themselves checks on corporate accounts. In addition, there were times when the corporations would pay the Murrays’ personal expenses or expenses of other Murray corporations. The trial court also noted that, on August 31, 1984, Great American Distributors obtained a line of credit, of which $25,000 was deposited in Great American Subs’ account. The same day, Great American Subs deposited $26,000 in a Great American Distributors’ account.
5. Nonfunctioning of other officers or directors.
This factor is not at issue here since there were no directors other than the Murrays.
6. Absence of corporate records.
The complete absence of a number of corporate records has already been discussed.
7. Use of corporation as facade for operations of dominant stockholders.
The trial court specifically found the Murrays used their various corporations as a facade to conduct their personal business. A number of factors already discussed, including the Murrays’ complete failure to keep corporate records or to abide by corporate formalities, combined with the history of unexplained transfers of funds, provide ample evidence on which the court could base its conclusion. In addition, it was undisputed at trial that the Murrays conducted business for all of their entities and personal business from one street address in Wichita.
8. Use of corporate entity in promoting injustice or fraud.
The trial court found the Murrays used the corporation as a facade for their own interests and, in doing so, “worked to the injustice of the plaintiff by inducing him to enter into the contract.” Great American focuses most of its argument that the corporate veil should not be pierced on this point, arguing specifically there must be proof that control of the corporation was used to commit fraud or to perpetrate a wrong and that there is no such proof.
Great American’s emphasis is misplaced. Injustice alone will support a disregard of the corporate entity. See Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 797, 473 P.2d 33 (1970). As discussed, there is ample evidence in the record to support the finding that the Murrays operated their corporations as alter egos, putting cash in when convenient and removing it when equally convenient. The Murrays conducted business with such unity of interest and ownership that the separate personalities of the cor porations and themselves no longer existed. See Poynter, 205 Kan. at 798.
In effect, it was the Murrays together with Great American who breached the contract with Kvassay. If that breach was considered an act of Great American alone, “an inequitable result would follow” because Kvassay would be unable to collect damages to which he is entitled. See Poynter, 205 Kan. at 798. While the power to pierce the corporate veil is to be exercised reluctantly and cautiously, the corporate entity can be disregarded if it is used to cover fraud or to work injustice, or if necessary to achieve equity. Service Iron Foundry, Inc. v. M.A. Bell Co., 2 Kan. App. 2d 662, 673, 588 P.2d 463 (1978).
Great American cites a number of cases from other states for the principle that a breach of contract is insufficient to establish the requisite injustice to allow piercing the corporate veil. A review of Kansas cases, however, clearly shows it is appropriate to pierce the veil to prevent injustice or to achieve equity and it does not matter what kind of action is involved. See Poynter, 205 Kan. at 798; Service Iron, 2 Kan. App. 2d at 673.
Great American is correct in its assertion that there is nothing in the record to support the finding that Kvassay relied on Great American’s corporate status in entering into the baklava contract. However, the injustice that would result in this case is sufficient to support a determination to pierce the corporate veil. Thus, the trial court’s determination was correct for the wrong reason. See Sutter Bros., 238 Kan. at 93.
The trial court’s decisions with respect to liquidated damages and lost profits are reversed and the case is remanded for a new trial on those issues. The trial court’s decision on piercing the corporate veil is affirmed. | [
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Lewis, J.:
This is an action for the breach of a third-party beneficiary agreement. The trial court sustained a motion to dismiss on the grounds that the petition failed to state a claim upon which relief could be granted. The trial court also dismissed the action as to the defendant Arturo G. Torres on jurisdictional grounds. The plaintiffs (Wallace Noel and his children Larry, Michael, and Cathy Noel) appeal both rulings. The defendants Pizza Management, Inc., (PMI) and Torres cross-appeal the refusal of the court to award attorney fees, and PMI cross-appeals the court’s decision that PMI is subject to Kansas jurisdiction.
After careful review, we reverse those rulings of the trial court adverse to the plaintiffs and remand.
There are basically three issues on this appeal, and we will approach and deal with each issue separately.
DID THE PETITION OF PLAINTIFFS STATE A CLAIM ON WHICH RELIEF COULD BE GRANTED?
The question before this court is whether the second amended petition states a claim for relief against PMI and Torres. In examining the petition, we note that there are three claims for relief set forth. The third claim seeks relief only from the defendant PepsiCo, Inc., (PepsiCo) which is no longer a party to this litigation. As a result, only the first two claims for relief remain relevant and will be considered in this opinion. The facts stated in the opinion are taken from allegations of the petition. The petition will be summarized where possible while the key paragraphs will be restated verbatim.
The petition alleges that all of the plaintiffs (Noels) are owners of common stock in PMI. Wallace Noel owns some 386,448 shares of common stock in PMI, while his children each own 2,500 shares in that corporation.
PMI is a Texas corporation, which has its principal office and place of business in San Antonio, Texas. The defendant Torres is a resident of Texas and the president, CEO, director, and majority stockholder of PMI. Both PMI and Torres are alleged to be transacting business in Kansas and to have subjected themselves to the jurisdiction of the Kansas courts.
Prior to February 1, 1977, Wallace Noel was the owner and operator of a number of Pizza Hut franchise restaurants and related franchise territories and locations. In the fall of 1976, Noel was approached by PMI with a proposal wherein he would sell his restaurants, locations, and franchise rights to PMI in exchange for PMI stock. In addition:
“[i]t was represented by PMI and Torres that the company and the shareholders of PMI held special contract rights granted by Pizza Hut which would permit PMI and its shareholders to register, make a public offering and sale of stock without any restrictions by Pizza Hut, notwithstanding any terms or limitations of the Pizza Hut franchise agreements.”
The agreement alleges specific breaches of contract, as are hereinafter set forth, and alleges that, by reason of those breaches of contract, the plaintiffs had been damaged in the amount of $5 to $11 million.
The petition alleges the following:
“11. Plaintiff refused to agree to transfer his Pizza Hut restaurants and franchise rights to PMI for several months until the representations as to the registration and public offering were confirmed. In 1976, Noel was provided with a copy of a signed contract between Pizza Hut, PMI and Torres (‘the 1976 agreement’) which contained the following provision:
“ ‘PMI may issue and/or sell or otherwise lawfully issue additional shares of its stock from time to time and the shareholders of PMI other than Torres may sell, assign or transfer their PMI shares without any restrictions imposed by Pizza Hut, and PMI may register its shares under the provisions of the Texas Securities Act, subject to the restriction that Torres agrees that at all times he will take any and all actions necessary to cause him to remain the record and beneficial owner of at least fifiy-one percent (51%) of the issued and outstanding shares of stock of PMI; provided, however, that in the event that the stock of PMI shall be sold in an underwritten public offering registered under the Securities Act of 1933, as amended, the foregoing restriction on ownership by Torres shall no longer apply, so long as Pizza Hut is given thirty (30) days prior written notice of such offering and approves the Prospectus and Registration Statement, and all amendments thereto, insofar as the same refers to Pizza Hut, its relationship to PMI and Pizza Hut’s registered trademarks and tradenames, which approval will not be unreasonably withheld. PMI and Torres agree that such stock will not be offered by use of the name “Pizza Hut” except to reference the fact that PMI is a franchisee of Pizza Hut.’
“Upon being satisfied that the written agreement, in the terms set out above, had been executed by the requisite parties (defendants Pizza Hut, PMI and Torres), Noel agreed to transfer his Pizza Hut franchise restaurants and the related franchise rights to PMI in exchange for shares of common stock on February 1, 1977.
“13. In 1981, Pizza Hut prepared a new form of franchise agreement titled Superseding Franchise Agreement, which all Pizza Hut franchisees were requested to sign. PMI executed the Superseding Franchise Agreement under date of July 20, 1981, but concurrently, there was prepared and executed a separate written agreement of even date titled Blanket Amendment To Superseding Franchise Agreement (‘Blanket Amendment’), which was executed by the parties to ratify, confirm and extend the rights of PMI and its shareholders to register, make a public offering and sell shares of stock in PMI without any restriction or interference from the franchisor, Pizza Hut, as provided in the 1976 agreement. These rights were expressed and confirmed in a paragraph identical to that set out in paragraph 11 of this Second Amended Petition.
“14. Plaintiffs are and were intended to be third-party beneficiaries of the 1976 agreement and the 1981 Blanket Amendment, insofar as they provided for and confirmed the unrestricted right of PMI and its shareholders to register and sell shares of PMI through an underwriting and public offering. Plaintiffs relied upon the agreements and were entitled to rely upon them and would not have entered into the 1977 transaction with PMI and would not have become shareholders in PMI absent the signed 1976 agreement.
“15. PMI and Torres are parties to the written agreements out of which plaintiffs’ claims for relief arise and are therefore proper parties to this action.
“16. At all times material, plaintiffs were not officers, directors, or employees of PMI and had no control over the business or affairs of PMI. Plaintiffs believed that the 1976 agreement and the 1981 Blanket Amendment were valid and enforceable contracts, made for their benefit as shareholders in PMI, and that those contracts would be honored and performed according to their terms.
“17. In the spring of 1986, PMI developed plans for a registration, underwriting and public offering of PMI stock and pursuant thereto negotiated a commitment from Shearson Lehman Brothers to serve as managing underwriter for the public offering of PMI stock. A prospectus and a registration statement were prepared and proper written notice was given to Pizza Hut of the proposed public offering.
“18. Defendants Torres, PMI and Pizza Hut, and each of them, as parties to the 1976 and 1981 Agreements, and defendants PepsiCo, as the parent corporation of PHI, owed plaintiffs a duty not to terminate, impair or modify the third-party beneficiary contracts by subsequent transactions or agreements. Plaintiffs materially changed their position in reliance upon the third-party beneficiary contract by transferring franchise locations and related rights to PMI in exchange for shares of common stock in PMI in reliance upon the the [sic] written agreement that PMI had the right to make a public offering and ’go public’ through a registration of its stock without restriction or interference from Pizza Hut. Plaintiffs also changed their position in reliance upon the contractual provision which vests in the shareholders of PMI the unrestricted right to transfer their shares of stock in PMI.
“19. Without the knowledge or consent of plaintiffs, defendants PMI, Torres and Pizza Hut entered into subsequent agreements and transactions, including but not limited to an exchange of franchise locations which some of the defendants now assert had the effect of terminating, impairing, modifying, or restricting the 1976 and 1981 agreements and the rights of plaintiffs thereunder. Defendant PepsiCo approved or consented to the subsequent agreements and transactions.
“20. The acts and conduct of defendants PMI, Torres, Pizza Hut, and PepsiCo, as alleged above, constitutes a breach of the third-party beneficiary obligations of the contracts and is an abridgement of plaintiffs’ rights thereunder such that defendants are jointly and severally liable to plaintiffs for breach of the third-party beneficiary contracts.
“21. At all times since the breach of contract by defendants, plaintiffs’ shares in PMI have had a realizable value of less than $2 per share. Plaintiffs are collectively the owners of 393,948 shares of stock in PMI and have therefore been damaged by the breach of contract, as alleged, in an amount between $5,500,000 and $11,000,000 in the loss of a market and market value for their shares of stock and have suffered substantial consequential loss and damage. The lull extent of plaintiffs’ loss and damage will be established by the proofs at trial.”
The second claim for relief in the plaintiffs’ petition incorporates all of the allegations of the first claim for relief and further alleges:
“22. Defendants knew or should have known, at the time of the transactions and agreements referred to in paragraphs 19 and 20 of this Petition, that it was the intention of Noel and the parties to the 1976 and the 1981 agreements that PMI and its shareholders should have and enjoy the un restricted right to make a public offering, accomplish a registration of stock in PMI, and sell their shares in the public market.
“23. The transactions and agreements executed by and between Pizza Hut, PMI, and Torres which some defendants claim has the effect of terminating, modifying, impairing or restricting the 1976 and 1981 agreements and plaintiffs’ rights thereunder, were executed by the respective parties without resolving or providing for what effect these transactions and agreements might have on the right of PMI and its shareholders to make a public offering, and thereby breached the duty owed to plaintiffs under the third-party beneficiary obligations of the 1976 and 1981 agreements.
“24. By their acts and silence, defendants led plaintiffs to believe that these later transactions and agreements would not adversely affect the right of PMI and its shareholders to make a public offering and sell shares of stock of PMI in the public market.
“25. Defendants, and each of them should be estopped from claiming, as against plaintiffs, that the unrestricted rights of PMI and its shareholders, as set forth in the 1976 and 1981 agreements, are modified, discharged, amended or restricted by any subsequent transactions or agreements entered into by and between defendants PMI, Torres and Pizza Hut.”
We note that the defendants Pizza Hut and PepsiCo are no longer parties to the action and the allegations against those defendants may be disregarded.
The question before this court is whether the allegations of the petition state a claim against the defendants PMI and Torres on which relief can be granted.
In approaching this issue, we note that, at the time the motion to dismiss was granted, there had been no discovery. We further note that there is nothing to indicate that factual matters outside the pleadings were presented to or considered by the court other than certain comments that were made by counsel. Under these circumstances, our Supreme Court has set forth the scope of review to be utilized. In Bruggeman v. Schimke, 239 Kan. 245, 247-48, 718 P.2d 635 (1986), the court stated:
“Our scope of review, where the trial court has sustained a motion to dismiss, is concisely defined in Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 620 P.2d 837 (1980):
“ ‘When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiffs petition. The motion in such case may be treated as the modem equivalent of a demurrer.’ Syl. ¶ 1.
“ ‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiffs favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’ Syl. ¶ 2.
“ ‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiffs description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the ■plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ Syl. ¶ 3.
“See also Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413-14, 479 P.2d 875 (1971).
“The court also stated in Knight:
“ ‘It is not necessary to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, Syl. ¶ 3, 520 P.2d 1197 (1974).’ 5 Kan. App. 2d at 475.”
In essence, we are required to assume that the facts alleged by the plaintiffs are true, and we are required to make any reasonable inferences to be drawn from those facts. In addition, it is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.
There are sound reasons for exercising judicial skepticism towards dismissal of a petition for failure to state a claim prior to the completion of discovery. We long ago abandoned the theory of fact pleading in favor of our present ‘notice’ type pleading. Indeed, as our Supreme Court stated in Monroe v. Darr, 214 Kan. 426, 429-30, 520 P.2d 1197 (1974):
“More broadly, we have held that a petition which alleged a cause of action upon any theory was sufficient to withstand a demurrer lodged against it [citation omitted]. With the advent of present notice-type pleading more illiberal construction should not be the order of the day and the foregoing rules should still prevail.”
Indeed, under our modern procedure, the petition does not intend and is not necessarily intended to govern the entire course of the lawsuit. The ultimate determination as to the legal issues and theories on which the action will be determined is the pretrial order. The declining importance of the allegations of a petition is set forth in Oller v. Kincheloe’s, Inc., 235 Kan. 440, 446-49, 681 P.2d 630 (1984):
“The following general principles have been established down through the years:
“(1) The need for technical pleading has vanished. We now require only a bare-bones pleading which outlines the nature of the claim. Since discovery in its broadest scope is available under the code of civil procedure, there is no need for technical pleadings. [Citations omitted.]
“(2) A petition which alleges a claim for relief upon any theory is sufficient to withstand a motion to dismiss lodged against it. In considering such a motion, dismissal should not be ordered merely because plaintiff s allegations do not support the legal theory upon which he intends to proceed, since the court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. [Citation omitted.]
“(3) It is not necessary to spell out a legal theory of relief so long as an opponent is apprised of the facts that entitle plaintiff to relief. [Citations omitted. ]
“(4) Under the Kansas Code of Civil Procedure, there is no requirement that pleadings state facts sufficient to constitute a cause of action. [Citation omitted.]
“(5) The spirit of our present rules of civil procedure permits a pleader to shift the theory of his case as the facts develop so long as he has fairly informed his opponent of the transaction or the aggregate of the operative facts involved in the litigation. [Citation omitted.1]
“(6) Under K.S.A. 60-208, the pleader may allege or make contradictory or alternative statements until he finds out which theory, if any, the facts support, and is permitted to shift the theory as the facts develop. [Citation omitted.] In an action for breach of implied warranty, a party may plead and proceed upon the theories of both contract and tort until the facts have been developed and the case is ready to be submitted to the trier of the facts. One seeking to recover for breach of an implied warranty must eventually elect a definite theory before final submission to the trier of the facts. [Citation omitted.]
“(10) The Kansas Code of Civil Procedure contemplates utilization of the rules for discovery and a pretrial conference to formulate the ultimate issues of both fact and law to be determined in the case. See K.S.A. 60-216 and Supreme Court Rule No. 140 (232 Kan. cxlviii). Under the Kansas procedure, a pretrial order made pursuant to K.S.A. 60-216 supersedes the pleadings and controls the subsequent course of an action unless modified by the court to prevent manifest injustice. A pretrial order which specifies the issues to be tried supersedes and replaces the pleadings. [Citation omitted.]'
“(11) Interrogatories under K.S.A. 60-233 may be of better service than definiteness and certainty in pleadings, as, unlike pleadings, answers to interrogatories must be made under oath and the answers may be used at trial by the interrogating party, subject to the rules of evidence. One purpose of this rule is to curtail the necessity of motions to make definite and certain. [Citation omitted.] Interrogatories that call for an opinion or contention that relates to the application of law to the facts [citation omitted] can be most helpful in narrowing and sharpening the issues, which is an important part of discovery. [Citation omitted.]
“Since Kansas adopted its code of civil procedure in 1964, the requirement that a plaintiff must plead a cause of action and a definite theory is no longer recognized in this state. As noted by Judge Wisdom in Thompson v. Allstate Insurance Company, 476 F.2d 746, 749 (5th Cir. 1973), ‘Ancestor worship in the form of ritualistic pleadings has no more disciples. The time when the slip of a sergeant’s quill pen could spell death for a plaintiffs cause of action is past. Under the Federal Rules of Civil Procedure, a complaint is not an anagramatic exercise in which the pleader must find just exactly the prescribed combination of words and phrases.’ ”
In our opinion, the dismissal of a petition for failure to state a claim prior to the utilization of discovery procedures is seldom warranted. The petition’s principal purpose is notice, and the ultimate theory on which the modem lawsuit is tried is shaped by the facts which are unveiled through the discovery process.
Our application of these mies to the instant matter causes us to conclude that the motion to dismiss in this case should not have been granted.
In essence, the petition alleges that Wallace Noel sold his business for stock in PMI based on the assurance and promise of PMI that he could sell his stock in the open market. Noel was well aware that the basic Pizza Hut franchise agreement forbade the sale of stock in the manner he had bargained for. As a result, he refused to sell until PMI could convince him that this right was guaranteed. In order to convince Noel that Pizza Hut would comply with PMI’s representations, PMI produced an agreement between itself and Pizza Hut, which made an exception to the general rule and which would permit the Noels to sell the PMI stock they would receive in the manner they desired. Noel then alleges that, after selling his business and receiving PMI stock therefor, PMI and Pizza Hut, without his knowledge or consent, entered into a subsequent agreement which abrogated plaintiffs’ right to sell the PMI stock publicly. The petition alleges or infers that PMI entered into this last agreement to gain a benefit for itself and, in so doing, sacrificed the benefits it secured to the plaintiffs under the 1976 agreement, which was relied upon by the plaintiffs. As we read the petition, it alleges that PMI and Torres were responsible for the breach of the third-party agreement in concert with Pizza Hut and PepsiCo.
The defendants argue that they had no duty which was owed to the plaintiffs under the third-party agreement. We disagree.
The trial court dismissed the petition largely because of the legal theory espoused by the plaintiffs. It is important to keep in mind that, under our modern rules, it is not necessary for the petition to allege or espouse any legal theory in order to state a claim. The purpose of the petition is to notify a defendant of the facts on which relief is sought. The development of these facts and the legal theory to which they may be appended is left to the discovery and pretrial procedures. While we believe the petition does state a claim for relief under a certain theory, we hasten to add that plaintiffs are not necessarily tied to that theory. As the matter develops, the precise theory may be shifted as the facts warrant.
The trial court apparently based its decision to dismiss on the theory that the promisee of a third-party beneficiary agreement may not be sued for causing its breach. In the journal entry dismissing the action, the court stated:
“3. In oral argument counsel for plaintiffs made clear that there is no claim being made against PMI and Torres for the alleged loss of a right to go public. The plaintiffs’ claim is that the 1976 and 1981 agreements granting unrestricted transfer of their shares has been negated by PMI and Torres without their consent. The plaintiffs make their claim as a third party beneficiary.
“5. The plaintiffs cite no Kansas case which gives them a cause of action against the promisee such as PMI. The plaintiffs’ cause of action, if any, is against the promisor. The claims against PMI and Torres are dismissed.”
It is difficult for this court to see the rationale in a conclusion that plaintiffs have not stated a claim when they contend that PMI and Torres have caused the breach of an agreement they entered into for plaintiffs’ benefit. If the plaintiffs are able to prove that such breach occurred, it appears clear that such proof would entitle plaintiffs to relief.
We would agree that there is no Kansas case which states that a third-party beneficiary of an agreement may sue the promisee of that agreement for its breach. The fact that no case exists does not mean that under all circumstances such an action is not maintainable in this state. It is almost universally recognized that a third-party beneficiary may sue for the breach of an agreement entered into for his benefit. The usual form of action is lodged against the promisor of that agreement. If, however, the promisee of the third-party agreement is responsible for the breach, jointly or alone, there is no legal theory that protects the promisee from liability for the breach.
Giving the most favorable interpretation to the petition of the plaintiffs, it alleges that, in order to obtain Noel’s property, PMI either entered into or produced an agreement with Pizza Hut that satisfied the demands that Noel was making prior to selling his property to PMI. The petition then alleges that PMI, in order to gain an advantage for itself, entered into a subsequent agreement with Pizza Hut which abrogated the agreement on which Noel relied. Although PMI may technically have been a promisee, the petition alleges it used the 1976 agreement to convince plaintiffs to sell their assets to it and, after that was accomplished, it caused the abrogation of that agreement by seeking out and entering into a subsequent agreement with Pizza Hut. We believe that proof of these allegations would entitle plaintiffs to a judgment against PMI. It is incorrect to assume that a promisee may not be the efficient cause of the breach of a third-party beneficiary contract. It would be an injustice to conclude that a promisee could gain an advantage by entering into a third-party beneficiary contract and then cause the breach or abrogate the terms of that contract with impunity.
The right of a beneficiary to sue the promisee of a third-party contract is recognized by other jurisdictions. The underpinning of the action is the existence of a duty owed the beneficiary by the promisee, which duty is violated by the breach.
The Restatement (Second) of Contracts § 310 (1979) recognizes the right to sue a promisee:
“(1) Where an intended beneficiary has an enforceable claim against the promisee, he can obtain a judgment or judgments against either the promisee or the promisor or both based on their respective duties to him. Satisfaction in whole or in part of either of these duties, or of a judgment thereon, satisfies to that extent the other duty or judgment, subject to the promisee’s right of subrogation.”
In Kraus v. Willow Park Public Golf Course, 73 Cal. App. 3d 354, 371, 140 Cal. Rptr. 744 (1977), the California court set forth the rule as follows:
“Moreover, a third party creditor beneficiary can sue either the promisor or the promisee or may join them and obtain judgment against both. (Dick v. Woolson (1951) 106 Cal. App. 2d 415, 419 [235 P.2d 119]; Eastin v. Roberts, Carpenter & Co. (1937) 19 Cal. App. 2d 567, 571 [66 P.2d 244]; Rest., Contracts (1932) § 141; Ferson, Contracts in Favor of Third Parties (1955) 6 Hastings L. J. 354, 369.) Maintenance of an action by a third-party beneficiary is not precluded by the fact that a suit or claim might be brought also against the one to whom the promise was made. (Johnson v. Holmes Tuttle Lincoln-Merc. (1958) 160 Cal. App. 2d 290, 297 [325 P.2d 193]). Although the creditor beneficiary may enforce the original obligation against either the promisor or the promisee or against both, he may not collect more than his due; satisfaction in whole or in part of either of these duties will operate to that extent as satisfaction of the liability of the other.”
Although these authorities cited may not be precisely on point factually, they do establish that a promisee may, under proper circumstances, be sued for a breach of duty owed a third party for whose benefit an agreement was created.
The plaintiffs argued before the trial court that it was a misnomer to label PMI and Torres as strictly promisees. They point out that the agreements, which Torres and PMI entered into with Pizza Hut, contained various promises and obligations by and between both parties. We suggest that proper discovery in this lawsuit will reveal the true status of PMI in the agreement.
The designation of a creditor beneficiary has been abolished in Kansas. Noller v. General Motors Corp., 13 Kan. App. 2d 13, 760 P.2d 688 (1988), aff'd in part, rev’d in part 244 Kan. 612, 772 P.2d 271 (1989). It is helpful to employ that term in examining the petition. The plaintiffs fit the definition of a creditor beneficiary to whom a duty was owed by all parties to the third-party agreement. That being correct, it follows that they may sue either party for breach of the agreement made for their benefit.
We hold that the petition at hand states a claim upon which relief can be granted against PMI and Torres. The fact that PMI and Torres occupied the position of promisee under the agreement sued upon does not entitle them to breach that agreement and damage plaintiffs and then escape all liability for the damage they allegedly caused.
It also appears that this petition may state a claim for relief on the theory that PMI and Torres breached an implied duty of good faith and fair dealing owed to the plaintiffs. This theory is recognized in Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987). We cannot determine if that theory will be factually supportable, but that is not at issue here and will be determined as the lawsuit unfolds. Suffice it to say, the petition infers that the third-party agreement was used to obtain an advantage to PMI and Torres and was then breached by them. The parties to the third-party agreement all owed the plaintiffs a duty of good faith and fair dealing, and the manner in which that agreement was abrogated may have violated that duty. While the petition utilizes certain allegations that are somewhat equivocal in their direction, we have no hesitancy in holding it is sufficient to state a claim for relief.
In summary, we hold that the trial court erred in granting the motion to dismiss for failure to state a claim. There is no absolute prohibition against a third-party beneficiary suing the promisee of the third-party agreement. The petition alleges sufficient facts to show that PMI and Torres owed a duty to plaintiffs under the third-party agreement and that they breached that duty. This is sufficient and is all that is required under our modern rule of pleading. On remand, plaintiffs will be responsible for proving those allegations, and only time will tell whether they can sustain that burden. We hold here only that, under our procedure, facts sufficient to state a claim have been well-pled, and plaintiffs are entitled to proceed with discovery.
DID THE TRIAL COURT ERR IN DISMISSING THE PETITION AGAINST TORRES FOR LACK OF JURISDICTION?
The trial court held that personal jurisdiction did not exist over Torres because he signed all of the contracts, except the third-party contract, as a corporate officer. The trial court further held that, with regard to the third-party contract, Torres signed as a guarantor and, therefore, did not submit himself, a Texas resident, to jurisdiction in Kansas.
We believe the trial court erred in its conclusion.
K.S.A. 1990 Supp. 60-308(b) sets out the conditions under which Kansas courts have jurisdiction over foreign residents. The relevant provisions of that statute state:
“Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
“(1) Transaction of any business within this state;
“(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.”
It is important to note that the contract on which plaintiffs base their cause of action is a third-party beneficiary contract entered into between Torres and PMI, who are Texas residents, and Pizza Hut, which is a Kansas resident. K.S.A. 60-308(b)(5), quoted above, clearly states that entering into an agreement with a resident of this state to be performed in whole or in part by either party in this state subjects that individual to the jurisdiction of the Kansas courts. Torres and PMI entered into a third-party contract with Pizza Hut, a resident of Kansas. The performance of that contract was to take place in whole or in part within the State of Kansas.
We also hold that the due process requirements of the Fourteenth Amendment have been satisfied. That amendment requires “certain minimum contacts” between the defendant and the state asserting jurisdiction and further provides that the maintenance of the suit must not offend traditional notions of fair play and substantial justice. Internat. Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). In the present case, such contacts have been met. Torres voluntarily entered into the contract with a Kansas resident, performance of which would take place in Kansas. The purpose of Torres entering into the third-party contract was to persuade Noel to sell his Pizza Hut restaurants and franchise rights to PMI. As a direct result of the third-party agreements, Torres was able to purchase the Pizza Hut restaurants and franchise rights belonging to Noel. The required “minimum contact” was present.
The mere fact that Torres signed the 1976 agreement as a guarantor does not affect our decision. The cases indicate that, as long as minimum contacts exist and the notions of fair play are not offended, Kansas can exert jurisdiction over Torres, even though he signed as a guarantor. See First City Bank v. Air Capitol Aircraft Sales, 820 F.2d 1127 (10th Cir. 1987); Marathon, Etc. v. Mountain Empire Const. Co., 653 F.2d 921 (5th Cir. 1981); Intamin, Inc. v. Figley-Wright Contractors, Inc., 595 F. Supp. 1348 (N.D. Ill. 1984).
In Intern. Pizza Hut, Etc. v. Supreme Pizza, Inc., 464 F. Supp. 65 (D. Kan. 1978), a fact pattern similar to the one before this court existed. A third-party beneficiary was suing on a contract and one of the parties to that contract was Pizza Hut, a Kansas resident. In Supreme Pizza, the federal district court held that K.S.A. 60-308(b)(5) clearly provided jurisdiction in Kansas in a suit by the third-party beneficiary, who was not a Kansas resident. The court stated:
“The only true question before the Court is whether the long arm statute authorizes service on one whose contract with a Kansas resident gives rise to an action by a third party beneficiary of that contract. This Court finds that it does. The literal wording of the statute applies to the facts before the Court. Defendant has entered the requisite contract and plaintiffs claim arises out of that contract. The statute authorizes service on anyone with a given relationship to the forum — one who has contracted with a Kansas resident for some performance by some party in the state. Nothing in subsection (b)(5) restricts service only to those whose contract has given rise to a claim asserted by a party to the contract. Plaintiffs third party claim arises out of the Pizza Hut contract. It falls within the literal ambit of the statutory provision.
“The Kansas courts have consistently held that the Kansas legislature intends the long arm statute to authorize personal service to the fullest extent of the due process clause. Woodring v. Hall, 200 Kan. 597, at 606, 438 P.2d 135, at 144 (1968); Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 (1974). This goal can be achieved only by a broad interpretation of the long arm statute that provides for service in the widest possible set of circumstances and in as many cases as the literal wording of the statute permits. This interpretation comports with the general view that a case ‘should not be dismissed for want of jurisdiction as being outside the scope of the statute, unless by no reasonable construction of the language could it be said to fall within the statute’s terms.’ Casad, Long Arm and Convenient Forum, 20 Kan. L. Rev. 1, 45 (1971).” 464 F. Supp. at 67.
We hold that the Kansas courts clearly may exercise jurisdiction over Torres with regard to the 1976 agreement being sued on.
On its cross-appeal, PMI appeals the decision of the trial court that it is subject to the jurisdiction of the State of Kansas.
We affirm the trial court’s decision in this regard. PMI entered into the same agreements as did Torres. It is an agreement with a Kansas resident, which was intended to be performed in full or in part in the State of Kansas. Under those circumstances, K.S.A. 1990 Supp. 60-308(b)(5) authorizes the exercise of jurisdiction by this state.
OTHER ISSUES
After the trial court dismissed the plaintiffs’ petition, PMI and Torres filed a motion requesting they be awarded attorney fees pursuant to K.S.A. 1990 Supp. 60-211. The motion was denied because no bad faith on the part of the plaintiffs was shown. PMI and Torres have appealed the trial court’s holding.
We have held that the petition did state a claim for relief and should be remanded for trial. In view of that decision, we affirm the trial court’s denial of attorney fees to the defendants.
After the plaintiffs had filed their notice of appeal, PMI filed a motion with the trial court pursuant to K.S.A. 60-227(b) to take depositions and to produce documents. The trial court denied the motion, holding that, because the case was at the appellate stage, it had no jurisdiction to grant the motion. In view of our decision, it would appear that this issue is moot. We would point out that, in our opinion, K.S.A. 60-227(b) does provide the trial court with jurisdiction to permit depositions for cases on appeal if the trial court finds it is in the interest of justice. This case is being remanded for trial, and we assume whatever depositions PMI had in mind can be taken on remand. For this reason, we conclude that this issue is moot and we decline to discuss it in detail.
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Davis, J.:
Claimant, Velma M. Williams, appeals from the trial court’s conclusion that she had failed to prove any work disability. Beech Aircraft contends the trial court’s conclusion is a negative finding and must be affirmed. For legal errors set forth below, we reverse and remand with directions.
Highly summarized, the facts are that claimant was injured while operating a power gun in the course of her employment. The initial wrist injury developed into a condition known as shoulder-hand syndrome. This condition undeniably results in severe pain and the inability to perform certain motor functions with the arm.
Following treatments which included surgery, physical therapy, and occupational therapy, claimant was released by Dr. Philip R. Mills to return to work with no restrictions. Mills found she suffered a 3% permanent physical impairment. Dr. Ernest R. Schlachter disagreed with Mills. Based on his examination, Dr. Schlachter concluded that claimant suffered a 25% permanent partial impairment. He also determined that because the claimant had limited use of her arm, she would never be able to perform the job she was performing at the time of her injury.
The administrative law judge found the claimant suffered an 85% permanent partial general bodily disability. On appeal, the director concluded that Beech Aircraft had failed to provide vocational rehabilitation to claimant and had not offered proof of claimant’s ability to work at comparable wages in the open labor market. The director, therefore, concluded that claimant suffered a 100% work disability.
On appeal, the district court overruled the director and found that claimant had sustained a 25% permanent partial disability to the body as a whole. However, the court concluded that claimant failed to sustain her burden of proof that her injury reduced her ability to perform work in the open market and earn comparable wages. Based upon this finding, the court concluded that plaintiff had failed to prove any work disability. The appeal follows.
1. Work Disability
Claimant presented evidence in the form of a deposition of Jerry D. Hardin. Jerry Hardin is the owner and president of Personnel Services, Incorporated, located at 1800 Epic Center in Wichita, Kansas. At the time of his deposition, Hardin had been employed in personnel business for over 20 years and had owned Personnel Services since May of 1972. Personnel Services is used by some 3,000 companies in the Wichita area and has a national affiliation with some 250 companies located throughout the United States. Personnel Services provides basic recruitment for a fee. If a company using Personnel Services has an opening, Personnel Services will advertise and do the initial screening and processing of applicants for that position, both locally and nationally. Thus, Hardin, as president and owner, has extensive experience with the type of employment that exists in the economy, the type of people that are required to fill positions, and the duties that are required of employees for positions in the local market.
In arriving at its conclusion that the claimant had failed to sustain her burden of proving that her injury reduced her ability to perform work in the open market and earn comparable wages, the trial court rejected Hardin’s testimony. The trial court concluded, as a matter of law, that K.S.A. 1990 Supp. 44-510e requires that no one can render an opinion on the claimant’s ability to perform work in the open labor market and earn comparable wages unless that person is a vocational rehabilitation evaluator as defined by K.A.R. 51-24-3(c). K.A.R. 51-24-3(c) defines an evaluator as a person who has provided the director with the necessary proof of eligibility for qualification under K.A.R. 51-24-5(b) and who has received a certification of qualification from the director.
We have read K.S.A. 1990 Supp. 44-510e and find nothing which directly requires or suggests that only a vocational rehabilitation evaluator as defined by K.A.R. 51-24-3(c) may render an opinion concerning claimant’s ability to perform work in the open market and earn comparable wages.
It would appear from our review of the qualifications and experience of Jerry D. Hardin that he would qualify as an expert witness. However, the determination of whether he qualifies is entrusted to the discretion of the trial court. We conclude that the exclusion of Hardin’s testimony under the provisions of K.S.A. 1990 Supp. 44-510e and K.A.R. 51-24-3(c) is reversible error. We remand to the trial court for its further consideration of the question of Hardin’s qualifications and the evidence offered by him should the trial court conclude that he is qualified as an expert.
2. Vocational Rehabilitation Services
The district court further found that the claimant refused to participate in vocational rehabilitation services under the provisions of K.S.A. 1990 Supp. 44-510g(i). The district court erroneously concluded that the provisions of the statute required that the claimant request a vocational rehabilitation evaluation or benefits as a prerequisite to obtaining compensation pursuant to K.S.A. 1990 Supp. 44-510e for her loss in ability to perform work in the open market and earn a comparable wage.
The record contains no evidence that claimant refused to be evaluated for or to participate in a designated plan of vocational rehabilitation thereby triggering the director’s discretion to suspend payments until claimant consented to be evaluated or to participate. Vocational rehabilitation is mentioned three times in the record. First, claimant acknowledges a need for vocational rehabilitation in her submission letter. Second, in response to an inquiry by the ALJ, claimant said she was not requesting rehabilitation at this time. Finally, Reech Aircraft denied that any vocational rehabilitation was required since claimant suffered no work disability.
There simply is no evidence to establish that claimant actively refused to participate in vocational rehabilitation. K.S.A. 44-510g(i) contemplates action on the part of the director before the act of refusal can be effected by a claimant. The district court’s interpretation of K.S.A. 1990 Supp. 44-510g(i) is erroneous.
Contrary to Reech Aircraft’s contention, the question does not present itself as a negative finding by the trial court, but rather consists of legal errors requiring reversal. We, therefore, reverse and remand for further consideration.
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Miller, J.:
This is an appeal from the trial court’s denial of defendant’s motion to suppress. The only issue is whether the trial court erred in doing so. As is often true in search and seizure cases, the facts of this case are crucial to the resolution of the issue and will be stated in some detail.
On the morning of April 21, 1989, Troopers Michael Nicholson and W.D. Mayfield of the Kansas Highway Patrol were on routine patrol on U.S. Highway 75 in Coffey County. While traveling northbound, Trooper Nicholson, who was driving, clocked a speeding southbound vehicle on radar, and the speeding car was stopped. In addition to the driver, who was cleanshaven and had short hair, the car also contained defendant Gary Don Burks, who was unshaven and had long hair and a mustache. Defendant was wearing what Trooper Mayfield described as a “gooney looking hat,” a heavy coat, and a heavy sweater. According to the testimony of both troopers, he did not fit the “profile” for the situation because of his appearance as contrasted to that of the driver.
Trooper Mayfield testified that his usual procedure when riding as the passenger in the patrol car was to monitor radio traffic from inside the car while the trooper who was driving made contact with the driver of the stopped car. However, on this occasion, because of the suspicious nature of defendant’s appearance in the vehicle, Trooper Mayfield got out of the patrol car and stood at the car’s right front fender.
Trooper Nicholson made contact with the driver, advised him of the purpose of the stop, and learned that defendant was a hitchhiker who had been picked up shortly before the stop. Upon learning this, Trooper Nicholson made a hand gesture toward the passenger side of the car. Trooper Mayfield assumed the gesture meant something was amiss with the passenger and he approached the passenger’s door as defendant was in the process of rolling down the window. Defendant handed Trooper Mayfield his driver’s license, which Mayfield put in his pocket without examination. Mayfield then told defendant to get out of the car and, taking him by the arm, directed defendant to the rear of the car and told him to place his hands on the trunk so that Mayfield could pat him down. Up to this point, defendant had said nothing to either trooper and he had made no threatening gestures. According to Trooper Nicholson, prior to handing his license to Mayfield, defendant had done nothing except sit quietly in the car with his hands resting on top of a duffel bag in his lap. The duffel bag was described by Mayfield as closed with no suspicious bulges. While in the car, defendant had no noticeable suspicious bulges upon his person.
As a result of the pat-down, a knife and a gun were found concealed on defendant’s person. He was arrested and transported to the county jail where he was booked for carrying a concealed weapon. An inventory search was conducted and marijuana and drug paraphernalia were found in defendant’s duffel bag.
Defendant was charged with and convicted of an aggravated weapons violation (K.S.A. 21-4202), unlawful possession of a firearm (K.S.A. 21-4204[1][b]), felony possession of marijuana (K.S.A. 1989 Supp. 65-4127b[a][3]), and possession of drug paraphernalia (K.S.A. 1989 Supp. 65-4153[a][2]). He contends all of the evidence was illegally seized because Trooper Mayfield had no legal basis to conduct the initial pat-down. It should be noted that hitchhiking wás not illegal on the portion of Highway 75 where defendant was picked up.
The parties have dissected the issue stated into several sub-issues: (1) Whether the “stop and frisk” of defendant was justified pursuant to K.S.A. 22-2402; (2) whether the search of defendant’s duffel bag could be justified as incident to defendant’s arrest for the weapons violation; and (3) whether the initial pat-down search of defendant could be justified as incident to the “arrest” of the driver of the car. Suffice it to say that all of the issues have as their genesis the removal of defendant from the car and the pat-down search of him, and the admission of the evidence must stand or fall upon the propriety of the troopers’ actions.
Defendant argues his removal from the car violated the stop and frisk statute, K.S.A. 22-2402, and, thus, the Fourth Amendment to the United States Constitution. He argues the troopers, and specifically Trooper Mayfield, did not have sufficient objective facts on which to base a reasonable, articulable suspicion that he had been, was, or was about to be involved in criminal activity, allowing them to remove him from the car. The State emphasizes that Trooper Mayfield removed defendant from the vehicle to insure both troopers’ safety, a permissible purpose under the Fourth Amendment and 22-2402, and that the reasonable, articulable suspicion required by the statute arose from the fact that the car was speeding. The State argues that defendant’s appearance, dress, position in relation to his duffel bag, and hitchhiking activity all combined to form a reasonable basis from which the troopers could form the belief that their safety was in jeopardy, thus justifying removal of defendant from the car. The trial court stated defendant’s dress and duffel bag gave the troopers a reasonable belief that a search of his person was necessary for their safety.
In Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977), the Court held that the removal of the driver from a car on a routine traffic stop does not violate the Fourth Amendment. In that case, two officers, while on routine patrol, stopped Mimms for driving a car with an expired license plate. One officer asked Mimms to get out of the car and show his car registration and driver’s license. As Mimms got out of the car, the officer noticed a bulge underneath Mimms’ jacket. The officer frisked Mimms and discovered a gun, and Mimms was arrested. Mimms moved to suppress the gun. In upholding the denial of the motion, the Court held the removal of Mimms from his car did not violate the prohibition of unreasonable seizure, balancing the interest of the officers with that of the driver. The officers’ interest in self-protection from unseen actions by a driver, even during a routine traffic stop, despite the lack of particularized suspicion about possible dangerous circumstances, is “legitimate and weighty.” 434 U.S. at 110. The driver’s interest in preventing such a brief intrusion into privacy is, by comparison, “de minimis.” 434 U.S. at 111. In reaching its holding, the Court did note that the state did not go so far as to argue it is permissible to “frisk the occupants of any car stopped for a traffic violation. Rather, it only argues that it is permissible to order the driver out of the car.” 434 U.S. at 110 n.5.
In United States v. Hardnett, 804 F.2d 353, 358 (6th Cir. 1986), the court relied on Mimms in ruling that officers could order passengers as well as the driver out of the car during an investigative stop. The officers in that case, however, had received a report that a group of men riding in a car matching the description of the one stopped were armed and dangerous. The court reasoned that, if removal of the driver without a particularized suspicion that the driver is armed is allowable, removal of a passenger where there is a particularized suspicion that the passenger is armed is certainly allowable. 804 F.2d at 358. Cf. United States v. Taylor, 857 F.2d 210, 214 (4th Cir. 1988) (where officers knew that two of the three occupants of a car had records of narcotics and handgun violations, removing the occupants was a “valid precautionary measure”).
This court also relied on Mimms to find that removing an occupant from a car did not violate the Fourth Amendment. State v. Webb, 13 Kan. App. 2d 300, 769 P.2d 34 (1989). In Webb, the Liberal Police Department received a request from the Sedgwick County Sheriffs Department for assistance in apprehending a described individual wanted on a felony warrant. The individual was described as armed and dangerous and it was reported he would be accompanied by two other black males, also armed and dangerous. Acting on information from a confidential informant that the three men were in a specific car, the police stopped the car and ordered its three occupants out of the car. Although defendant, an occupant of the car, was not the sought-after felon, he was arrested because a search of his person and the car revealed drugs and drug paraphernalia. Defendant argued his removal from the car violated the Fourth Amendment. Disagreeing, this court found Mimms controlling, reasoning that, if Mimms allows the driver to be removed on a routine traffic stop, it certainly allowed defendant to be removed when there was a reasonable and articulable suspicion, based on the reports the officers had received, that he was armed and dangerous. 13 Kan. App. 2d at 303.
When one contrasts the knowledge of the officers in the cases cited above with that of the troopers in the present case, Trooper Mayfield did not have a sound basis for removing defendant from the car. Neither trooper had received a report of any crime or descriptions of criminal suspects who may have been in the area. Both troopers testified that defendant “didn’t fit” the car and its driver based upon his appearance and the fact that he had been hitchhiking. Although the troopers professed concern for their safety, they never removed the driver from the vehicle, which is permissible under Mimms. It is clear the troopers did not focus on or consider the driver to determine whether he was a possible threat to their safety, but directed almost all of their attention to defendant.
In denying a motion to reconsider its earlier denial of a motion to suppress, the trial court stated the search of defendant was reasonable as a search pursuant to the lawful arrest of the driver. K.S.A. 22-2501. The trial court did not discuss the stop and frisk statute as possible justification for the search of defendant.
K.S.A. 22-2402 reads as follows:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”
This statute is patterned after the test enunciated in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). There, the Court held “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime” does not violate the Fourth Amendment prohibition of unreasonable searches and seizures. 392 U.S. at 27. The officer must have a reasonable conclusion “that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.” If the officer possesses this conclusion, he may conduct “reasonable inquiries.” If these inquiries do not dispel the reasonable fear for the safety of himself or others, a carefully limited search of the outer clothing is permissible to discover weapons. 392 U.S. at 30.
Interpreting 22-2402, the Kansas Supreme Court has stated:
“In the light of what as been said in the foregoing cases mentioned and discussed herein, we believe that the ‘stop’ authorized by 22-2402 requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime. Further, in order to justify the search for weapons authorized under the provisions of subsection (2) of 22-2402, the officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by subsection (1) which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search.” State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 (1973).
See State v. Potter, 246 Kan. 119, 122-23, 785 P.2d 989 (1990).
While the State argues the speeding car gave the troopers reasonable suspicion under 22-2402(1) to stop the car, defendant’s challenge is not to the authority to stop and detain the car for the speeding violation.. Instead, he is challenging the authority of the troopers to frisk his person after the car in which he was riding was stopped for speeding. The pat-down search of defendant was separate and distinct from the stop of the vehicle for speeding. Therefore, pursuant to the statute, the troopers must have had reasonable suspicion to search defendant.
On several occasions, the Kansas Supreme Court has considered what grounds give rise to the reasonable suspicion of criminal activity required by 22-2402 and Terry for a valid stop and frisk. In Jackson, defendant was walking along a highway at 2:50 in the morning when an officer stopped and frisked him. In affirming suppression of incriminating evidence found on defendant, the court noted the officer, following the “common practice” of the department, stopped defendant merely because he was walking along the highway at a very early hour. The court stated that, while under Terry “the stop of a suspicious person may be reasonable if coupled with some facts known to the officer,” the officer did not possess any such facts. 213 Kan. at 224. Instead, the officer stopped defendant only “because of custom,” and the questioning of defendant immediately prior to the frisk did not uncover grounds for reasonably believing he was armed and dangerous. 213 Kan. at 224-25.
In State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), an officer was on routine patrol in a neighborhood where many burglaries had occurred. He saw a black BMW, legally parked, with two men inside, one of whom bent forward and then straightened at the sight of the police car. Both men appeared startled, left the car, and began walking down the street. The officer stopped the men and, receiving no satisfactory answer from questioning, searched the car and found an axe and two baggies of cocaine. In affirming suppression of this evidence, the Kansas Supreme Court found the officer had seized the two men when he stopped them for questioning. Under 22-2402 and Terry, the court stated this action required “a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.” 237 Kan. at 712. The requisite reasonable suspicion of criminal activity was missing from this fact pattern. See State v. Guy, 242 Kan. 840, 843, 752 P.2d 119 (1988).
The court recently considered the propriety of checking the identification of passengers in a car stopped for a traffic violation in State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990). A car driven by Damm was stopped for defective taillights. The officer requested identification from Damm and his two passengers and ran record checks on all three. There was an outstanding warrant on one of the passengers and the officer arrested him. The officer then searched the car, following “department policy,” and discovered drug paraphernalia and cocaine. The court found that, while the initial stop for defective taillights was valid, it exceeded its necessary scope and duration when the passengers’ identities were checked. The court found the officer could not have had a reasonable suspicion that there were outstanding warrants on either of the passengers, had not received any reports of crimes committed, and had seen nothing in the car suggesting criminal activity. The court concluded the officer had no reasonable justification for checking the passengers’ identities and affirmed suppression of the drug paraphernalia and cocaine.
Existence of a reasonable, articulable suspicion of criminal activity depends on facts unique to the case, such as “location, time of day, previous reports of crime in the area, and furtive actions of suspects.” State v. Kirby, 12 Kan. App. 2d 346, 353, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988). A comparison of the surrounding circumstances and of the troopers’ knowledge in the present case with that noted in the cases discussed supports the finding of lack of reasonable suspicion that defendant was involved in criminal activity or that he was armed and dangerous.
Further, Trooper Mayfield frisked defendant after he learned he was a hitchhiker because, according to his testimony, it was his standard procedure to question and pat down all hitchhikers. As in Jackson, it is clear this custom was the prime motivation for the frisk, not any suspicious behavior by defendant. Defendant did not appear to be armed, as noted in Epperson. The troopers testified neither defendant’s clothing nor his duffel bag bulged as if they concealed weapons. Finally, as considered in Epperson and Damm, the troopers had not received any reports of crimes committed in the area and did not have knowledge of any crimes committed by defendant. Nor did the troopers testify they thought the driver of the car was in trouble or in danger with defendant in his car.
In State v. Potter, 246 Kan. 119, 785 P.2d 989 (1990), a deputy received a radio report of an early morning convenience store robbery. The perpetrators were reported to have been wearing camouflage suits and black greasepaint on their faces. About two hours after receiving the report, the deputy was patrolling a neighborhood that had experienced several car thefts and vandalism when he noticed a car drive through the parking lots of a Kwik Shop and a small shopping center several times. The deputy thought the car’s occupants were either lost or involved in a crime. When he pulled up behind the car, he noticed it did not have a license plate. The rear window was fogged so he could not determine whether the car had a valid temporary permit. He stopped the car and did see a permit in the rear window as he was walking toward it. He also saw a passenger in the rear seat who was wearing a camouflage suit and black greasepaint on his face. When the deputy saw the front-seat passenger was dressed the same way, he drew his revolver and ordered all occupants out of the car. On appeal, the front-seat passenger argued the deputy lacked reasonable suspicion to make the stop. In rejecting this contention, the court stated the observed behavior was more suspicious than the behavior observed in either Jackson or Epperson. The deputy also had reason to believe the car was not licensed when he stopped it.
By way of contrast, defendant here made no gesture or movement when approached, except to hand his driver’s license to the trooper. He was hitchhiking early on a late April morning and was wearing a heavy sweater and coat. There was no report of any crime. Defendant did nothing to raise any suspicion of criminal activity or of being armed — he was searched for being a hitchhiker, dressed in a manner different from the driver, and holding a duffel bag on his lap. Because this behavior is not sufficient in light of precedent to establish either a reasonable suspicion that defendant was involved in criminal activity or that the troopers’ safety was endangered, the pat-down search of his person violated 22-2402 and the Fourth Amendment. The knife and gun discovered during the pat-down must be suppressed, as must the drug paraphernalia and marijuana discovered subsequent to defendant’s arrest for possession of the weapons. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
All other variations of the issue before this court have been considered and found to be without merit.
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Coffman, J.:
Mid American Credit Union (Mid American) appeals the order of the district court granting summary judgment to the Board of County Commissioners of Sedgwick County; the county treasurer, Jerry McCoy; and the State of Kansas by and through the Kansas Department of Revenue (KDR). Mid American claims that these defendants were negligent in failing to list its lien on a certificate of title issued to Christopher Woods. The Board and County Treasurer McCoy filed one brief with the same arguments and will be referred to as “the county.” The county and the KDR cross-appeal the court’s finding that the Kansas Tort Claims Act does not protect them. The KDR also cross-appeals the court’s finding that it was a proper party to the action and the court’s modification of an order without notice to the KDR.
In 1985, Mid American loaned Christopher Woods money to purchase a 1980 Corvette and received a security interest in the car. Mid American promptly sent a notice of its security interest to the KDR pursuant to what is now K.S.A. 1990 Supp. 8-135. In February 1986, the KDR informed Mid American by letter that no one had applied for a certificate of title and, since 30 days had passed, the notice of security was being removed from its files. Woods neglected to file for a title and, by June 1986, had defaulted on the loan. The credit union repossessed the automobile and secured a new certificate of title.
In April 1987, Mid American negotiated a sale of the vehicle to Woods and again assigned the title to Woods. The assignment, contained on the back of the certificate of title, again listed Mid American’s lien. This time an application for title was completed and signed by Woods. The trial court found that an employee of the county treasurer’s office had typed the application for Woods based on the certificate of title, Mid American’s letter, and answers given to the employee by Woods. The application incorrectly stated there were no security liens. The application for title was sent to the KDR, which issued a certificate of title to Woods stating there were no liens.
Woods assigned title to Candace McFadden in July 1987, who filed an affidavit with the KDR stating the car was a gift from her father. No lien was noted on her certificate of title. The title was then assigned in sequence three times to different assignees. Mid American’s lien was never listed on the subsequent titles.
Woods again defaulted on the loan and has since disappeared. Mid American alleges that the defendants’ failure to note its lien on Woods’ certificate of title as specified by K.S.A. 1990 Supp. 8-135(c)(1) caused it damage in the amount of $7,430, the value of the 1980 Corvette.
The county and the KDR filed motions for summary judgment, which the trial court granted. In reaching its decision, the court found that Mid American had not perfected its lien; that the county treasurer was not acting on behalf of the department but as an agent for the applicant Woods, who is solely responsible for the failure of the certificate of title to reflect the credit union’s lien; and that, since Woods was a thief, he could not pass good title and Mid American still had a valid interest in the car and had suffered no damage. The court further held the Kansas Tort Claims Act did not protect the defendants from liability.
We first address the court’s finding that the county treasurer, in completing the application for title, was acting as Woods’ agent and, thus, the treasurer’s duty was only to Woods, who was solely responsible for plaintiffs damage.
“Actionable negligence must be based on a breach of duty. Existence of duty is a question of law.” Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989). “This court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
K.S.A. 1990 Supp. 8-135(c)(1) provides that the application for certificate of title shall be made by the owner or the owner’s agent and shall state all liens or encumbrances. It further provides that:
“The county treasurer shall use reasonable diligence in ascertaining whether the facts stated in such application are true, and if satisfied that the applicant is the lawful owner of such vehicle, or otherwise entitled to have the same registered in such applicant’s name, shall so notify the division, who shall issue an appropriate certificate of title. The certificate of title shall be in a form approved by the division, and shall contain a statement of any liens or encumbrances which the application shows, and such other information as the division determines.”
K.S.A. 1990 Supp. 8-135(c)(1) imposes a duty on the county treasurer to use “reasonable diligence” to verify the facts stated in the application and to “so notify the division.” Thus, the county treasurer had a duty to ascertain whether Woods “was the lawful owner of such vehicle.” As a public employee the treasurer owed this duty, not just to Woods, but to others whom the procedures under the statute are designed to protect, including plaintiff lien-holders. Common law creates liability for those recorders of transfers of land who make negligent mistakes in recording or indexing. 66 Am. Jur. 2d, Records and Recording Laws § 195. While the general rule enunciated concerns transfers of land, it is equally applicable to transfers of personal property. The public depends on the accuracy of such documents for validity of ownership and transfers. See VanNatta v. Crites, 178 Ind. App. 113, 118-19, 381 N.E.2d 532 (1978).
The county treasurer had a duty to ascertain the facts and verify the accuracy of the application for title. Clearly Woods acted fraudulently in transferring the title to McFadden without noting the lien on the application and ultimately on the new certificate of title. However, absent immunity, there remains a question of fact whether the clerk in the county treasurer’s office, who failed to record the lien on the application despite its presence on the assignment, was negligent.
The question remains whether the KDR breached a duty. K.S.A. 1990 Supp. 8-135(c)(1) imposes a duty on the KDR to issue an “appropriate certificate of title.” An appropriate certificate must list all liens and encumbrances. K.S.A. 1990 Supp. 8-135(c)(1). This was not done. Whether the KDR failed to use due care and was responsible for this breach is a question of fact.
The county and the KDR each had a duty to Mid American. Whether these duties were breached causing damage to Mid American remain as questions of fact not proper for summary judgment. K.S.A. 1990 Supp. 60-256(c).
The trial court found that the county and the KDR are not protected by governmental immunity. We agree. Under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., a governmental entity is liable for negligent acts committed by any of its employees while acting within the scope of their employment if a private person would be liable under the laws of the state. K.S.A. 75-6103. Exceptions to this liability are provided in K.S.A. 75-6104. Under the act, liability is the rule and immunity the exception. Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984). The burden is on the governmental entity to show that it is immune from liability under one of the exceptions and any doubt should be construed against the exception. 235 Kan. at 286.
Both the KDR and the county argue that the “inspection” exception contained in K.S.A. 75-6104(k) applies. This section states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(k) the failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the governmental entity, to determine whether the property complies with or violates any law or regulation or contains a hazard to public health or safety.”
Both parties rely on Siple v. City of Topeka, 235 Kan. 167, 172, 679 P.2d 190 (1984), where the Kansas Supreme Court adopted, the definition for “inspection” in Black’s Law Dictionary, which includes examining the authenticity or conditions of a document. Black’s Law Dictionary 716 (5th ed. 1979). However, Siple did not concern an inspection of a document but the inspection of a tree for the purpose of determining if it was safe. The Kansas Supreme Court found the “inspection” exception applied and the city was immune from liability. 235 Kan. at 174.
More relevant to the matter before us are two cases which dealt with the inspection of documents. Collins v. Heavener Properties, Inc., 245 Kan. 623, 783 P.2d 883 (1989); Griffin v. State, 14 Kan. App. 2d 803, 799 P.2d 521 (1990).
In Collins, the Kansas Supreme Court held the inspection exception did not apply where the Board of County Commissioners erroneously issued a permit to build a septic tank on the plaintiffs’ land. 245 Kan. at 631. Subsequently, plaintiffs received a permit to build a home. After the house was built, problems began with the plumbing. Plaintiffs then discovered the health department had determined the land was not suitable for a septic tank and should remain undeveloped. However, this information was inexplicably altered on the county records. Plaintiffs sued the county and the developer who had sold them the land and who had obtained the permit for the septic system. The trial court dismissed the county, finding it was immune from liability by virtue of the inspection exception. While the Supreme Court did affirm on the basis that another exception applied, it found the inspection exception inapplicable because the county did not perform the inspection of the soil. Its sole function was to apply the results of the tests to its standards for a septic tank permit. This was done negligently because the county either disregarded a previous test showing the soil was not acceptable or relied on the alteration of that information.
In Griffin, the plaintiff, Kenneth D. Griffin, sued the State after being erroneously arrested for driving with a suspended license. Another Kenneth D. Griffin had been notified that his license would be suspended if he did not provide proof of insurance. The notice erroneously listed the plaintiffs driver’s license number. When the plaintiff was later stopped for speeding, a routine license check indicated his license had been suspended, and he was arrested. He later filed suit. The trial court held the inspection exception did not provide the State with immunity, and this court agreed. In Griffin we held the inspection was not conducted to determine if the document in question, a notice of conviction, complied with the law, but the record was examined to determine if Griffin was subject to administrative action. Thus, this inspection was not within the meaning of K.S.A. 75-6104(k). 14 Kan. App. 2d 807-08.
In both Collins and Griffin, the county official looked at documents already prepared and determined if further action was permitted or required.
In the present case, the county treasurer had a duty to examine the application to determine if the facts stated in it were true. K.S.A. 1990 Supp. 8-135(c)(1). In making this decision, the county treasurer had before him the assignment on the back of the title which listed the lien of Mid American. Convinced the application meets the standard for a certificate of title, the county treasurer notified the KDR. This action is similar to that in Collins and Griffin and, as such, is not included in the inspection exception. The KDR likewise is not covered by the exception since it receives the documents and issues an appropriate certificate, of title.
We turn now to the question of whether Mid American suffered damages.
The trial court found:
“3. That Christopher Woods, the applicant in this case, is considered a thief and is therefore unable to transfer good tide to any subsequent transferees. Plaintiff still maintains its security interest in the 1980 Corvette and has not sustained any damages, nor has it adequately pursued its remedies prior to bringing this action.”
All parties agree the trial court erred when it found Woods was a thief. Accordingly, the interest of subsequent transferees was not defeated by a theft.
The crucial question in determining whether Mid American was damaged is whether its lien was impaired by the neglect of the county treasurer and of the KDR to see that it was noted on Woods’ certificate of title. If its lien was impaired, and certainly if it was not perfected, Mid American was damaged.
K.S.A. 1990 Supp. 84-9-302(3) provides:
“A security interest in:
“(c) a vehicle . . . subject to a statute of this state which requires indication on a certificate of title or a duplicate thereof of such security interests in such vehicle:
“Can be perfected only by presentation, for the purpose of such registration or such filing or such indication, of the documents appropriate under any such statute to the public official appropriate under any such statute and tender of the required fee to or acceptance of the documents by such public official, or by the mailing or delivery by a dealer or secured party to the appropriate state agency of a notice of security interest as prescribed by K.S.A. 8-135, and amendments thereto. Such presentation and tender or acceptance, or mailing or delivery, shall have the same effect under this article as filing under this article, and such perfection shall have the same effect under this article as perfection by filing under this article.”
In Beneficial Finance Co. v. Schroeder, 12 Kan. App. 2d 150, 151, 737 P.2d 52, rev. denied 241 Kan. 838 (1987), this court stated:
“Pursuant to K.S.A. 1986 Supp. 84-9-302(3), a security interest in a vehicle may be perfected by noting its existence on the vehicle’s certificate of title, or by mailing or delivering notice of the security interest to the Division of Motor Vehicles. K.S.A. 1986 Supp. 8-135(c)(5). Mailing or delivering notice of the security interest perfects the secured party’s interest during the period from attachment to notation on the certificate of title.”
The Kansas comments to 84-9-302 also state the lien must be noted on the certificate of title.
“Subsections (3)(b) and (3)(c) make it clear that security interests in motor vehicles can be perfected only by indication of the security interest on the certificate of title. These matters are governed by K.S.A. 8-135, which must be read in close relationship to this subsection.”
The federal courts have interpreted this statute differently, finding that listing the lien on the title is not necessary to perfect the interest. In re Littlejohn, 519 F.2d 356 (10th Cir. 1975). There, the Tenth Circuit Court of Appeals relied on the language in K.S.A. 84-9-302 which requires the documents only be “tendered” to perfect the interest. Thus, the fact that the buyer in Littlejohn never applied for a certificate of title, and so none was issued listing the lien, did not mean the secured party had not perfected his interest. The creditor had noted its lien on the bill of sale and was thus protected against the claim of the bankruptcy trustee. The court emphasized that no unsecured creditors or purchasers were prejudiced. See Matter of Kern, 443 F. Supp. 219, 221 (D. Kan. 1977).
After Littlejohn, the legislature amended K.S.A. 8-135(c)(5) and K.S.A. 84-9-302(c) to allow a creditor to file a notice of security interest with the KDR to cover the period between the sale and the purchaser’s obtaining a certificate of title. L. 1975, ch. 32, §§ 1, 2.
We believe the interpretation of the relevant statutes by the court in Beneficial Finance Co., 12 Kan. App. 2d 150, and the Kansas comments are correct. The lien must be noted on the certificate of title to be perfected. Allowing perfection without such a notation would endanger the reliability of sales of vehicles by assignment of title. Here Mid American’s security interest was not perfected because it was not listed on the certificate of title. Mid American should not be defeated because it did not send a notice of the security interest to the KDR the second time it assigned title to Woods. While notifying the KDR of a security interest is a method of perfecting a lien on a vehicle, it is only meant to perfect the lien until the certificate of title is issued. Beneficial Finance, 12 Kan. App. 2d at 151. Allowing it to be a method of perfection beyond this period would again diminish the reliability of a certificate of title. Of course, had Mid American filed a notice of security interest with KDR, that agency might have caught the county’s mistake. This is a fact for consideration in determining the extent of each party’s negligence in causing the plaintiffs damages.
As the holder of an unperfected security interest, Mid American cannot now recover from bona fide purchasers. K.S.A. 1990 Supp. 84-9-301(1)(c). Since Mid American cannot recover the vehicle from subsequent purchasers, Mid American has been damaged.
Next we turn to whether the KDR was a proper party to this suit. Mid American sued the State of Kansas by and through the Kansas Department of Revenue. The docket sheet shows that the State of Kansas was served on March 13, 1989.
The State can be sued. K.S.A. 75-6102(c); K.S.A. 75-6103. “State” is defined for this purpose as “the state of Kansas and any department or branch of state government.” K.S.A. 75-6102(a). This definition has been interpreted to mean that, unless a statute specifically provides otherwise, a subordinate government agency does not have the capacity to be sued. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). Here, the State of Kansas was sued and served with process. While the KDR may not be able to be sued alone, it may be sued in conjunction with the State.
Finally, the KDR appeals the language used in the court’s journal entry. It argues that the court erred when it left out the word “sole” in the first sentence of paragraph 20 of the journal entry, which should have read, “The [sole] efforts made by the plaintiff to enforce its alleged security interest consist of: . . . .” The KDR alleges there were telephone conversations regarding this version and the trial court rejected the language. However, there is no evidence of this in the record.
“ ‘The burden is upon the appellant to designate a record sufficient to present its points to the appellate court and to establish the claimed error.’ ” Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 399, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988). In any event, we do not see how this change harmed the KDR.
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Gernon, J.:
In this consolidated appeal, the Kansas State Bank and Trust Company (KSBT) appeals from the trial court’s denial of its motion to set aside three default judgments in three separate proceedings in three counties.
Earl Thomason d/b/a Thomason Oil Company (Thomason) owned a working interest in oil and gas leases in Ellis, Rooks, and Stafford counties. In 1981, Thomason mortgaged these interests to the Hays State Bank (HSB). KSBT was a participant in these loans.
In 1986, Thomason assigned his interests in the oil and gas leases to KSBT and HSB. Also in 1986, HSB was closed, and the FDIC subsequently assigned the Thomason mortgages to General Financial Services, Inc., which assigned the mortgages to Petro Search & Development. Producers Equipment Sales, Inc., (Producers) was the operator of the leases at all relevant times.
Producers filed mechanics’ liens against the property, equipment, and leases in April of 1988. Producers sought to foreclose its lien in Ellis County in August of 1988. Producers asked the court to find that the liens were superior to any claims of the various defendants and to grant a money judgment in the amount of $6,453.33 plus interest for “labor performed and materials furnished.” The petition also stated that “charges continue to accrue for labor and materials.” Identical petitions, with different leasehold descriptions and amounts prayed for, were filed in Rooks and Stafford counties.
The amounts sought were $6,453.33, $815.43, and $14,362.12 in the three petitions in Ellis, Stafford, and Rooks counties respectively.
KSBT failed to answer and judgment was ultimately entered against KSBT in each case. The amounts of the money judgments entered were $19,490.57 in Ellis County; $2,129.03 in Stafford County; and $42,275.06 in Rooks County.
KSBT was served the petitions, bu.t chose to ignore them, concluding that they were mechanic’s lien foreclosure petitions. Arnold Gray, President of KSBT, concluded that the petitions did not seek money damages against KSBT; that, in any case, any interest of KSBT in the leases was of no value; and that he did not want to expend resources to answer the petitions.
KSBT’s receipt of the petitions in August of 1988 was the only notice it received of any kind concerning the lawsuits until November of 1989, when KSBT received a letter from counsel for Producers demanding payment of its purported judgments against KSBT.
KSBT then filed motions to set aside the default judgments entered in each of the three counties pursuant to K.S.A. 60-255(b) and 60-260(b). Counsel for the parties agreed to be bound in all three cases by the decision of the trial court in the Ellis County case. The trial court denied KSBT’s motion in the Ellis County case. KSBT appealed the ruling in each case, and the appeals are consolidated here.
On appeal we must determine: (1) whether the trial court abused its discretion by refusing to set aside the default judgments based upon mistake, inadvertence, or excusable neglect; (2) whether the default judgments are void because the petitions did not provide adequate notice that a money judgment was sought; and (3) whether, if the judgments are not void, they are voidable in whole or in part because they granted relief not requested or because they did not comply with Supreme Court Rule 118(d) (1990 Kan. Ct. R. Annot. 102).
Abuse of discretion
KSBT asserts that the trial court abused its discretion by refusing to set aside the default judgments pursuant to K.S.A. 60-260(b)(1) based on its claim of excusable neglect. KSBT contends that the conduct of Gray did not amount to reckless indifference, and, thus, the trial court erred by refusing to set aside the default judgment. KSBT contends that its default was “induced by the actions of Producers in first advising KSBT it would be filing a foreclosure suit and then virtually burying a vaguely worded and unarticulated contract claim in the middle of the petitions.”
At the conclusion of the hearing on KSBT’s motion, the trial court made the following finding on this issue:
“So I guess we are down to the question of excusable neglect and meritorious defenses. I simply can’t find any excusable neglect. You are a year and three months late in coming in here and doing anything about this. And your excuse is that some lay person looked at the petition and said it prayed for in rem relief only. And that is obviously not the case.”
“In determining whether to set aside a default judgment, a court should resolve any doubt in favor of the motion so that cases may be decided on their merits.” Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989), cert. denied 110 S. Ct. 2173 (1990).
However, a decision to grant relief from a default judgment rests within the trial court’s discretion and will only be disturbed upon a showing of abuse of discretion. Bazine State Bank, 245 Kan. at 495.
Discretion is abused when no reasonable person would agree with the trial court. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
The court looked at the following portions of Producers’ petition when making its determination:
“6. That plaintiff Producers Equipment Sales, Inc., entered into an agreement with the defendants, Earl L. Thomason d/b/a Thomason Oil Co., Kansas State Bank & Trust Co., and Federal Deposit Insurance Corporation, for the performance of labor and furnishing materials in the course of operation of an oil and gas well or wells located on the above-described oil and gas leases, all to the benefit of said Defendants.
“7. That plaintiff, Producers Equipment Sales, Inc., performed labor and furnished materials on said oil and gas leases, and that the amount due for the labor performed and materials furnished to said oil and gas leases remaining unpaid is $6,453.33 plus interest and that charges continue to accrue for labor and materials.
“10. That plaintiff, Producers Equipment Sales, Inc., will incur additional monthly operating expenses attributable to the interests of defendants Earl L. Thomason d/b/a Thomason Oil Co., Kansas State Bank & Trust Co., and Federal Deposit Insurance Corporation, in and to said oil and gas leases and that said plaintiff claims a continuing lien against said interests.
“WHEREFORE, plaintiff prays that all liens and claims of the plaintiff Producers Equipment Sales, Inc., be adjudicated as first and prior liens against the interests of the defendants, Earl L. Thomason d/b/a Thomason Oil Co., Kansas State Bank & Trust Co., and Federal Deposit Insurance Corporation, and judgments against defendants in the amounts stated herein.”
We agree with the trial court’s finding that the petition stated a claim for a money judgment. Apparently Gray simply examined the petition and concluded it sought only foreclosure of the liens without seeking legal counsel or further information from Producers. KSBT has failed to demonstrate that no reasonable person would find that its conduct was not excusable neglect.
Adequate notice
KSBT states that the default judgments were void because the petitions did not contain adequate notice that a money judgment was sought. Specifically its motion contended:
“Arnold Gray, President of defendant Kansas State Bank and Trust Company believed plaintiffs Petition sought only to adjudicate the parties’ rights and priorities in the oil and gas leases. He did not believe plaintiff made any claims for a money judgment against the Bank in the Petition. The Bank decided not to defend any interest in the leases because such interests had no value.”
The Kansas Supreme Court has stated:
“[A] judgment is not void merely because it is erroneous or because some irregularity inhered in its rendition. It is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process.” Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976).
KSBT concedes that Kansas has adopted the principles of “notice pleading.” K.S.A. 1990 Supp. 60-208 contains the “general rules of pleadings” and provides in part:
“(a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain: (1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which the pleader deems such pleader’s self entitled. . . .
“(e) ... (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”
In Rinsley v. Frydman, 221 Kan. 297, 301-02, 559 P.2d 334 (1977), the Kansas Supreme Court noted, “There is no requirement to state facts sufficient to constitute a cause of action. [Citation omitted. ] All the rules require is a short and plain statement of a claim that will give the defendant fair notice of what the plaintiffs claim is and the ground upon which it rests.”
Our reading of the petition leads us to agree with the trial court’s conclusion that the petition provides adequate notice that a contract claim was being asserted by Producers. Paragraph No. 6 of the petition alleges Producers “entered into an agreement with the defendants, . . . Kansas State Bank & Trust Co.” The same paragraph provides a summary of the nature of the agreement “for the performance of labor and furnishing materials in the course of operation of an oil and gas well or wells.” Paragraph No. 7 of the petition alleges Producers’ performance under the agreement and lists an unpaid balance. The following paragraphs indicated the existence of a mechanic’s lien and sought its foreclosure. Finally, the prayer for relief, seeking judgment for the unpaid balance listed in Paragraph No. 7, alleges a breach of the agreement.
KSBT contends that a letter from Producers’ attorney to KSBT is relevant to Gray’s action upon receiving the petition. KSBT reads the letter to be an acknowledgment that no agreement existed between Producers and KSBT. However, KSBT cites no authority for the proposition that it was entitled to rely upon the letter as a means of interpreting the petition, nor does Gray’s affidavit allege that the letter influenced his interpretation of the petition. The letter could conceivably be interpreted to be a demand for payment or satisfaction and notice that KSBT was legally obligated to pay certain operational costs. Neither the record in this case, nor a reading of the letter, sufficiently supports KSBT’s assertion that this letter somehow justifies a failure to respond to the petition. .
Next, KSBT contends that the petitions did not contain separate counts for these two types of relief as required by statute.
K.S.A. 60-210(b) provides in part: “Each claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count or defense.”
We reject KSBT’s objection. The foreclosure and the contract claims are both founded upon the same transaction or series of transactions and, therefore, K.S.A. 60-210(b) has no relevance insofar as a basis of objection.
Are the judgments voidable?
We find merit in KSBT’s argument that the default judgments are voidable in part because they grant relief in excess of the amounts requested by the petitions. KSBT forwards two theories for granting relief. The first is to be found in K.S.A. 1990 Supp. 60-254(c), which is identical to Federal Rule of Civil Procedure 54(c). The other basis concerns the entry of default judgment on claims for unliquidated damages, specifically Supreme Court Rule 118(d).
K.S.A. 1990 Supp. 60-254(c) provides in part:
“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. . . . Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in such party’s pleadings.”
Each of the judgments was in an amount far greater than the amount prayed for in the petition. As a result, the default judgments against KSBT violate the provisions of K.S.A. 1990 Supp. 60-254(c) by granting judgment in excess of the amount of the petition’s demand for judgment.
The federal courts have considered default judgments which exceed the demand for relief in several cases. Generally, the federal courts have concluded that such a judgment should be vacated or considered void to the extent of the excess. See Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1031 (5th Cir. 1982), reh. denied 702 F.2d 81, cert. denied 464 U.S. 818 (1983) (applying California law, excess portion of judgment is subject to collateral attack and enforcement of the judgment should be limited to the amount in the complaint); Compton v. Alton Steamship Co., 608 F.2d 96, 107 (4th Cir. 1979)(remanded with instructions to vacate portion of the judgment which the complaint did not establish); Fong v. United States, 300 F.2d 400, 414 (9th Cir.), cert. denied 370 U.S. 938 (1962) (trial court properly granted motion to delete damages not within the complaint); Pueblo Trading Co. v. El Camino Irr. Dist., 169 F.2d 312, 313 (9th Cir. 1948) (part of order was beyond scope of complaint; “to that extent the judgment, being by default, was a nullity”); Marina B Creation S.A. v. de Maurier, 685 F. Supp. 910, 913 (S.D.N.Y. 1988)(rejecting portion of Magistrate’s report that includes damages beyond the petition); Growth Properties, Inc. v. Klingbeil Hold. Co., 419 F. Supp. 212, 220-21 (D. Md. 1976)(after default judgment as to liability, refusing to allow amendment of complaint to include new items of damages).
Wright, Miller & Kane, Federal Practice and Procedure, contains an extensive discussion of the reasons for Rule 54(c), which includes:
“The theory of this provision is that once the defending party receives the original pleading he should be able to decide on the basis of the relief requested whether he wants to expend the time, effort, and money necessary to defend the action. It would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should he attempt to limit the scope and size of the potential judgment against him by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award. ... In sum, then, a default judgment may not extend to matters outside the issues raised by the pleadings or beyond the scope of the relief demanded. A judgment in a default case that awards relief that either is more than or different in kind from that requested originally is null and void.” 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2663 (1983).
In addition, a number of other jurisdictions have rules which are identical or nearly identical to the Kansas and federal rule. Some of these jurisdictions follow the theory that only the excess portion of the judgment should be disturbed. See, e.g., Metropolitan Life Ins. Co. v. Welch, 202 Cal. 312, 315, 260 P.2d 545 (1927)(relief granted beyond the scope of complaint is subject to collateral attack); Orkin Exterminating v. Townsend, 136 Ga. App. 50, 53, 220 S.E.2d 14 (1975)(portion of judgment beyond scope of complaint is to that extent a nullity); Park Ave. Lumber v. Nils A. Hofverberg, Inc., 76 Ill. App. 2d 334, 349, 222 N.E.2d 49 (1966)(affirming trial court’s order of modification to set aside the portion of the judgment which was beyond the scope of the complaint); Hopkins v. Hopkins, 266 S.C. 23, 27-28, 221 S.E.2d 113 (1975)(“that portion” of decree which was beyond the requested relief cannot be enforced through contempt proceedings).
However, other jurisdictions have concluded that such a judgment is void in its entirety or is required to be set aside upon request. See, e.g., Continental Casualty Company v. Barlar, 55 Ala. App. 441, 443, 316 So. 2d 690 (1975)(“an indivisible judgment is void in its entirety and must be set aside upon motion”); Oaks v. Grocers Wholesale, Inc., 377 P.2d 1001, 1003 (Alaska 1963)(reversed and remanded with directions to set aside the default judgment); Kohlenberger v. Tyson's Foods, 256 Ark. 584, 592, 510 S.W.2d 555 (1974)(defect is “fatal” and judgment “must be reversed”); Sceva Steel Bldgs., Inc. v. Weitz, 66 Wash. 2d 260, 263, 401 P.2d 980 (1965)(affirming an order setting aside the judgment because such judgments are “void”).
This case may be distinguished from the case of Sweetser v. Sweetser, 7 Kan. App. 2d 463, 643 P.2d 1150 (1982), in which the trial court granted termination of parental rights when such termination was not requested. In Sweetser, this court stated that, under 60-254(c), this type of order was clearly improper in a default setting. 7 Kan. App. 2d at 465.
We conclude that the better practice, where the petition is clear on its face and where there is no clear showing of excusable neglect, is to follow the federal rule which makes void the amount in excess of the petition.
The Fifth Circuit in Fehlhaber, citing Becker v. S.P.V. Construction Co., 27 Cal. 3d 489, 493-94, 612 P.2d 915, 165 Cal. Rptr. 825 (1980), in referring to Section 580 of the Cal. Civ. Proc. Code Ann., which is identical to Rule 54, stated that the section is:
“ ‘designed to insure fundamental fairness’ through notice to the defaulting party of the amount of the judgment that may be taken against him. [Citation omitted.] One aspect of fundamental fairness ... is ‘that defaulting defendants should not be subject to damages in excess of an amount specifically set out in the complaint.’ ” 681 F.2d at 1025.
We must then focus our concern on the provisions of the petitions to discern whether the language of the petitions and the record would allow judgment in an amount greater than the amount stated in the petition.
The petitions each ask for a specific amount of money damages “plus interest” and further state that “charges continue to accrue for labor and materials.” Also, the petitions state that Producers “will incur additional monthly operating expenses.”
The question then becomes whether this language provided sufficient notice to KSBT to allow the court to grant judgment in an amount greater than the specific amounts mentioned in the petitions.
The record on appeal provides no record of any hearing or proof of notice to KSBT or of what evidence was available to the trial court, other than a journal entry presented for signature, to provide a basis for judgment other than that prayed for specifically in the petition.
In Fehlhaber, the Fifth Circuit voided the excess judgment granted above an amount stated in the petition, concluding that the general prayer that “property rights be determined” and that the court “render such judgments as are appropriate” did not meet the minimal standards of specific notice. 681 F.2d at 1025.
In the case before us, while there was reference to ongoing charges, we conclude that these references did not provide specific notice, when coupled with lack of notice of default and a record lacking in evidence of a basis for judgment in excess of the specific amount prayed for in the petitions.
KSBT argues that the judgments were voidable because Producers failed to comply with Supreme Court Rule 118(d) concerning entry of default judgment on a claim for unliquidated damages. Rule 118(d) states:
“Before any default judgment is taken in any action contemplated by this rule, the party seeking relief must notify the party against whom relief is sought of the amount of money for which judgment will be taken. Said notice shall be given by certified mail, return receipt requested, or as the court may order, at least ten (10) days prior to the date judgment is sought. Proof of service shall be filed and submitted to the court.” (1990 Kan. Ct. R. Annot. 102).
The record shows that after the original petitions were served, no additional notice, nor any journal entry, was sent to KSBT. This court has previously stated that the “provisions of Rule 118(d) apply when default judgment is sought on any pleading of unliquidated damages.” Winner v. Flory, 11 Kan. App. 2d 263, 265, 719 P.2d 20 (1986). The failure to comply with Rule 118(d) renders a default judgment voidable. Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 302, 720 P.2d 1121 (1986).
“A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computa tion.” Plains Resources, Inc. v. Gable, 235 Kan. 580, 583, 682 P.2d 653 (1984); First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 537, 562 P.2d 32 (1977).
In this case, we are dealing with a claim for both liquidated and unliquidated damages. The specified sums recited in the petitions represent liquidated damages. The claims for future or continuing services constitute unliquidated damages at the time the petitions were filed.
Rule 118(d) is interpreted as applicable to any damage claim which is unliquidated at the time the petition is filed. See Winner v. Flory, 11 Kan. App. 2d at 266.
To read the rule otherwise would make it meaningless, because all damage claims are necessarily liquidated at the time a judgment is entered. The purpose of Rule 118(d) is “to inform the other party of the amount sought before the party seeking default judgment may recover.” Winner v. Flory, 11 Kan. App. 2d at 266. Producers concedes that KSBT was not given any actual notice of any continuing charges.
Although we concluded in Winner that the appropriate remedy was to set aside the default judgment, it must be noted that the judgment in Winner was based entirely upon a claim for unliquidated damages. 11 Kan. App. 2d at 266.
In this case, since the petitions clearly sought liquidated damages, with unliquidated damages allowed at the time of judgment, and since we have already concluded that the amount of the judgment in excess of the amount in the petition should be vacated, we further conclude that the amount of the unliquidated damages, which is the excess above the amount prayed for in the petition, should be set aside. These amounts are the same.
We, therefore, affirm those parts of the trial court’s ruling which denied the setting aside of the default judgments so far as the amount prayed for in each petition. We reverse and remand with directions that the trial courts vacate the amount of the judgment in each case which is in excess of the petition and, further, direct that the rates of interest as ordered by the trial courts at 18% are hereby void. The rate of interest on a judgment is fixed by statute unless an agreement by the parties provides for a different rate. The trial courts’ award of an 18% interest rate exceeded the relief requested by the petition and the rate of interest authorized by statute.
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Lewis, J.:
This appeal is taken by Robert McNeely from the orders of the district court which increased his child support obligation and denied him certain requested changes in visitation with his children. The appellee is Julie McNeely, who was formerly married to Robert. There were two children born to that marriage. It is the support of and visitation with these two children that is the focus of this appeal.
Upon a careful review of the record and the issues, we affirm.
The trial court had before it competing motions to modify the original monthly child support award of $364. Julie asked the court to increase it, while Robert asked the court to reduce it. Robert also complained about difficulty which he and his parents were having in exercising visitation rights with the children. As might be expected, Robert blames Julie for the visitation problems, and Julie blames Robert.
The court held an evidentiary hearing into the matters raised by the parties’ motions. The court heard the testimony of both parties giving their version of the relevant facts. After hearing the evidence, the trial court determined that Robert’s share of the child support, computed under the Kansas Child Support Guidelines (Administrative Order No. 75 [1990 Kan. Ct. R. Annot. 56-75]), was $656 per month. The court also adjusted the visitation schedule of the parties.
Julie testified that she was a student at the University of Kansas and was working towards a degree in social welfare. She testified that she hoped to complete that degree in the summer of 1991 and become employed. She stated that her domestic gross income was $750 per month and that income consisted of student loans and grants. She also testified that she received ADC in the amount of $409 per month and had assigned her child support to SRS. Her testimony indicated that, out of her student loans and grants, she paid tuition and book expense of approximately $1,550 for each fall and spring semester. Apparently, Julie was not employed at a conventional job and listed no income by way of wages.
Robert testified that he had remarried since the parties’ divorce, that his current wife was employed, and that he and his wife were residents of the State of Florida. Robert testified that he was employed and was earning $2,000 per month at the time of the hearing. However, Robert also testified that he planned to enter law school in the State of Florida and that when he did so, the income from his job would be reduced to $1,000 per month for the nine months he would be attending law school.
One of the principal issues on this appeal is whether the trial court erred in considering child care costs in its award of child support. Julie testified that she had child care costs incurred in attending KU of $606 per month during the fall and spring semesters. She testified that, during the summer break from school, child care costs were $50 per week. When these child care costs were annualized over a 12-month period, they result in monthly child care costs of $521.
Robert testified that, in his opinion, his child support obligations should be a maximum of $158 per month. He also strongly objects to the allowance of child care costs to Julie, since she was neither employed nor searching for a job, but was a full-time student.
There was considerable testimony concerning the difficulties that Robert and his parents had in visiting with the children. We will not recount this testimony to any extent except as is necessary to resolve those specific issues.
Robert raises a number of issues, and we shall treat each issue separately.
VISITATION ALLOWED TO ROBERT
As indicated, there was testimony that Robert and Julie were unable to agree upon a visitation schedule with the children. Robert also testified that his parents had been denied visitation with the children. Robert testified that he felt he should have the children with him for three months during the summer, beginning immediately, and one month during the winter. Julie, on the other hand, testified that, given the ages of the children and the fact that they have been separated from their father for some time, three to six weeks’ visitation would be the maximum she felt the children would be able to handle.
It is clear that a trial court’s order regarding visitation will not be reversed on appeal if it is supported by substantial competent evidence. See Miracle v. Miracle, 208 Kan. 168, 490 P.2d 638 (1971). The standard of review enunciated quite clearly in Simmons v. Simmons, 223 Kan. 639, 576 P.2d 589 (1978), applies equally to change of custody and child visitation situations:
“ The question of a change of custody is addressed to the sound judicial discretion of the trial court and the appellate court’s review of the trial court's determination is very limited. [Citation omitted.] The trial court is in the most advantageous position to judge how the interests of the children may best be served. [Citations omitted.] While an appellate court has only the printed page to consider, the trial court has the advantage of seeing the witnesses and parties, observing their demeanor, and assessing the character of the parties and quality of their affection and feeling for the children. [Citation omitted.] The judgment of the trial court will not be disturbed without an affirmative showing of an abuse in the exercise of discretion.” 223 Kan. at 643.
The trial court, after hearing the evidence and observing the parties, concluded that the children were too young to be away from the stable environment of their home with their mother for the period of time requested by Robert. The evidence indicated that Robert had not seen the children for some period of time. The trial court concluded that Robert’s parents lived in the vicinity of Lawrence, Kansas, and that he could combine visits with his parents to coincide with visits with the children for the first year. The trial court then provided that, beginning in the summer of 1991, Robert should have visitation with the children during the month of July and that he should have a winter visit with the children during the month of January, beginning in 1992.
We hold that the trial court’s order regarding visitation is supported by substantial competent evidence, and we affirm that order. There is considerable evidence in the record to indicate that the order entered by the trial court is in the best interests of the children of the parties, and we see no reason to disturb that order.
Robert attempted to question Julie about her denial of visitation to Robert’s parents. The trial court ruled that this evidence was irrelevant, refused to hear it, and refused to allow a proffer to be made of that evidence. Robert complains about the trial court’s ruling in regard to this evidence. We have reviewed the record and find that the trial court, in fact, heard Robert’s testimony that Julie had made it difficult for him to live in Kansas and that she had prohibited visitation by his parents. There is no abuse of discretion in a court not allowing testimony to be further developed where the essentials of the testimony are known and there is no indication that further evidence would have been helpful to the court. McClaren v. McClaren, 214 Kan. 217, 218-19, 519 P.2d 720 (1974). The testimony by Julie, which the court refused to hear, would have been merely cumulative, and there is no indication that that evidence would have been helpful to the court. We hold the trial court did not abuse its discretion in refusing to allow Robert to cross-examine Julie as to evidence which had already been made available to the trial court.
DID THE TRIAL COURT ERR IN DETERMINING THAT FULL-TIME INCOME SHOULD BE IMPUTED TO ROBERT?
Robert testified that he was earning $2,000 per month at the time of the hearing. However, he advised the court that he planned to enter law school and that, when he did, he would work part-time for $1,000 per month.
The trial court found that “[t]he Respondent has the ability to earn and is earning $2000.00 monthly; thus, in any event, the Respondent’s gross monthly income is determined to be $2000.00 actual or imputed.” Robert complains about the trial court’s findings concerning his income. He argues that the court should have used his actual annualized income of $1,250 per month. We disagree. We have examined the record and find that, at the time of the hearing, Robert was employed full time. He was not enrolled in law school, and his income was $2,000 per month. As a result, the finding of the trial court quoted above is supported by the record and is correct. If Robert’s income is reduced substantially at any time in the future, his remedy is to file a motion for appropriate relief.
We further believe that, even if Robert entered law school and lowered his income, the court could properly impute $2,000 per month income to him. Under the child support guidelines, income may be imputed to the noncustodial parent in appropriate circumstances. Administrative Order No. 75, Section II.,E.,1 (1990 Kan. Ct. R. Annot. 58).
The trial court found:
“It is only just that the Respondent forego his quest for additional education at least until the Petitioner has had the opportunity to obtain her undergraduate degree. When parties are parents of children of tender years, they are required to care for those children to the best of their ability, even though sacrifices must be made.”
We agree with those sentiments echoed by the trial court. It is possible that Robert may have to put off his attendance at law school until the mother of his two children has graduated and received her undergraduate degree. It seems to us that this is clearly in the best interests of the children, and, although it may be some sacrifice to Robert, such sacrifices are often required by parents of children of tender years.
Robert was earning $2,000 per month at the time of the hearing, and it is questionable whether he should be allowed to voluntarily reduce his income by attending law school so that his support obligation could be reduced. Courts have been reluctant to allow this. See Elrod, Kansas Child Support Guidelines: An Elusive Search for Fairness in Support Orders, 27 Washburn L.J. 104, 131-32 (1987) (citing Guinn v. Guinn, 405 So. 2d 620 [La. App. 1981]; Beal v. Beal, 290 N.C. 669, 228 S.E. 2d 407 [1976]; Roberts v. Bockin, 315 Pa. Super. 52, 461 A.2d 630 [1983]).
The trial court found that Robert was earning $2,000 per month at the time of the hearing and had the ability to continue to earn $2,000 per month and used this figure to calculate the support obligation. This was not an abuse of discretion, and we affirm the trial court’s action in this regard.
CHILD CARE COSTS
In determining the proper amount of child support to be awarded in this case, the trial court attempted to follow the Kansas Child Support Guidelines. We have held that, where they apply, these guidelines must be followed in computing child support orders in this state. In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, 506-07, 809 P.2d 1251 (1991). We view the instant matter as one where the guidelines are not applicable under the facts.
The basic child support obligation computed in the case under consideration was $524 per month. The trial court added to that figure $521 per month for child care costs. The total monthly child support so computed was $1,045. Robert’s share of the total monthly child support was 76%, which amounted to $794. The trial court then gave Robert credits of $138, reducing his net monthly child support obligation to $656.
Robert is particularly upset that the trial court awarded child care costs under the facts of this case. He argues that such costs are not permitted under the guidelines because Julie was not employed and was not searching for a job. Robert argues that the trial court abused its discretion in awarding child care costs to an unemployed student.
This is an issue of first impression in Kansas, and our research has revealed no decisions of sister states to assist us.
We begin our discussion by noting that the guidelines are being treated in this case as if they were absolutely controlling. The argument is made that, if the child care costs do not fit the guidelines chapter and verse, they simply cannot be awarded. We are of the view that, in this case, the significance of the guidelines has been inflated far beyond what was intended by the Supreme Court.
Our standard of review in cases of this nature remains abuse of discretion. The guidelines have not changed the basic nature of our review:
“ The standard of appellate review applicable to an appeal from a trial court’s order determining the amount of child support is whether the trial court abused its discretion. [Citation omitted.] Judicial discretion is abused when action is arbitrary, fanciful, or unreasonable, which is another way of saying discretion is abused when no reasonable person would take the view adopted by the trial court. [Citation omitted.]” In re Marriage of McPheter, 15 Kan. App. 2d 47, 48, 803 P.2d 207 (1990).
See Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
In viewing the trial court’s decision in the light projected above, we are unable to conclude that the award of child care costs in this case was an abuse of discretion. This review is made quite independently of the guidelines and does not depend, in the least, on their existence or nonexistence. We are of the view that trial courts of this state have always had the authority to award child care costs as an element of child support and this authority does not depend upon the guidelines for legitimacy. It springs from the inherent power of the court to enter whatever order it deems is in the “best interests of the children.” This inherent power comes from the legislative grant set forth in K.S.A. 1990 Supp. 60-1610(a), in which the legislature has granted the courts of this state power to order proper child support and has said: “In determining the amount to he paid for child support, the court shall consider all relevant factors, without regard to marital misconduct, including the financial resources and needs of both parents, the financial resources and needs of the child and the physical and emotional condition of the child.” (Emphasis added.)
There is ample authority from the legislative grant of power to award child care costs notwithstanding the provisions of the guidelines.
We intend to deal with Robert’s argument concerning the terms of the guidelines. However, we initially hold that it was within the discretion of the trial court to make the order in question. We find no grounds to conclude that such discretion was abused.
The guidelines have a provision concerning work-related child care costs. That provision is set forth in Administrative Order No. 75, Section V.,D.,5 (1990 Kan. Ct. R. Annot. 64):
“Actual, reasonable, and necessary child care costs incurred to permit employment or job search of a parent should be added to the support obligation. The monthly figure is the averaged annual amount, including variations for summer, adjusted using the table below. Projected child care expenses should be reduced by the anticipated tax credit for child care before an amount is entered on the Worksheet.”
The first question that comes to mind is whether this statement is all-inclusive. That is to say, may child care costs be awarded only when the custodian of the children is employed in the usual sense or is looking for a job in the conventional sense? We think that question must be answered in the negative. The guidelines are, after all only guidelines. They do not purport to cover every conceivable situation and do not provide an answer to every conceivable question. The Supreme Court, in enacting these guidelines, did not intend to supersede K.S.A. 1990 Supp. 60-1610, nor can these guidelines be held to render a trial judge powerless to make awards based on “all relevant factors.” The case at bar may not fit the guidelines with preciseness and exactness. Julie is simply not employed as that term is generally used. Yet, without some help with child care costs, her future employment may be tied to the minimum wage.
We are persuaded that, where a case falls factually outside the child support guidelines, those guidelines do not limit the authority of the court. Under such circumstances, our review is strictly one of abuse of discretion. Insofar as the guidelines are designed to deal with the question of child care costs, we hold that this case falls outside of those guidelines. The generally accepted definition of the term used in the guidelines do not fit the facts here. That does not mean that child care costs may not be awarded in any event. It simply means that the definition used in the guidelines is irrelevant to a determination of whether the court abused its discretion. Those provisions of the guidelines dealing with tax credits and the like are applicable, should be applied, and were applied by the trial judge in this case.
We affirm the decision of the district court awarding child care costs. We see no abuse of discretion.
In reaching its decision, the trial court held that Julie had taxable income of approximately $750 per month. This income was, according to Julie’s testimony, from student loans and grants. Robert alleges that these sources of income are not taxable. While we are not absolutely convinced that some of Julie’s student grants are not taxable income, by and large we agree that it stretches the definition of taxable income to include within it student loans. We are even willing to go so far as to agree with Robert that the trial court erred in this conclusion. However, this does not change our decision. In Salem v. Salem, 214 Kan. 828, 832, 522 P.2d 336 (1974), the court, in discussing 60-1610(b) concerning property division, stated:
“Many factors may be considered in reaching a decision which satisfies the statutory requirement of ‘just and reasonable. ’ [Citations omitted. ] The fact the trial court made a statement as to the law which might be considered erroneous does not affect the validity of a judgment which otherwise satisfies the statutory directive.”
Thus, even though the court may have mischaracterized Julie’s income as taxable, it does not affect the validity of the judgment. The judgment clearly satisfies the directive of K.S.A. 1990 Supp. 60-1610(a)(1), and we affirm it.
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Brazil, J.:
Wichita Computer & Supply, Inc., (Wichita Computer) appeals entry of judgment in favor of Mulvane State Bank (Bank) in a declaratory action involving the applicability of K.S.A. 84-3-406 in an action concerning an unauthorized drawer’s signature. We reverse and remand with directions. .
The facts are not in dispute. Wichita Computer maintained a checking account at Bank. In 1986, Wichita Computer’s bookkeeper obtained checks without authority, made the checks payable to herself through a “dummy” business by forging Wichita Computer’s president’s signature, and deposited the checks in her bank. The bookkeeper had unsupervised full access to and responsibility for all financial functions of Wichita Computer. Over a period of eight months, eleven forged checks totaling $37,089.70 were paid from the account. The first two forged checks were paid by Bank prior to Wichita Computer receiving the monthly bank statement containing any of the forgeries. The first notice provided by Wichita Computer to Bank of specific forged checks designated by check number and amount occurred by letter dated March 20, 1987.
Upon noticing the forged checks, Wichita Computer demanded to have its account credited with the amount of the checks, relying on K.S.A. 84-4-401(1) (checks not properly payable) and on K.S.A. 84-4-406(3) (lack of ordinary care in paying the items). Bank’s refusal to credit the account was based in part on K.S.A. 84-3-406 (customer’s negligence contributing to the making of the unauthorized check).
Wichita Computer filed a civil action in 1988, which the district court dismissed without prejudice at Wichita Computer’s request. K.S.A. 60-241(a)(2). Wichita Computer then filed a declaratory action seeking to determine the applicability of K.S.A. 84-3-406. The district court granted judgment for Bank, finding that “defendant should be allowed to pursue at trial defenses under both K.S.A. 84-4-406 and K.S.A. 84-3-406.”
As phrased by Wichita Computer, the issue on appeal is “[w]hether the district court erred in holding that a bank which is liable to its customer if bank lacked ordinary care in paying checks over unauthorized signatures may shift that loss to its customer under K.S.A. 84-3-406.” In short, should Bank be allowed to use K.S.A. 84-3-406 as a defense?
However, based on its brief and oral argument, what Wichita Computer sees as the real conflict between the statutes is that, under K.S.A. 84-3-406, Bank must establish that it acted in a commercially reasonable manner and, under K.S.A. 84-4-406, the customer has to establish that Bank failed to act in a commercially reasonable manner. Therefore, if both K.S.A. 84-4-406 and K.S.A. 84-3-406 are allowed to be raised in the same action, the question is which party has the burden of proving the commercial reasonableness of Bank’s action. For whatever its reason, the trial court did not decide the burden of proof issue; the journal entry only indicated that both statutes may be argued — not who has the burden of proof.
This same issue (applicability of K.S.A. 84-3-406/burden of proof) was submitted to the trial court in the 1988 civil action, apparently about one week before the trial was scheduled to begin. The judge in that case refused to give Wichita Computer a ruling until after the presentation of evidence, prompting Wichita Computer to dismiss that case without prejudice and file the instant declaratory judgment action.
Based upon this procedural background, this panel has, on its own motion, raised the question of whether the district court abused its discretion by entertaining this declaratory judgment action.
In order to entertain an action for declaratory judgment, there must be an “actual controversy.” K.S.A. 60-1701. Implicit in this requirement is that Kansas courts “will not render advisory opinions on abstract or moot questions of law.” 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-1701 (1979). See Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978); 22A Am. Jur. 2d, Declaratory Judgments §§ 33, 38.
Whether a dispute rises to the level of an actual controversy is one of degree, and the entertainment of the action rests within the discretion of the trial court. Mechling Barge Lines v. U.S., 368 U.S. 324, 331, 7 L. Ed. 2d 317, 82 S. Ct. 337 (1961) (declaratory relief “committed to judicial discretion”); Md. Casualty Co. v. Pacific Co., 312 U.S. 270, 273, 85 L. Ed. 826, 61 S. Ct. 510 (1941) (difference between abstract question and controversy is one of degree). “Such discretion, however, is not unlimited. The Court must exercise ‘sound’ discretion [citation omitted] in accordance with the purposes of the Declaratory Judgments Act.” Ohio Cas. Co. v. Jackson County Bank, 562 F. Supp. 1165, 1167 (W.D. Wis. 1983). The exercise of discretion by the trial court will not be disturbed on appeal absent a clear showing of abuse of discretion. Duggins v. Hunt, 323 F.2d 746, 748 (10th Cir. 1963); 22A Am. Jur. 2d, Declaratory Judgments § 17, p. 684.
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court. If reasonable [persons] could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
“ ‘The two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ” 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2759, pp. 647-48 (1983).
See 22A Am. Jur. 2d, Declaratory Judgments § 39. Declaratory judgments “should not be accorded ... to try a controversy by piecemeal, or to try particular issues without settling the entire controversy.” Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937). See also Ohio Cas. Co. v. Jackson County Bank, 562 F. Supp. at 1169 (declaratory judgments “must not be used to resolve only particular issues without settling the entire controversy”); Aetna Casualty & Surety Co., 92 F.2d at 324 (declaratory judgments should not be used “for the purpose of anticipating the trial of an issue in a court of co-ordinate jurisdiction”).
Kansas law is clear that a declaratory action is not a proper “avenue for relitigation of a legal issue already decided by a tribunal in which an actual controversy is still pending and from which an orderly appeal process may be pursued.” Ratley v. Sheriff's Civil Service Board, 7 Kan. App. 2d 638, 640, 646 P.2d 1133 (1982). This is true of questions relating to the burden of proof regarding issues in a pending suit. 26 C.J.S., Declaratory Judgments § 40. See also Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614, 33 S.W.2d 601 (1930) (declaratory action seeking a determination of the burden of proof filed during pendency of case is not proper). Moreover, declaratory actions cannot be used as a way of retrying matters previously litigated, 26 C.J.S., Declaratory Judgments § 23, nor used “as a substitute for ordinary actions which afford reasonably adequate remedies,” Pugh v. City of Topeka, 151 Kan. 327, Syl. ¶ 3, 99 P.2d 862 (1940).
In Chilton, the Kentucky Supreme Court, on its own motion, raised the question “whether the Declaratory Judgment Act warranted an independent action for a declaration of substantive rights and procedural rules for the government of another case then pending in a court of first instance which possessed ample power to decide all the questions raised.” 236 Ky. at 617.
In dismissing the declaratory judgment action, the court in Chilton reasoned as follows:
“[T]he purpose of the Declaratory Judgment Act was and is to guide parties in their future conduct to avoid useless litigation. . . .
“But the act was not designed, and is not suitable, for the determination of the procedural rules, or the declaration of the substantive rights involved in a pending suit. ...
“. . . The proper tribunal to determine [burden of proof] is the one that tries the case. It is sometimes a question of difficulty, and may be varied by the incidents of the case, the admissions or denials of the pleadings, and the facts developed. But the trial court can determine it. A decision of these questions on the brief statement of the general issues would afford no relief from labor or difficulty. That burden would rest upon one or the other party and is unavoidable in a lawsuit of this character. There is no short cut to avoid labor or to reach a right result in such a case. . . .
“Our decision would not settle the argument among the litigants. The other case would have to be tried, and the court could not render a final judgment without further preparation by one or the other of the litigants. . . .
“We are asked not to avoid a threatened lawsuit, but to advise on questions raised in a pending one; to decide in the appellate court in advance of a decision in the trial court, whether a cause of action exists, and in whose favor, who has the burden of proof, and when the statute of limitation begins to run.
“It cannot be maintained that this case falls within the provision that ‘any person whose rights are affected by statute, municipal ordinance, or other government regulation, may apply for or seek a declaration of his rights or duties.’ ” 236 Ky. at 618-20.
In Chilton, there was another case pending when the declaratory judgment action was filed. In the present case, the 1988 civil action was dismissed without prejudice before this action was filed. This may be a distinction without a difference in that this court can remand to the trial court with direction to dismiss the declaratory judgment action without prejudice, thus leaving Wichita Computer free to refile its original action.
Like Chilton, a decision in this declaratory judgment action will not resolve the ultimate issue between these parties (liability for the loss occasioned by the forged checks).
Also, the trial court in the damage action can and should determine procedural issues like burden of proof. Again, as noted in Chilton, the issue of burden of proof is sometimes difficult and may vary in a given case as that case proceeds, through admissions or denials in the pleadings, discovery, or as the facts are developed at trial. This may well be the reason why the judge in the 1988 civil trial refused to determine the burden of proof issues until after the presentation of evidence. A separate declaratory judgment action was not appropriate.
The most any decision by this court could affect either party would be to change a party’s understanding of the burden of proof. It will not change whether the parties proceed with a subsequent action over the substantive rights or the evidence at such a proceeding.
The declaratory judgment action was not a proper avenue for the determination of the applicability of K.S.A. 84-3-406/burden of proof issue; the court’s entertaining of the action was an abuse of discretion.
Reversed and remanded with directions to dismiss the action without prejudice. | [
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Rulon, J.:
Lynne Foster appeals from the district court judgment restoring possession of rental property to Randy Schartz, plaintiff. We affirm.
Essentially, we must decide the nature of the tenancy created by Foster’s holdover following expiration of the term of a written rental agreement and the type of notice sufficient to terminate that holdover tenancy.
The material stipulated facts are as follows:
In January 1988, Foster as tenant and Schartz as owner executed a residential rental agreement for a term of one year, from February 1, 1988, to January 31, 1989. Upon the expiration of this agreement, Foster and Schartz did not enter into another written agreement. The tenancy continued, however, with Schartz’s consent and Foster’s monthly payment of rent. The expired written agreement contained no provisions regarding a holdover by the tenant. On January 24, 1990, Schartz served notice on Foster that as of March 31, 1990, their rental agreement would be terminated. The letter stated it was a 60-day notice to vacate the rental property. On April 11, 1990, Schartz filed a petition for forcible detainer under Chapter 61 seeking the restoration of the premises to him. Foster answered, alleging the 60-day notice to vacate was legally deficient.
The parties stipulated that both the written agreement and the parties fall under the purview of the Residential Landlord and Tenant Act, K.S.A. 58-2540 et seq.
The district court ruled Schartz gave Foster legally sufficient notice to vacate the residential property and ordered Foster to vacate and restore the property to Schartz.
As we understand Fosters argument, she essentially argues that the Residential Landlord and Tenant Act (hereinafter Act), does not apply and, therefore, general landlord-tenant statutes must be applied to resolve the issue before us. Foster contends the Act lacks an applicable provision determining what type of notice is necessary to terminate a tenancy which is held over with landlord consent upon the expiration of a one-year rental agreement. The nub of her argument is that the one-year agreement, although expired, continues to fix the term of her landlord-tenant relationship at one year.
Foster relies upon K.S.A. 58-2502, which states that a tenant who holds over with landlord consent at the expiration of a one-year term becomes a tenant from year to year. K.S.A. 58-2505 provides that a tenancy from year to year may be terminated only by 30-day written notice delivered to the tenant before expiration of the year. Schartz delivered written notice to Foster on January 24, 1990, only seven days prior to the expiration of the alleged one-year holdover term on January 31, 1990. Foster claims she did not receive legally sufficient notice of termination and lawfully remains in possession of the property as a tenant from year to year.
Schartz asserts the Act controls the issue in this case. K.S.A. 58-2570(c) of the Act refers to K.S.A. 58-2545(d) as determining the nature of a tenancy held over with landlord consent upon expiration of the term of the rental agreement. K.S.A. 58-2545(d) states the tenancy is month-to-month if, upon the expiration of a rental agreement, no definite term for the tenancy has been established. K.S.A. 58-2570(b) of the Act provides that a month-to-month tenancy may be terminated by at least a 30-day written notice to the tenant. Schartz claims Foster received a 60-day written notice, and therefore she unlawfully remained in possession of the property beyond the termination date. We agree.
The written rental agreement between Foster and Sehartz which established a definite term of one year expired on January 31, 1989. No new agreement establishing a definite term was ever reached by the parties. Therefore, when Foster remained in possession and continued the tenancy with monthly rent payments, she did so without a fixed and definite term. K.S.A. 58-2545(d) is thus applicable as there is no “rental agreement fix[ing] a definite term,” and Fosters tenancy became month-to-month. According to K.S.A. 58-2570(b), the landlord may terminate a month-to-month tenancy by at least a 30-day written notice. Foster received a written notice on January 24, 1990, that the month-to-month tenancy would terminate on March 31, 1990. This 60-day notice is legally sufficient under the Act.
K.S.A. 58-2502 provides that a tenant who holds over upon the expiration of at least a one-year term with landlord consent becomes a tenant from year to year. K.S.A. 58-2505 then provides that all year-to-year tenancies other than farm tenancies may be terminated only by a 30-day written notice delivered to the tenant prior to the expiration of the year. These two statutes, however, govern landlord-tenant relationships generally and are not part of the more specific Residential Landlord and Tenant Act. “ ‘Where there is a conflict between a statute dealing generally with a subject and another dealing specifically with a certain phase of it, the specific legislation controls.’ ” Read v. Miller, 14 Kan. App. 2d 274, 276, 788 P.2d 883 (1990). Also, the Act was enacted in 1975, after the enactment of K.S.A. 58-2502 and K.S.A. 58-2505, and the pertinent portions of that Act have not been amended. See L. 1978, ch. 217, § 3. Where there is a conflict between two statutes which cannot be harmonized, the later legislative expression controls. Asay v. American Drywall, 11 Kan. App. 2d 122, 126, 715 P.2d 421 (1986).
Affirmed. | [
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Pierron, J.:
The Federal Land Bank of Wichita (appellant) appeals the order of the district court denying the Federal Land Bank the right to redeem land it had foreclosed upon and which had been sold to William Devlin and James Devlin (appellees).
The pertinent facts are not in dispute. On June 30, 1988, the Federal Land Bank of Wichita (FLB) brought an action against Marvin Garth Brown, a/k/a Garth Brown, and Joyce Elaine Brown to foreclose its mortgage on two tracts of land. In addition to the Browns, the petition named several of their creditors as defendants.
Marvin Garth Brown was served by publication. The other defendants were personally served. On December 29, 1988, the district court entered an in rem judgment against Garth Brown and a personal judgment against Joyce Brown for $67,111.22. An order nunc pro tunc was entered on June 22, 1989, changing the United States’ redemption period from twelve months to six months. The journal entry of judgment also established the priority of liens among the creditors. FLB’s mortgage was the first lien; the personal property tax lien filed by Smith County was the second lien; Sears, Roebuck and Company’s lien was third; the United States’ tax lien was fourth; and James R. Fetters, Joyce Brown’s attorney, had the fifth lien. The State of Kansas had earlier waived its lien and had been dismissed from the case. All of the creditors’ liens were foreclosed.
A sheriffs sale was held on July 24, 1989. Tract I, a quarter section, was sold to William and James Devlin for $24,000- FLB had sent its attorney to bid on both tracts. However, the instructions provided him were wrong. FLB wanted to bid $37,000 on Tract I, but told the attorney to bid only $22,000. Therefore, the Devlins were successful. This error was discovered after the sale of Tract I, but before the sale of Tract II. The sale was then stopped. On November 17, 1989, Tract II was sold to FLB for $33,415.44 and the sale was confirmed on December 5, 1989. This sale is not involved in this appeal.
The sale of Tract I was confirmed, over FLB’s objection, on September 15, 1989. This court affirmed the trial court’s confirmation of the sale in an unpublished decision filed April 20, 1990 (No. 64,288).
On October 24, 1989, a “Conveyance of Redemption Rights” was filed in the district court in which Joyce Brown assigned her redemption rights to the Devlins. The record does not reflect that any of the other defendants attempted to redeem the property.
On January 24, 1990, six months from the date of the sheriffs sale, FLB filed a notice of redemption on Tract I. With the notice, it deposited $25,535.57 with the clerk of the district court. This was the amount paid by the Devlins plus costs, interest, and taxes. FLB also filed an affidavit stating that, after application of the amounts received from the sale of both tracts, Joyce Brown had a balance due of $18,284.21. FLB, in its statement of redeeming creditors, stated that it was applying $37,756.40 from the sale of Tract I against the balance due. This amount is $13,756.40 more than the $24,000 purchase price of the Devlins. This, apparently, was an attempt to bid in the appraised value of the property.
The next day, January 25, 1990, the Devlins filed a “notice of redemption,” claiming to redeem Tract I as holders of the. Certificate of Purchase and as assignees of Joyce Brown’s redemption rights by paying $25,545.86, the amount paid by FLB plus one day’s interest of $10.29, into the clerk’s office. The clerk filed a certificate on that day stating the Devlins had paid $10.29 into the court. That same day, the trial court filed an order allowing the Devlins to offset the amount of their redemption cost by the amount they paid for the land at sale.
Both parties filed motions to set aside the redemption notices of the other. On March 8, 1990, the trial court denied FLB’s redemption and ordered the sheriff to issue a deed to the Devlins. FLB filed a notice of appeal on March 27, 1990.
This court issued a notice to the other creditors that no brief had been filed by them and if none was received before October 19, 1990, they would not be considered and the matter would be scheduled for hearing. None were received and the appeal was scheduled accordingly.
The trial court ruled that the plaintiff, FLB, could not redeem after a foreclosure of its lien and sale of the property. The court found that FLB’s deficiency judgment did not constitute a lien as defined by K.S.A. 60-2414(c) and there could be no other justification for allowing redemption. We agree and affirm.
The right of redemption of real property sold under execution, special execution, or order of sale is statutory and is defined under K.S.A. 60-2414. Subsection (b) reads in part:
“If no redemption is made by the defendant owner. . ., any creditor of the defendant owner whose demand is a lien upon the real estate may redeem it at any time within six months from the date of sale.”
Subsection (c) states:
“Creditors who may redeem. Any creditor whose claim is or becomes a lien prior to the expiration of the time allowed by law for the redemption by creditors may redeem. A mortgagee may redeem upon the terms pre scribed by this section before or after the debt secured by the mortgage falls due.”
Subsections (e) and (f) set out the provisions for creditors to redeem from each other. There is no further definition of what constitutes a “creditor” to contradict what appears in subsections (b) and (c). Subsection (q) discusses a failure to redeem by either the defendant owner or the junior creditors, but does not modify the previous definition of “creditors.”
The narrow issue presented to us is whether the holder of a first mortgage may initiate proceedings to foreclose its mortgage and all other liens on the property, bid in less than its lien amount at sale, and then be able to redeem the property from a successful purchaser at sale. This case does not involve the rights of junior lien creditors who are joined in the action by a senior lien creditor. See Federal Farm Mortgage Corp. v. Crane, 153 Kan. 114, 109 P.2d 82 (1941), and Federal Land Bank v. Ludwig, 157 Kan. 657, 143 P.2d 784 (1943).
Possibly due to the unusual fact pattern, this appears to be a matter of first impression in Kansas. It is a longstanding principle in Kansas that a mortgage foreclosure merges the lien into the foreclosure decree and extinguishes the lien on the land. Price v. Bank, 62 Kan. 735, 64 Pac. 637 (1901); In re Application for Ad Valorem Tax Exemption, 14 Kan. App. 2d 600, 797 P.2d 879 (1990). After the plaintiff foreclosed its lien in this case, if was no longer a creditor with a lien and no longer had a right to redeem under 60-2414(c).
There is significant authority in other jurisdictions on whether a creditor who causes the foreclosure sale has a right of redemption. It appears that the determination usually depends on the wording and construction of the applicable statutes. Annot., 108 A.L.R. 993; 55 Am. Jur. 2d, Mortgages § 874; 47 Am. Jur. 2d, Judicial Sales § 342.
The parties have cited to us the cases of Crowder v. Scott State Bank of Bethany, 365 Ill. 88, 5 N.E.2d 387 (1936), 108 A.L.R. 991, and Leavitt v. Continental Trust Co., 71 Colo. 3, 203 Pac. 666 (1922). Both cases are distinguishable as the applicable statutes granted the right of redemption to judgment creditors without the obligation that they have a lien on the land.
The bank contends that its deficiency judgment was a lien on the property and re-established it as a lien creditor. It cites as authority McFall v. Ford, 133 Kan. 593, 1 P.2d 273 (1931). The facts in McFall are quite different. As was set out in the opinion:
“The Federal Land Bank of Wichita commenced actions in the district court of Morton county, numbered, respectively, 2297, 2298 and 2299, to foreclose separate mortgages on separate tracts of land owned by the mortgagor, M. C. Combs. On September 3, 1928, judgment was rendered in each case in favor of the Land Bank and against Combs for the sum due and for foreclosure of mortgage. Mrs. Thomas held a second mortgage on the land involved in case 2297, and was made a party defendant in that suit. On September 3, 1928, when the Land Bank judgment was rendered in case 2297, Mrs. Thomas recovered a personal judgment against Combs, and judgment for foreclosure of mortgage. Afterwards the land involved in case 2297 was sold, with the result that no part of the judgment of Mrs. Thomas against Combs was satisfied. At the time the suits in cases 2298 and 2299 were filed, Mrs. Thomas had no lien of any kind on the tracts involved in those suits. It was neither necessary nor proper to make her a party defendant in those suits, and she was not made a party. When, however, the personal judgment against Combs was rendered in her favor in case 2297, the judgment became a lien on the tracts involved in cases 2298 and 2299, by virtue of R. S. 60-3126. The tracts involved in cases 2298 and 2299 were sold pursuant to the foreclosure judgments in favor of the Land Bank. The bank purchased at the sales for the amount of its judgments, interest, and costs, and received certificates of purchase. Combs conveyed to McFall. The conveyance effected transfer to McFall of Combs’ right to redeem, and McFall redeemed within twelve months after the sale. After expiration of eighteen months from date of sale Mrs. Thomas caused execution to be issued on her judgment, and levied on the redeemed tracts.” 133 Kan. at 593-94.
The court found that Mrs. Thomas had a right to levy as her deficiency judgment from case No. 2297 could properly be applied against the land in cases Nos. 2298 and 2299. The case does not stand for the proposition that she could have applied her deficiency judgment against the land in case No. 2297. Such a process would have led to a “second sale,” which was prohibited then and is now under K.S.A. 60-2414(o).
We, therefore, find that the bank’s foreclosure of its lien extinguished the lien and took the bank out of the class of creditors who may redeem.
We note that the Devlins have also argued that the bank could not redeem since the Devlins possessed the defendant owner’s right of redemption through assignment. K.S.A. 60-2414 does give the owner the right of redemption and the right to assign that right. However, the right is the opportunity to redeem as set out in the statute only. There is no mention of cutting off other redemptioners’ rights through assignment.
Due to our ruling above, this argument and others, raised by the appellees are not determinative and need not be further addressed.
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Caplinger, J.:
Nathan Moses appeals his convictions of forgery and misdemeanor possession of marijuana, alleging the district court erred in trying him based upon stipulated facts contained in a revoked diversion agreement. He asserts the diversion agreement was invalid because it failed to specifically include a waiver of his right to a preliminary examination as required by K.S.A. 22-2909(a).
We agree that the diversion agreement’s omission of a waiver of the defendant’s right to a prehminary hearing rendered the agreement invalid. Thus, the district court erred in trying Moses based on stipulated facts contained in the agreement, and we reverse and remand this case to the district court so that Moses may be placed in the same position he would have been in absent the diversion agreement.
Factual and procedural background
The State charged Moses with forgery, a severity level 8, nonperson felony, in violation of K.S.A. 2003 Supp. 21-3710(a)(l) and possession of marijuana in violation of K.S.A. 65-4162(a)(3). The parties entered into a diversion agreement, which was revoked after Moses failed to comply with its terms. Moses filed a motion to dismiss, which the district court denied. Following a bench trial based upon stipulated facts contained in the diversion agreement, the district court found Moses guilty of both charges.
Moses appeals his conviction arguing the district court erred in relying upon the stipulated facts in the diversion agreement. Moses contends the agreement was invalid and unenforceable because it lacked a waiver of his right to a prehminary hearing, as required by K.S.A. 22-2909(a). The State argues the diversion agreement, if read in its entirety, included the statutory requirements, and the district court appropriately relied upon the stipulated facts in trying Moses.
Standard of review
Whether the diversion agreement complied with the requirements of K.S.A. 22-2909(a) is a question of law to be decided upon uncontroverted facts; hence, our review is plenary and unlimited. See Petty v. City of El Dorado, 270 Kan. 847, 850, 19 P.3d 167 (2001).
Compliance with KS.A. 22-2909(a)
K.S.A. 22-2909(a) states in relevant part: “The diversion agreement shall include specifically the waiver of all rights under the law or the constitution of Kansas or of the United States to a speedy arraignment, prehminary examinations and hearings, and a speedy trial.”
The diversion agreement at issue here specifically included a waiver of “ah rights to a speedy trial as they exist under the statutes and constitutions of the State of Kansas and the United States” and a waiver of “all rights to a trial by jury.” Moses argues, however, that the agreement did not include a waiver of Moses’ right to a prehminary examination, specific or otherwise.
The State points out that in addition to Moses’ specific waiver of “ah rights to a speedy trial” and “ah rights to a trial by jury,” Moses acknowledged his right to “a prompt, full and complete evidentiary hearing and trial in this matter.” The State suggests that this acknowledgment, when read in conjunction with the specific waivers, satisfies the requirements of K.S.A. 22-2909(a).
The language relied upon by the State arguably supports Moses’ interpretation of the agreement; i.e., Moses acknowledged his right to a full and complete evidentiary hearing, yet he waived only his rights to a speedy trial and trial by jury. Moses’ specific waiver of certain rights while failing to waive others lends credibility to his argument that he intended to preserve his right to a prehminary examination, not waive it.
At best, the State suggests Moses implicitly, rather than explicidy, waived the right to a preliminary examination. Yet the unambiguous language of K.S.A. 22-2909(a) does not permit us to make such a finding. The statute provides that the diversion agreement “shall” include “specifically” a waiver of the right to prehminary examinations and hearings.
Nor are we willing to interpret the term “shall” in K.S.A. 22-2909(a) as directory rather than mandatory.
“Shall” is generally defined as “imperative or mandatory,” but it “may be construed as merely permissive or directory (as equivalent to ‘may’), to carry out the legislative intention.” Black’s Law Dictionary 1375 (6th ed. 1990). In considering whether a legislative provision was mandatory or directory, the Kansas Supreme Court in State v. Deavers, 252 Kan. 149, 167, 843 P.2d 695 (1992), cert denied 508 U.S. 978 (1993), stated:
“[I]t is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.”
Two cases illustrate the application of this principle. In State v. Bryant, 37 Kan. App. 2d 924, 163 P.3d 325 (2007), the court determined that the statutory provision requiring the district court to hold a hearing to establish restitution before imposing a sentence was directory rather than mandatory. The court relied upon the fact that the hearing was “not essential to the preservation of the rights of the parties,” but instead “fixes a mode of proceeding and a time within which an official act may be accomplished.” 37 Kan. App. 2d at 930-31.
In contrast, in Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 210, 755 P.2d 1337 (1988), the Kansas Supreme Court determined the statutoiy provision requiring the giving of oral and written notice of statutory rights before the administering of blood alcohol level tests was mandatory rather than directory. 243 Kan. at 212-13. The court noted that the statute specifically required certain procedures and notices be given to the individual arrested for driving under the influence. Further, absent proper notice, the use of blood alcohol tests was prohibited by the statute. 243 Kan. at 212-13.
While K.S.A. 22-2909(a) lacks negative language and does not specify a penalty or other consequence for noncompliance, strict compliance with the provision is essential to the preservation of the rights of parties affected. The requirement that the defendant specifically waive certain rights is not simply a technical or procedural requirement, but a condition required for the formation of an enforceable diversion agreement. Accordingly, the term “shall” as used in K.S.A. 22-2909(a) is mandatory rather than directory.
Because the diversion agreement did not contain a specific waiver of Moses’ right to a preliminary hearing, as mandated by K.S.A. 22-2909(a), we conclude the agreement was invalid and unenforceable.
Effect of failure to comply with statutory requirements ofK S.A. 22-2909(a)
Moses argues that if the diversion agreement was invalid, we must remand the case to the district court so that Moses can be retried, placing him in the same position he would have been in absent the diversion agreement. The State has not addressed the effect of a failure to comply with K.S.A. 22-2909(a). Further, the State conceded in oral argument that if the agreement was invalid, remand is required.
Although we are aware of no case directly addressing the issue of the effect of a failure to comply with the statutory provisions of K.S.A. 22-2909(a), the Kansas Supreme Court has considered whether the inclusion of an invalid jail time provision in a diversion agreement invalidated the entire agreement. E.g., Petty v. City of El Dorado, 270 Kan. 847, 853-54, 19 P.3d 167 (2001). Reasoning that “it is the duty of the courts to sustain the legality of contracts in whole or in part when possible,” the court struck the invalid condition and upheld the remainder of the diversion agreement. 270 Kan. at 854; see also State v. Scheuerman, 32 Kan. App. 2d 208, 211-12, 82 P.3d 515, rev. denied 276 Kan. 973 (2003) (condition in diversion agreement requiring defendant to plead guilty to one charge in exchange for diversion on another charge was not statutorily prohibited; even if provision was prohibited, court noted it would strike invalid provision and uphold remainder of agreement).
This case is distinguishable from Petty, however, as it concerns the omission of a statutorily required waiver as opposed to the inclusion of an invalid, severable condition. Under these circumstances, we conclude the diversion agreement was invalid. Therefore, the district court erred in tiying Moses based upon the stipulated facts contained in the agreement.
Moses’ convictions are reversed, and the case is remanded to the district court so that Moses may be placed in the same position he would have been in absent the diversion agreement.
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The opinion of the court was delivered by
Jackson, J.:
This appeal involves a most regrettable schism in the First Baptist Church in Wichita. The appellants who were the plaintiffs below all being members of the church brought an injunction suit against other members of the church who had prevailed at two church meetings. Plaintiffs alleged that defendants were bound upon a course leading to a departure from the historical customs and tenets of the First Baptist Church in Wichita in that defendants had voted to withdraw from the national American Baptist Convention and from the co-operating Kansas Baptist Convention and the Wichita Association of Baptist churches.
Plaintiffs alleged that they being the members of the church who were still true to the tenets and customs of the church were entitled to claim the property of the church as against the defendants who were departing from the tenets and customs, and claimed that if defendants persisted in the wrongful course, plaintiffs be declared to be the sole owners of the church property. The property is said to be worth some two million dollars above existing indebtedness, so that the importance of this case is not to be gainsaid.
The lower court after consideration of the facts held for defendants and denied plaintiffs any relief.
The appeal does not present any great question as to the nature of the facts involved. The question is, was the trial court correct in the interpretation of the meaning of the facts? In passing, it may be said this court has learned a considerable amount of detail concerning the Baptist churches of the United States.
Almost all school boys remember that Roger Williams was the first great Baptist name in American history. He was excluded from Massachusetts colony because he would not accept the teachings of the Puritans of that colony. Those Puritans it may be noted later founded the Congregational Church in the United States.
After leaving Massachusetts, Williams went to Rhode Island and helped to found that colony and the Baptist Church in this country.
The Baptist Church became one of the most rapidly growing churches in the frontier days and spread to Pennsylvania and later to the south and to the western frontier.
There can be no doubt that one of the firm principles of the Baptist church has been that each church was its own master and might rim its own affairs as an autonomous church. Nevertheless, the various churches did have dealings with each other and tended to co-operate in their common worship. As early as 1814, the American Convention for Foreign Missions was organized. In 1824, the American Publication Society came into being, and in 1832, the American and Foreign Bible Society was born.
The above three societies managed the national affairs of the Baptist churches under what came to be known as the Triennial Convention.
As early as 1845, there occurred a schism between the northern and southern churches over the question of slavery. In May, 1845, the churches of the south met in Augusta, Georgia, and founded the Southern Baptist Convention. This branch of the Baptist church has always been conducted efficiently and is now the denomination having the most members in the Baptist family of churches. It may also be noted that all members of the Southern Baptist Convention are known as Southern Baptist Churches.
Both the Britannica and American encyclopedias use the word “denomination” as applying to the various kinds of Baptist churches.
Turning back to the northern churches, they continued to conduct their affairs under the Triennial Convention and its three American societies. It would appear that they were aided in their work by the organization of state and local societies. The Kansas Baptist Convention was organized in 1860, although not incorporated until 1885.
The more local association having charge of the Baptist churches in the Wichita area was first known as the Walnut Valley Association. Later with the growth of the city of Wichita there was formed in 1949 the Wichita Association of Baptist Churches which took over from the Walnut Valley Association the churches of the city of Wichita.
In 1907, the churches of tire north formed the Northern Baptist Convention. The organization was incorporated in 1910, and the trial court sets out a part of section 2 of the act incorporating the organization which reads as follows:
“The objects of the corporation shall be to give expression to the opinions of its constituency upon moral, religious and denomination matters and to promote denominational unity and efficiency in efforts for the evangelization of the world.” (Emphasis supplied.)
It would appear that the act of incorporation fully recognizes that what we have in this corporation is the rallying point of the denomination of Northern Baptist churches. In 1950, the name of the convention was changed to the American Baptist Convention.
The First Baptist Church in Wichita was organized in 1872 and was incorporated in 1873. The first pastor was appointed by the Kansas Baptist Convention and the American Mission Society and his salary was paid by the Mission Society. It is further shown that loans were made to the First Baptist Church in Wichita in 1873, in 1878, in 1883 and 1884.
Thus the record is clear that the Wichita church was founded by the denomination of churches now represented by the American Baptist Convention and further that the church took an active part in the denomination until the year 1960. It should be noted that the Kansas Baptist Convention, the Walnut Valley Association and the Wichita Association of Baptist Churches are all integral parts of the denomination represented by the.national convention now known as the American Baptist Convention. Mr. W. C. Coleman, a lay member of the Wichita church, had at one time been president of the American Baptist Convention and had always taken an active part in these matters. He died in 1957.
We note that at the time of the beginning of the present suit, the pastor was the Reverend Mr. F. B. Thorn; that Mr. Thorn was educated at Baylor University in the Southern Baptist denomination, no doubt; some of the plaintiffs suggest that after Mr. Coleman’s death, Mr. Thorn took less interest in the American Baptist Convention.
On March 9, 1960, a resolution which read as follows was passed by a vote of 1174 to 235 — the membership of the church at that time was believed to be something above 4000:
“Resolved, that the Finance Committee of the First Baptist Church be and are hereby instructed to immediately withdraw any and all financial support to the American Baptist Convention or to any of its affiliated organizations that support it under the unified budget of the First Baptist Church for the reason that the said American Baptist Convention and its affiliated organizations are apparently in full support of the policies and plans of the National Council of Churches and that these policies and plans are not in accordance with the faith and practices of the First Baptist Church of Wichita, Kansas.”
It will be noted that the fault was found with the National Council of Churches and not specifically with the American Baptist Convention. This alleged fault is beyond the scope of this opinion, but those interested may see an article in Look Magazine for April 24, 1962.
On July 13, 1960, at another church meeting a resolution was passed by a vote of 739 to 294. This resolution read in part as follows:
“1st. The First Baptist Church discontinue its affiliation with the American Baptist Convention and with its related organizations and bodies effective immediately, and
“2nd. That funds now being sent to any organization or bodies affiliated with the American Baptist Convention, specifically Ottawa University, Central Seminary, Sunset Home and the Wichita Association of Baptist Churches be continued'as authorized for the balance of the current fiscal year, but that any continuation of such funds beyond this period be reviewed by the Finance Committee and the congregation when the budget of the First Baptist Church is drawn up for 1961, however,
“3rd. Funds being used specifically for the Kansas Baptist Convention for administrative purposes be withdrawn immediately as approved by the congregation of the First Baptist Church on March 9, 1960.”
Upon the above record, which has been briefly reviewed, the trial court found that the First Baptist Church of Wichita was an autonomous church; that nowhere in its constitution and by-laws did it provide for affiliation with the American Baptist Convention or its affiliated organs; that the governing body of the church is the congregation or general membership and that the congregation might at any regular meeting transact business by majority vote and pass all resolutions “so long as they do not constitute a departure from the fundamentals of the original tenets, beliefs, rules and practices of the church.”
So we have a rather narrow question in the end. Was the court correct in holding that the vote on March 9 and July 13 did not violate any of the tenets, rules and practices of the church?
We are of the opinion that the trial court erred. Even an autonomous Baptist church, like other protestant churches, is apt to have practices, rules and beliefs which do not form a part of the archives of the church after ninety years of operation. Moreover, we believe it to be unusual for the denomination of a protestant church to be specified in its constitution or archives. We feel that the trial court would have some doubt had he realized that here the church was voting to leave the denomination of churches which had been active in its birth, and in which its members had been prominent for many years.
We note that the defendants have argued that the board of deacons is actively investigating other “conventions” in the Baptist family of churches with the idea of joining one of them. Besides the Southern Baptist Convention and the American Baptist Convention we find only the National Baptist Convention (USA) Inc., and the National Baptist Convention of America as conventions of any size. Both of these denominations are composed wholly of Negroes.
In the encyclopedia we find a number of small denominations of Baptists. In some, from the name, we believe the members take Calvinistic doctrines more seriously than do the members of the Wichita church.
The First Church might join the Southern Baptist group, but then they would have to change the name of their church, a clear indication that they had changed denomination. Or, we suppose the church can remain unaffiliated. We note that certain notices have been carried in the Wichita papers listing the church in that way.
Of course, what we have said above is fortified by what this court has said in former cases. In Hughes v. Grossman, 166 Kan. 325, 201 P. 2d 670, the fifth paragraph of the syllabus spoke of a rather small Baptist church and not of the largest church of the denomination in the state. But in that case the court said:
“The record in an injunction action involving the custody, management and control of property belonging to a Baptist church is examined, and it is held, that under the facts and circumstances as fully set forth in the opinion, repudiation by the defendants of the national, state and local associations maintained by the churches of the Baptist faith constituted a departure from the original principles, rules and practices of church government recognized by the united body prior to the occurrence of any schism therein and entitled the plaintiffs to injunctive relief perpetually restraining and enjoining the defendants from occupying or possessing the church property and from interfering with the plaintiffs in the management, control, possession or custody of the church, its property or its business affairs.” (Syl. ¶ 5.)
The case of Whipple v. Fehsenfeld, 173 Kan. 427, 249 P. 2d 638, follows Hughes v. Grossman, supra, perhaps on even a clearer set of facts.
However, we believe the rule of those two cases applies to the case at bar. We hold that not even in an autonomous Baptist church may the denomination of the church be changed by a mere majority vote.
In concluding this opinion it is evident from what has been said that the judgment of the trial court must be reversed. Therefore, the judgment appealed from is reversed and the trial court is directed to issue an injunction as prayed for by the plaintiffs. It is so ordered.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
These are actions for alleged libel. The trial court overruled demurrers challenging the sufficiency of the petitions, and the defendant has duly perfected an appeal from each of such orders, presenting as the sole question whether the respective petitions state sufficient facts to constitute libel per se.
Two separate actions were filed in the district court of Sedgwick County, Kansas. One was filed by the Teamsters Local doing business in Wichita under the caption “Chauffeurs, Teamsters and Helpers Local Union No. 795 v. Kansans for the Right to Work, a corporation.” This case is docketed here as No. 42,319. This suit prays for judgment in the amount of $100,000 actual damages, together with $150,000 punitive damages. A second suit was filed by S. E. Smith, the business agent for this same Teamsters Local, under the caption “S. E. Smith v. Kansans for the Right to Work, a corporation,” and is docketed here as No. 42,318. This suit prays for judgment in the amount of $100,000 actual damages, together with $150,000 punitive damages. These cases have been consolidated with a stipulation that the decision in No. 42,318 will be controlled by the decision in No. 42,319. Only the latter case has been abstracted and briefed for review by this court and our opinion will be confined to it.
On the 22nd day of July, 1959, the Wichita Local of the Teamsters Union mailed to certain trucking firms a letter advising these firms that the Teamsters intended to picket them beginning July 27, 1959. This letter was signed by S. E. Smith, as president and business representative of the Local Union.
On or about the 2nd day of August, 1959, Kansans for the Right to Work, a corporation, published in two Wichita newspapers copies of the Teamsters’ letter together with comments concerning the letter’s real meaning and effect. The publication in each of the two Wichita newspapers was identical. The Teamsters’ letter as published reads as follows:
“Chauffeurs, Teamsters, and Helpers
Local Union No. 795
Wichita 2, Kansas
July 22, 1959
“CERTIFIED MAIL-RETURN RECEIPT REQUESTED
“(Addressee’s name deleted)
“Dear Sir:
“Local 795, I. B. T., has decided to embark upon a campaign to organize your office and clerical employees. To induce your employees to join this union, we shall begin to picket your establishment on or about the 27th of July, 1959. We assure you that the picketing will be entirely peaceful. We have instructed our pickets not to threaten, intimidate or coerce anyone. If there is any violation of those instructions, please advise us and we shall see to it that corrective action is taken immediately.
“We wish to make it clear to you that Local 795 does not at this time represent, and of course we do not claim to represent, a majority of your office and clerical employees. Local 795 does not ask you to recognize it as exclusive bargaining representative for your employees, or indeed, ask you to recognize it for any purpose at this time. The purpose of our picketing is solely to call to the attention of union members and supporters of organized labor that your office and clerical employees are not members of Local 795.
“We hope that the demonstration of support of Local 795 in its efforts to organize, which this picketing will produce, will persuade your employees to become members of our Local Union. When they do, they will join the thousands of other employees who are affiliated with the great International Brotherhood of Teamsters. In engaging in this picketing campaign, we are speaking for the members of our organization who are employed in businesses like yours and who feel the brunt of the unfair competition of your unorganized employees.
“This point we must emphasize. We are not making any demand upon your Company at this time to agree to or execute any contract with our Union covering any of your employees. Under the law your Company is permitted to recognize and bargain with our Local Union only after a majority of your employees have authorized the Union to represent them. Therefore, even if your Company should now or hereafter offer to recognize our Union or enter into collective bargaining with us our Union would refuse such an offer and we would continue to refuse until your employees lawfully authorize us to represent them. Should your employees desire to join our Union, they may apply for membership at the office of Local 795, 417 East English, Wichita, Kansas, or ask one of the pickets for a membership application card which they can fill out and return to him. When we have received applications from a majority of your employees, we will contact your Company further.
“You should also understand that it is your right under the Constitution of the United States and under the National Labor Relations Act to advise your employees of the economic detriment which you and they will sustain as a result of the withholding of patronage from your concerns by union members and sympathizers as long as they remain non-members of our union.
“You may, in the exercise of your lawful rights, explain these detriments to your employees and urge them to apply for membership in the Union and thereby acquire for themselves and for your Company the good will of our Union and its friends. You may not, and we are sure that you will not, threaten to take economic reprisal against your employees, or grant them benefits, to coerce their choice in this matter. However, we feel sure that if your employees, who have been carefully taught to look to you for leadership on matters affecting their employment, are convinced that it is your sincere desire that they join the Union, they will quickly realize that acquisition of union membership at the earliest opportunity is in their best interest.
Yours very truly,
S. E. Smith, President and Business Representative.
SES:pe”
Comments upon the foregoing letter as published appeared as follows:
“Is There Any Word for It But ‘Blackmail?’
“Mr. and Mrs. Citizen:
“At least six large trucking firms in Wichita are being picketed yet there is no strike, no contract negotiations, no nothing — except blackmail!
“What is happening in Wichita is in open disregard of the Kansas Right to Work law — another example of Hoffaism and the tactics of the puppet leaders who do Hoffa’s bidding.
“The picketing in Wichita began after a letter from Sam Smith, local Teamster boss, was sent to the truck line operators. (Smith’s letter is reproduced at the right.) It is doubtful if such a letter has ever before been seen in the long history of union boss attempts to deprive American working people of their freedom of choice — and force them to join unions or lose their means of livelihood.
“In absolute disregard of either employer or employee rights and wishes, Sam Smith’s letter combines the work of tire skilled writer and the ingenuity of the legal practitioner. Lest the full meaning of this letter be lost in its lengthy wordage, this is what the union boss is saying to the Wichita trucking firms:
“* ‘We know the law, and the law says we can picket you as an exercise of free speech so long as we do it peacefully.
“* We know, also, that our picket at your door will put you out of business because you will not be able to move goods so long as our picket is there.
“ * We are under no necessity to sell the union to your employees because you will compel them to join our membership as quickly as the picketing shoe starts to pinch.
“* ‘There is no occasion for us to use force and violence and risk possible injunction proceedings against us because you, Mr. Employer, will do our job for us. You’ll have to — or go out of business.
“* We don’t care about what your employees think or want. They will join our union or they won’t work for you.
“* We don’t care, either, for the supposed constitutional or moral rights of your employees. They lost their rights when the lawmakers and the courts ceased to protect them and delivered their economic destiny into our hands.’
“Picketing is a simple device. One two-dollar-a-day stranger carrying a picket sign for some union can literally stop business — any business — in its tracks. If continued, it can destroy the business against which it is directed.
“Picketing, as a means of advertising a legitimate labor dispute between employer and employee, is an acceptable device to most Americans. When used to effect the ends of a private organization which seeks only its own purpose without regard for the consequences to both employer and employee, it is a monster.
“This monster, Mr. and Mrs. Wichita can within a few days stop your flow of food, medicine and other vital necessities of everyday life. It can paralyze the City of Wichita, all the surrounding area, the State of Kansas — even spread throughout the nation.
“This monster can also throw thousands of people out of work, including regular rank and file members of the Teamsters who want no part of Sam Smith’s action, who desire only to work and earn a living for themselves, their wives and their children.
“Let it be known that the Sam Smith letter did not originate with Sam Smith. The same identical letter, word for word, was sent more than two months ago to Chicago trucking companies by Teamsters Local 710 in that city.
“Also, let it be known that if Sam Smith wants to fight the Right to Work battle all over again, Kansans for the Right to Work is ready to go.
“Our organization is offering every resource at its command to those trucking firm employees who need and want our help. Public pressure must be brought to bear on Sam Smith through a flood of protests directed at him by open personal appeals to Governor Docking, the city manager and the mayor of Wichita — and through pledges of unqualified support to the trucking firm operators and their embattled office and clerical employees.
“Every member and friend of the Right to Work movement — every citizen who believes in personal freedom and who wants to protect himself and his family — is urged to act at once — by telephone, telegram, letter or personal calls — to force a halt to this type of blackmail picketing which is being used as a gangster gun in the ribs of business and its employees.
Kansans for the Right to Work
P. O. Box 3038, S. E. Station Wichita”
Four months later the Teamsters filed their petition in the district court. After various changes resulting from motions their third amended petition (hereafter referred to as the petition) was filed on the 22nd day of July, 1960. This petition by appropriate allegations identified the parties, and alleged the publication of the foregoing advertisement on or about the 2nd day of August, 1959, in the Sunday edition of The Wichita Eagle Newspaper and in the Sunday edition of The Wichita Beacon Newspaper, copies of which were attached and made a part of the petition. It alleged the circulation of the newspapers and the publications to many thousands of people throughout a several-states area. The petition then alleged:
“v.
“The publication of both said articles in said newspapers was paid for by the Kansans for the Right to Work, and was signed with its corporate name; and, defendant published the libelous matter herein complained of with the knowledge it was false.
“vi.
“In addition to the word ‘Blackmail’ which appeared in the title of both articles, in bold blackface type, the letter ‘B’ in the word ‘Blackmail’ being approximately % inch in height, the word ‘blackmail’ also appeared in the first paragraph of the body of the article reading:
“ ‘At least six large trucking firms in Wichita are being picketed, yet there is no strike, no contract negotiations, no nothing — except blackmail!’
“Plaintiff denies engaging or intending to engage in said blackmail.
“vn.
“By the language appearing in these two said articles defendant has accused plaintiff and its agent or officer of intentionally committing the act of blackmail. Blackmail is a crime and felony in Kansas under G. S. Kansas, 1949, as amended, 21-2412.
“vm.
“Defendant’s published statement occurring in the articles reading:
“ ‘We don’t care about what your employees think or want. They will join our union or they won’t work for you . . .’
is not a true statement and not a correct interpretation of the language appearing in the said reproduced letter from Mr. S. E. Smith; and, by so interpreting plaintiff’s letter the defendant is accusing plaintiff of violating Article 15, Section 12 of the Kansas Constitution, G. S. Kansas, 1949, as amended, 44-809 (4) and the National Labor Relations Act, as amended, Section 7 and Section 8(b).
“rx.
“Defendant’s published statement appearing in the articles reading:
“ ‘We don’t care, either, for the supposed constitutional or moral rights of your employees. They lost their rights when the lawmakers and the courts ceased to protect them and delivered their economic destiny into our hands . . .’
is not a true statement and not a correct interpretation of the language of the said reproduced letter from Mr. S. E. Smith and such statement accuses the plaintiff of violating laws including the G. S. Kansas, 1949, as amended, 44-801 through 44-817, the Constitution of the State of Kansas, especially Article 15, Section 12, and the National Labor Relations Act, as amended, especially Sections 7 and 8.
“x.
“The said reproduced letter from Mr. S. E. Smith addressed to the several trucking firms, appearing in defendant’s article, was signed by S. E. Smith in his official capacity as President and Business Representative of plaintiff and S. E. Smith had the authority to send such a letter and the contents thereof have been ratified by plaintiff.
“xr.
“Plaintiff denies that it was engaged in “blackmail picketing’ as alleged by the defendant in the last two lines of the language of the said articles. Plaintiff denies that it is making use of a ‘gangster gun’ as alleged in the last line of the language of the articles. Use by the defendant of the language ‘blackmail picketing’ and ‘gangster gun’ in reference to the plaintiff has degraded and injured the plaintiff in the eyes of its members, friends, employers and employees with whom it deals, other employees, and the general public.
“xa.
“Defendant willfully, wantonly, recklessly, and maliciously published the said articles, attached hereto as Exhibits ‘A’ and ‘B,’ for the purpose of defaming and degrading the plaintiff. As a result of said publication plaintiff has been provoked to wrath and exposed to public contempt, ridicule, hatred, scorn and shame, and has suffered the loss of confidence with some of its members, friends, the employers and employees with whom it must deal, as well as the loss of confidence of the general public, its organizational attempts of employees have failed.”
Thereupon followed the ad damnum clause and count two of the petition which alleged that the defendant’s acts were malicious and prayed for exemplary damages.
The appellee in its brief concedes the demurrer should be sustained if there is no libel per se to be found in the foregoing publication. It concedes no facts have been pleaded supporting innuendo, malice or special damages, and that it had no intention to plead libel per quod.
The distinction between libel per se and libel per quod has long been before this court and was summarized recently in the case of Karrigan v. Valentine, 184 Kan. 783, 339 P. 2d 52, as follows:
‘Words libelous per se are words which are defamatory in themselves and which intrinsically, by their very use, without innuendo and the aid of extrinsic proof, import injury and damage to the person concerning whom they were written. They are words from which, by the consent of mankind generally, damage follows as a natural consequence and from which malice is implied and damage is conclusively presumed to result. . . .
“Words libelous per quod, on the other hand, are words ordinarily not defamatory but which become actionable only when special damages are shown, that is, they are words the injurious character of which appears only in consequence of extrinsic facts. Thus, words not defamatory per se, may become actionable per quod, depending upon the facts and circumstances of the particular case, and this gives rise to the rule that in order to recover for a libel per quod special damage and injury must be alleged and proved. . . .” (p. 787.)
In the summation of its brief the appellee says: “Appellee believes appellant’s advertisement accused appellee of engaging in blackmail (a crime in Kansas), of lacking good morals and failing to respect the moral rights of others, of coercing employees contrary to state and federal laws, of engaging in ‘blackmail picketing’, of making use of a ‘gangster’s gun’, and of violating other laws, all of which tends to make appellee contemptible, infamous, odious and ridiculous. As such it is libel per se. . . .”
The words and phrases complained of are “blackmail,” “blackmail picketing,” “gangster gun,” “We don’t care about what your employees think or want. They will join our union or they won’t work for you,” and “We don’t care, either, for the supposed constitutional or moral rights of your employees. They lost their rights when the lawmakers and the courts ceased to protect them and delivered their economic destiny into our hands.” These, of course, must be studied in context.
Bennett v. Seimiller, 175 Kan. 764, 267 P. 2d 926, was a libel case involving a labor union and its use of the word “traitor” as applied to one of its members. In the course of the opinion it was said:
“. . . In connection with the court’s duty it generally is held that in determining whether a writing or utterance is defamatory per se each part thereof must be considered in its relation to the others rather than separately. In other words, the entire statement must be fairly and reasonably construed as a whole. . . . Closely related to and actually a part of the foregoing principle of interpretation is the rule that words or phrases must not be taken out of context. The rule has its roots in justice. Words, which standing alone, would be actionable may not be so when taken in connection with their context. . . .” (pp. 767, 768.)
It may be observed at the time this publication occurred in August, 1959, there was a period of unrest in the labor field. The Labor-Management Reporting and Disclosure Act of 1959 had not yet become law. The United States Supreme Court had announced the now famous “no-man’s land” in which it stated that in certain labor cases the state courts could not act, the United States Supreme Court would not act, and the Congress had not acted, thereby creating a vacuum in which certain aggrieved employees and employers were virtually without courts or remedy where the total amount of business done in interstate commerce did not meet the arbitrary minimum jurisdictional standard established by the National Labor Relations Board. (Guss v. Utah Labor Board, 353 U. S. 1, 1 L. Ed. 2d 601, 77 S. Ct. 598; Meat Cutters v. Fairlawn Meats, 353 U. S. 20, 1 L. Ed. 2d 613, 77 S. Ct. 604, reh. den. 353 U. S. 948, 1 L. Ed. 2d 857, 77 S. Ct. 822; San Diego Unions v. Garmon, 353 U. S. 26, 1 L. Ed. 2d 618, 77 S. Ct. 607, reh. den. 353 U. S. 951, 1 L. Ed. 2d 860, 77 S. Ct. 858; and see, Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P. 2d 366; and Newell v. Local Union 795, 181 Kan. 898, 317 P. 2d 817, reversed per curiam on certiorari, 356 U. S. 341, 2 L. Ed. 2d 809, 78 S. Ct. 779.)
The term “blackmail picketing” was an infant term just coming into usage and not fully developed at the time of the publication herein. Dictionary definitions of the term were not available. To organized labor this third party type of peaceful picketing was an effective useful weapon, allegedly within the law. To the right to work group it posed a dangerous threat and the term “blackmail picketing” was catching hold to describe it. (See the discussion in Newell v. Local Union 795, supra, beginning at page 909.) The term “blackmail” as used in the article published, when read in context with the whole publication, was clearly a part of the new term “blackmail picketing.”
The term “gangster gun” when read in context is clearly a figure of speech with a significance entirely distinct from the true meaning of the term if used in isolation. Citizens were urged to act at once “to force a halt to this type of blackkmail picketing which is being used as a gangster gun in the ribs of business and its employees.” (Emphasis added.) Obviously, the picketing described is not a gun and a business does not have ribs. The terms employed to describe how such picketing was being used were thus figures of speech having an entirely different connotation than the true meaning of the words when isolated and defined. In this connection see the fourth paragraph of the appellant’s comments under “what the union boss is saying.”
Of vital significance to this appeal is Paragraph X. of the petition. By this paragraph the appellee admits the Smith letter was addressed to the trucking firms in question and signed by Smith in his official capacity as president and business representative o£ the appellee. It further admits Smith had authority to send such letter and that the contents thereof have been ratified by the appellee. Furthermore, the petition does not complain of the charge made in the article that pickets were placed at these various trucking firms, nor does the petition deny the truth of these charges. Instead, the complaint is that the appellee’s organizational attempts failed.
With these admissions the court must look to the entire publication and determine, as a matter of law, whether any statement therein contained is reasonably susceptible of constituting libel per se. (Bennett v. Seimiller, supra.)
It is unnecessary to review the development of labor law under the Labor Management Relations Act, 1947, commonly known as the Taft-Hartley Act, to dispose of this appeal. This law may be found in the decisions of the United States Supreme Court heretofore cited in this opinion and in those cited in Newell v. Local Union 795, supra, and Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P. 2d 456, certiorari denied 368 U. S. 829, 7 L. Ed. 2d 32, 82 S. Ct. 51. Our state law is found in Higgins and other recent labor decisions of this court cited therein.
Charges of falsity and denials made by the allegations of the appellee’s petition itself are insufficient to overcome the overriding effect of the admissions made therein regarding the activity of the appellee through its president and business representative, S. E. Smith, as disclosed by his letter to the trucking firms and his admitted activity thereafter for which the appellee is responsible.
While the terms “blackmail” and “blackmailer,” when used against a person to mean that such person committed the offense of extortion, have been held sufficient to sustain an action for libel per se in Hess v. Sparks, 44 Kan. 465, 24 Pac. 979, the circumstances here presented are different and we have a different type of publication. Here the publication itself clearly defines the meaning of the term “blackmail picketing” which the reader may readily grasp by reading both the letter and the comments thereon.
Whether the Teamsters care or do not care what the employees of the trucking firms think or want, or for their supposed constitutional or moral rights (See Paragraphs VIII and IX of the petition) is not a crime under either state or federal law. These comments are not reasonably susceptible of constituting libel per se.
Expressions in other cases which were held not to be actionable per se are: “All I want you to do is to pay your honest debts,” (Hamilton v. McKenna, 95 Kan. 207, 211, 147 Pac. 1126); that an attorney “refused to answer the court’s questions as to what he had done with the money which he had collected for the estate, which he had not turned over to the proper parties,” (Hanson v. Bristow, 87 Kan. 72, Syl. ¶ 2, 123 Pac. 725); “the mayor of a city said, . . . that he was running the town, and the council and people had nothing to do about it,” (Dever v. Montgomery, 89 Kan. 637, Syl., 132 Pac. 183).
Upon all the facts, conditions and circumstances presented by this appeal we are of the opinion that the comments made by the appellant in the publication readily fall within the category of fair editorial comment, and as such are protected by the constitutional guarantee of free speech.
Having concluded that no cause of action is stated constituting libel per se in count one of the petition, the second count seeking exemplary damages must necessarily fail. (See, Branstetter v. Robbins, 178 Kan. 8, 14, 283 P. 2d 455.)
In conclusion we hold the lower court erred in overruling the appellant’s demurrer to the petition. The judgment is reversed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant was found guilty by a jury of second degree burglary as defined in G. S. 1959 Supp. 21-520. Upon notice and proof of two prior convictions of felony, he was sentenced under the Habitual Criminal Act (G. S. 1949, 21-107a) to confinement in the Kansas State Penitentiary for the period of his natural life. While confined under the sentence, he appealed pro se from the jury’s verdict, the order overruling his motion for a new trial, and from the judgment and sentence of the district court.
At the outset we are confronted with the state’s challenge of the right of the defendant to be heard. Conclusions hereafter announced make it unnecessary to relate the facts of the crime other than to say that all of the evidence was to the effect the defendant was, in his own words, caught “cold” in committing the burglary in the nighttime.
Throughout the trial the defendant was represented by counsel of his own choice. After the jury returned its verdict of guilty, counsel filed a motion for a new trial upon four grounds: (1) that the court erroneously admitted illegal testimony; (2) that the verdict was decided by means other than a fair expression of opinion on the part of the jury; (3) that the court misdirected the jury on a material matter of law, and (4) that the verdict was contrary to the law and evidence.
When the motion for a new trial came on for hearing counsel stated the motion had just been filed and unless there was objection he “would submit the motion to the court without argument.” He then handed the motion to the court and after an examination, the court overruled it.
During the pendency of the appeal the defendant filed a handwritten document labeled “abstract” which purports to abstract and quote portions of testimony given at the trial by certain witnesses for the state. The defendant’s “abstract” also contains specifications that the district court erred in the following respects: (1) in overruling the motion for a new trial; (2) in instructing the jury; (3) in admitting testimony of Cass Haag concerning other crimes, and (4) in overruling the motion for a discharge on die grounds the evidence was insufficient to find the defendant guilty.
As is noted, the specifications of error deal only with alleged trial errors, and, except for the fourth, specify matters fairly embraced in the motion for a new trial. The fourth specification of error was not included in the motion for a new trial, nor was the appeal from the order refusing to discharge the defendant. Under our decisions, the fourth specification of error presents nothing for appellate review. (State v. Combs, 186 Kan. 247, 350 P. 2d 129.)
With respect to the second and third specifications of error, the record indicates they were not urged as grounds for a new trial. In State v. Morrow, 186 Kan. 342, 349 P. 2d 945, this court said:
“It is a long-standing rule of this court that in a criminal action alleged trial errors not heard or presented on the hearing of a motion for a new trial are unavailing on appeal. . . . (State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573; State v. McManaman, 175 Kan. 33, 35, 36, 258 P. 2d 997.)” (l. c. 343, 344.)
In State v. Hayes, 169 Kan. 505, 219 P. 2d 442, it was said:
“Three of appellant’s four specifications of error relate to alleged trial enors which, although they were set forth in her motion for a new trial, were not urged, or relied on as grounds for the allowance of such motion at the time it was presented to the trial court and hence are of no avail to her on appellate review.” (1. c. 506.)
In State v. Toelkes, 128 Kan. 293, 278 Pac. 20, we said:
“Defendant filed motions for a new trial and in arrest of judgment, but according to the record these were ‘submitted to the court without argument on either side.’ Except in unusual circumstances which do not exist in this case (Beam v. Farmers Union Mutual Hail Ins. Co., 127 Kan. 234, 273 Pac. 440), any matters which should have been but were not urged upon the trial court’s attention in those motions present nothing for appellate review. (Bremen State Bank v. Loffler, 121 Kan. 6, 8, 245 Pac. 742; State v. Shehi, 125 Kan. 110, 263 Pac. 787.) (l. c. 295.)
While a defendant may appeal to this court as a matter of right from any judgment against him by complying with the adequate and easily complied-with method of appeal (G. S. 1949, 62-1701, 62-1724), the statute does not contemplate that he is entitled to a review of every matter involved in his trial and sentence without complying with well-established rules of procedure relating to appellate review. (State v. Hamilton, 185 Kan. 101, 103, 340 P. 2d 390; Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 503, 73 S. Ct. 397.) And so here. The defendant appealed from the order overruling his motion for a new trial and the subjects embraced in the specifications of error were fairly within the purview of the grounds of that motion, but he failed to urge and rely upon those grounds for the allowance of his motion for a new trial at the time it was presented to the district court, consequently, they are of no avail to him for appellate review. (State v. Morrow, supra; State v. Hayes, supra; State v. Toelkes, supra.)
Despite the condition of the record, the court has carefully examined it and is satisfied the defendant suffered no prejudice to his substantial rights, but because anything the court might say on the subject would be extrajudicial, expression of its views would be improper.
Conclusions here announced compel an affirmance of the judgment. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by Helen Patterson, plaintiff (appellee), against George H. Weyer, Inc., Rayette, Incorporated and Eleanor Jefferies, doing business as Eleanor’s Beauty Shop, defendants, to recover damages for personal injuries alleged to have been sustained as a consequence of breach of an implied warranty as a result of a permanent wave sold and given to plaintiff by Eleanor Jefferies while using a Rayette Goddess cold wave permanent, which was manufactured and distributed by Rayette, Incorporated and sold and distributed locally by George H. Weyer, Inc., to Eleanor Jefferies to be sold, used and applied by her on customers visiting her beauty shop, particularly the plaintiff.
The petition alleged in pertinent part that when defendants sold, distributed and applied to plaintiff’s hair and scalp the Rayette Goddess cold wave permanent they impliedly warranted and represented it to be wholesome and fit for human hair, head and scalp; that plaintiff relied upon the warranty, accepted and was given the mentioned cold wave permanent; that it was not wholesome, fit or suitable for her hair or scalp; and that it was poisonous and highly injurious to human hair and scalp, and defendants thereby breached their implied warranty.
Defendants George H. Weyer, Inc., and Rayette, Incorporated, answered admitting their corporate existence and denying generally plaintiff’s other allegations. As an affirmative defense defendants pleaded contributory negligence of the plaintiff in failing to warn them of an alleged existing allergy or physical condition at the time she requested the permanent wave. Plaintiff replied by way of a general denial.
At the close of plaintiff’s evidence the case was dismissed as to defendant Eleanor Jefferies and her answer is not abstracted here.
On the basis of the issues thus joined the case was tried to a jury, which, in answer to special questions submitted to it by the court, found that the product in question (Rayette Goddess cold wave permanent) was produced and marketed by defendants (Rayette, Incorporated, and George H. Weyer, Inc.) to be used only by licensed beauty operators according to instructions as to the type of said product to be used on four different classes of hair; that the beauty operator (Jefferies) followed instructions in using the product on plaintiff’s hair; and that the waving solution in the product was injurious to plaintiff and plaintiff was not subject to any unusual allergy or physical condition causing her to have unusual symptoms when the product was used upon her head. The jury also returned a general verdict for plaintiff in the sum of $1,500 for which judgment was entered.
Defendants (appellants) Rayette, Incorporated, and George H. Weyer, Inc., appeal only from the order of the trial court overruling their motion for a new trial.
At the outset it may be stated that in this jurisdiction a manufacturer, distributor or retailer who sells hair preparations does so under the implied warranty that such product is suited and fit for the purpose for which it is sold. (Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P. 2d 413; 1 Products Liability, Hursh, §3:18, pp. 429-431.) Defendants contend plaintiff failed to prove the breach of implied warranty in not showing the permanent wave was deleterious, harmful and unwholesome.
The underlying issue presented on this appeal is whether the evidence is sufficient to sustain the findings of the jury that the application of the permanent wave product manufactured by one defendant and distributed and sold by the other was unwholesome or deleterious and proximately caused plaintiff personal injury. An examination of plaintiff’s evidence most favorable to her discloses that Mr. Hoffman, chief research chemist for Rayette, Incorporated, testified that the mentioned permanent wave had been manufactured and on the market since the year 1953; that each container of the cold wave lotion and solution has marked on it the directions for use; that defendant Rayette writes on the outside of the container, “For Professional Use Only. Read directions before using.”; that the product is sold only to licensed beauty operators; that the directions are very explicit in outlining the steps necessary to prepare the wave and to test it during the application and to see that the hair isn’t overprocessed, that they also caution the operators of overabundance or sloppage of the lotion on the patron’s scalp or skin; and the directions say, “Important. Don’t give a cold wave to any patron who says she has experienced allergic reaction from a cold wave preparation. If she has a history of abnormal response to cold waves, avoid difficulty by abstaining from cold waving her hair.” Mr. Hoffman further testified that there are certain instructions given to beauty operators in connection with using waving lotions on people who have tinted hair and that it is up to the discretion of the beauty operator to thoroughly examine the hair and recommend specified or very mild lotions. He also testified if the licensed operator believed the condition of the scalp were such as to warrant safe use of the permanent wave solution, the company would not quarrel with that.
The evidence further disclosed that plaintiff had been a regular customer of Eleanor’s Beauty Shop for about six months. Each week during that time plaintiff had a shampoo and set, and every three or four weeks a hair tint. On January 10, 1959, pursuant to an appointment, plaintiff went to this same shop for a cold wave permanent. The operator testified that when the plaintiff first came to see her she ascertained that plaintiff had no allergies and since that time had never noticed nor experienced anything unusual with regard to plaintiff’s skin or scalp. In view of no history of any allergy, Eleanor Jefferies determined that plaintiff’s scalp and skin were normal, and, pursuant to the directions on the container, applied the Rayette Goddess cold wave special solution for tinted and dyed hair.
The evidence further disclosed that prior to going to bed that night plaintiff discovered two sores on the back of her neck at the edge of the hairline. The following morning she noticed several spots on the front of her head and by mid-afternoon her head was completely covered with sores of a weeping nature. Plaintiff went to see Mrs. Jefferies who advised her to apply vase-line to the sores and consult a doctor if the irritation did-not clear up. The following morning, January 12, plaintiff went to see Dr. C. Omer West, a well-qualified dermatologist, who administered light treatment to plaintiff at his office, and, in addition, prescribed a solution for her to apply to her head at home. Plaintiff further stated that she had never had any trouble with her scalp and skin prior to or since the date in question although she had had many permanents both before and since.
Dr. West gave his expert opinion in regard to the causal relationship between the application of the permanent wave and plaintiff's injury. He stated this was one of the most severe conditions of this type he had ever seen; that it was a chemical burn, the whole scalp being red, inflamed, and with marked eczema. When asked for an answer to a hypothetical question propounded on the factual situation as hereinbefore related, and based upon a reasonable medical certainty, both from a medical and surgical standpoint, the doctor described the condition as a chemical trauma of a severe nature, characterized by marked chemical burn. He stated that he had seen many bums of this type from the time permanent waves were first started, and concluded by saying that from his experience with cold waves he would certainly have an opinion that plaintiff*s condition was caused by the solution used in waving the hair.
It is properly contended by defendants that the burden of proving a breach of an implied warranty was on the plaintiff and that that burden was not sustained simply by showing the permanent wave was applied and that she subsequently suffered injury. The proof must show facts and circumstances leading definitely to the conclusion that the product was • unwholesome and not fit for the purpose for which it was intended. (Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930.) When a manufacturer puts into a product to be sold for use a substance that has deleterious qualities and a tendency to harm its users, the manufacturer and not the user should shoulder the risk of injurious consequences. The same risk should be borne by the distributor and retailer who sell or apply the article to a prospective user who, relying on the retailer, is entitled to believe that the article is reasonably fit for the purpose for which it is sold. When the plaintiff was given the permanent wave she had no opportunity to examine or inspect the sealed package used by the operator or to read the directions thereon. She had no way of knowing it was sold only to licensed operators with caution as to its use, or that it contained dangerous ingredients when applied to the hair and skin. The plaintiff, having previously suffered no ill effects from hair waves and hair tints, and having been found by the operator not to be allergic, had every reason to believe that she would have no ill effects from the warranted permanent wave. The evidence was reasonably sufficient for the jury to have found plaintiff to be free from any allergy.
It was not incumbent upon the plaintiff to produce a chemical analysis of the product or medical testimony showing it poisonous or deleterious when the application of it to her hair and scalp was followed by symptoms from which the simple, reasonable and common-sense inference could be drawn by the jury that plaintiff suffered injury, though not permanent, as a direct result of the application of the permanent wave. This, coupled with the definite medical testimony of the dermatologist that in his medical opinion the chemical trauma suffered by the plaintiff was due to the solution used in waving plaintiff’s hair, was sufficient to establish a causal relation between the application of the Rayette permanent wave and plaintiff’s resulting injuries. (Swengel v. F. & E. Wholesale Grocery Co., supra; Cernes v. Pittsburg Coca Cola Bottling Co., 183 Kan. 758, 762, 332 P. 2d 258, 77 A. L. R. 2d 208.) Neither was it incumbent upon the plaintiff to exclude the possibility that the accident might have happened in some other way than that contended by her. We think the evidence was sufficient to support the findings of the jury and their general verdict.
Defendants next contend it was error for the court to refuse to give certain of its requested instructions. We will not attempt to list these requested instructions and those given by the court. Suffice it to say they have been examined, and we believe the instructions given adequately cover the matter contained in the requested instructions.
It is also contended that the court erred in its instructions given to the jury. We are of the opinion that the instructions given adequately stated the law as applicable to the facts in the instant case.
Other questions raised have not been overlooked but have been found to be without sufficient merit to justify reversal of the case. The judgment of the trial court is affirmed.
Price, J., dissents. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a workmen’s compensation case in which the claimant (appellant) became totally and permanently disabled while in the employ of respondent (appellee and cross-appellant).
Roth the workmen’s compensation commissioner and the trial court allowed compensation. The sole question involved in this appeal is the method or formula to be adopted in computing the compensation due claimant.
Appellant Ralph Waldroupe will be hereinafter referred to as claimant, and appellees and cross-appellants Herbert Kelley and his insurance carrier, Maryland Casualty Company, as respondent or employer.
A summary of the pertinent facts is as follows: Sometime in the spring of 1958 claimant and respondent entered into a contract whereby claimant was employed to work on the respondent’s farm for the sum of thirty dollars per month, payable in advance, for performing the labor necessary to raise crops and attend the cattle. Claimant was permitted to live in a house trailer located on the farm. There was no agreement made as to the money value of the use of the trailer as lodging. The farm consisted of 400 acres of pasture and 150 acres tillable soil. Maize was planted on 135 acres in 1958 and on 125 acres in 1959. There were twenty-three head of cattle, plus calves, during the summer and fall which required claimant’s attention. During the summer months he would check cattle twice a week. This would take approximately one hour each time, and occasionally two hours. Claimant kept no record of the time. During the winter months he fed the cattle hay and silage each day. In March, claimant started the spring farm work. He used the farm implements in doing so. He planted row crops, cultivated them, and assisted in putting up hay and filling the silo. During the planting, cultivating and harvesting seasons claimant would work ten hours per day. Under the - contract he was not to do any work on Sundays except tend the cattle. Claimant worked the number of hours and days per week necessary to perform whatever work was required on the farm. In his spare time claimant was permitted to work elsewhere.
The trial court found that the relation of employer and employee existed, that certain compensation and medical payments had been made by respondent, and that claimant was entitled to compensation for the remaining 388 weeks for general bodily disability; and further found
“9. That the contract of employment provided for wages at the rate of $30.00 per month; that where there is no hourly rate the daily wage must be determined and then the weekly wage found by multiplying that figure by the number of working days in the week, which the Court finds in this case to be six. It is therefore found that the daily rate was $0.99 and the weekly wage $5.94.
“As to the trailer, the Court finds that the money value of its occupancy was not fixed by the parties at the time of hiring. Therefore, in figuring the average weekly wage board and lodging must be included at $25.00.
“Therefore, the plaintiff’s average weekly wage was $30.94.” ($5.94 plus $25.)
The trial court entered judgment for weekly compensation for claimant in the amount of $18.56, based upon an average weekly wage of $30.94.
G. S. 1959 Supp., 44-511 provides in pertinent part
“(1) Whenever in this act the term ‘wages’ is used it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident . . . Board and lodging when furnished by the employer as part of the wages shall be included and valued at twenty-five dollars ($25) per week unless the money value of such advantages shall have been otherwise fixed by the parties at the time of hiring. (2) . . . Where the rate of wages is fixed by the hour the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of work involved.” ^
Claimant contends that under the facts of this case the average weekly wage for compensation purposes should be ascertained by reducing the annual earnings to the hourly rate at which the claimant was actually paid which shall be determined by dividing the number of hours actually worked into the money actually received. The weekly wage shall be determined by multiplying the hourly rate times hours worked per day times the days worked per week.
Respondent contends that the record discloses and supports the conclusions of the trial court that the weekly wage was $5.94.
Both parties contend that neither our statutes nor case law provide a formula for reducing an annual or monthly wage to a weekly wage in computing the amount of compensation due.
In calculating claimant’s weekly wage the trial court multiplied the monthly wage of $30 by twelve to obtain the yearly wage of $360, divided this amount by 365 to arrive at the daily wage of 99 cents, and multiplied the latter amount by six [working days per week] to obtain the $5.94 weekly wage; and inasmuch as the value of the lodging had not been agreed upon by claimant and employer, the court allowed the statutory allowance of $25 per week for lodging, thus making claimant’s total weekly wage $30.94.
It is apparent from the plain wording of subsection (1) of the aforementioned statute that the term “wages” means the money rate at which the service rendered is paid under the contract of hiring in force at the time of the accident. (Borchardt v. City of Leawood, 178 Kan. 705, 290 P. 2d 811; Leslie v. Reynolds, 179 Kan. 422, 295 P. 2d 1076; Workman v. Kansas City Bridge Co., 144 Kan. 139, 58 P. 2d 90.) It would appear that a simple formula is available to determine claimant’s weekly wage by multiplying $30 per month by twelve to obtain a yearly salary of $360, and dividing that amount by fifty-two, making $6.92 per week, plus $25, the money value of the trailer as lodging, resulting in a weekly wage of $31.92.
Under the contract, since claimant agreed to work for a specified wage of $30 per month, he cannot increase his pay rate for compensation purposes by reducing his yearly pay rate to an hourly basis on the number of hours actually worked per day and then compute it on a 48-hour week.
Respondent apparently relied on the language of subsection (2) of the mentioned statute. However, the contract of hiring did not fix the rate of wages by the output of the employee or by the hourly or daily wage — it fixed his wage by the month, and under the facts of the instant case that portion of the statute has no application to subsection (1). Inasmuch as the contract fixed claimant’s wage at thirty dollars per month and lodging, we are not permitted to make a new contract for the parties nor read into the statute in controversy something clearly not intended.
Employer’s cross-appeal is based upon the contention that the use of the house trailer on the farm by claimant was not furnished by respondent as a part of the wages of claimant but was merely available for use. The simple answer to this question is that the trial court found as to the trailer that the money value of its occupancy was not fixed by the parties at the time of hiring; therefore, in figuring the average weekly wage, board and lodging must be included at $25. (G. S. 1959 Supp., 44-511 [1]).
The record must be accepted as it is presented, and we are bound to accept as correct the findings of the trial court if there is substantial competent evidence to support them. (Murray v. Ludowici-Celadon Co., 181 Kan. 556, 559, 313 P. 2d 728.) We conclude the findings of fact made by the trial court on this issue were supported by substantial competent evidence and, in turn, the conclusions of law were supported by and consistent with the findings of fact.
The judgment of the trial court as to claimant’s appeal is affirmed as modified with directions to the trial court to enter judgment for compensation due claimant on the basis of a weekly wage of $31.92; and respondent’s -cross-appeal is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a final order appointing a receiver.
The facts required to dispose of the decisive appellate issue involved are not in dispute and may be stated thus:
On October 16, 1961, Bert Redfeam (hereinafter referred to as the plaintiff) filed a verified petition in the office of the clerk of the district court of Bourbon County against the Bronson Mutual Tele phone Company (hereinafter referred to as the defendant and/or the company). In this pleading plaintiff alleged in substance that the company was an unincorporated association consisting of 180 subscribers, of which he was one, who had joined together and were doing business as a telephone utility in an area surrounding the City of Bronson; asserted that the affairs of the company had been mismanaged to the extent that the company could no longer properly operate as a telephone utility and was about to become insolvent; and asked that a receiver be appointed to take charge of, collect and dispose of, its property, plant and facilities, and windup its business affairs.
Having filed the petition on the date heretofore indicated plaintiff, without having caused a summons to he issued thereon, and without having served summons or notice of any kind on defendant, appeared before the district court of Bourbon County and on the same day after an ex parte hearing procured an order and judgment from that tribunal granting him all the relief sought in his petition, including the appointment of a receiver to take charge of, and dispose of, the properties of the defendant company.
Subsequently, and on October 24, 1961, as authorized by G. S. 1949, 60-1209, the defendant perfected the instant appeal.
The principal, and we may add the decisive, contention advanced by defendant in this court is that the district court erred in appointing a receiver before the action had been commenced.
Under our code of civil procedure (G. S. 1949, 60-1208), if permitted by the provisions of G. S. 1949, 60-1201, dealing generally with the appointment of receivers, courts are authorized to appoint a receiver when an ex parte application is made by a plaintiff in a civil action. However, obviously in recognition of the well-settled doctrine that the appointment of a receiver ex parte and without notice to take over one’s property is one of the most drastic actions known to law or equity (See 45 Am. Jur., Receivers, § 90, pp. 81, 82; Feess v. Bank, 84 Kan. 828, 834, 836, 115 Pac. 563; Browning v. Blair, 169 Kan. 139, 145, 218 P. 2d 233), the provisions of 60-1208, supra, limit the power and authority of courts with respect to the granting of such applications by definitely indicating that orders appointing receivers can only be made at or after the commencement of an action.
Thus we come to the all-decisive question involved, mindful as we do so that in this case the record makes it appear, in fact the parties concede, that on the day the district court made its order appointing a receiver no summons had been caused to be issued on the petition. Under these circumstances can it be said or successfully argued the order appointing the receiver was made at or after the commencement of the action? We are convinced a negative answer to this question is required by the clear and unequivocal provisions of G. S. 1949, 60-301, which we pause here to emphasize is also a part of our code of civil procedure. It reads:
“A civil action may he commenced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.”
and by the numerous decisions of this court — listed in the Annotations immediately following 60-301, supra, as it appears in the statutes — holding that an action is commenced when a petition is filed and a summons is issued thereon.
Since, for the reasons heretofore indicated, the district court had no power or authority to appoint a receiver in the action on the date in question, its order and judgment appointing a receiver on that date was void and must be set aside.
The judgment is reversed with directions to set it aside and discharge the receiver appointed under its terms.
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The opinion of the court was delivered by
Robb, J.:
The appeals in these mandamus actions were consolidated in this court after the parties stipulated on January 8, 1962, that the decision in No. 42,445 would govern and constitute the decision in No. 42,446 and our consideration herein will, therefore, be confined to the appeal by Panhandle Eastern Pipe Line Company.
Pertinent facts stipulated by the parties are that the action was for recovery of $36,485.24 in taxes paid by plaintiff, the appellee here, pursuant to the oil and gas severance tax act subsequently declared unconstitutional by this court. Plaintiff produced natural gas from extensive leasehold acreage located in Texas, Oklahoma, and Kansas and in addition purchased natural gas produced (by others) in those states. This gas was transported and sold in interstate commerce in Texas, Kansas, Missouri, Illinois, Indiana, Ohio, and Michigan. Oil was also produced by plaintiff from such leasehold acreage in Kansas and during the existence of the oil and gas severance tax act oil was sold to the Century Refining Company of Garden City, Kansas. On the acreage leased by plaintiff seven-eighths of the gas produced was the property of plaintiff and, under the terms of the act (G. S. 1957 Supp., 79-4201 to 79-4215, incl.) plaintiff was obligated to pay a severance tax rate of 1% on seven-eighths of the value of the gas produced. Due to the penalties and interest provided by the act (79-4210) plaintiff, under written protest, had paid or caused to be paid the total sum of $36,485.24 and therefore sought to recover a refund of that amount by mandamus action. Plaintiff had awaited the testing and determining of the constitutionality of the act by this court in preference to availing itself of judicial proceedings or administrative relief through the board of tax appeals in order to avoid a multiplicity of suits.
The written protest notices accompanying each payment of the tax on the gas or oil contained the following language:
“. . . or to take such further action as it deems appropriate to recover the sums so paid, in the event that the Act is by the courts declared unconstitutional.”
Upon receipt of each protested payment of severance tax, the director of revenue retained the letter of protest in his files and forwarded the money to the state treasurer who credited it to the general fund. All severance tax payments were credited to the general fund daily from August 6, 1957, to and including January 30,1958. Plaintiff has not been refunded any of the money it paid.
Plaintiff instituted proceedings for administrative relief (G. S. 1949, 79-1702) with the board of tax appeals created and authorized to act under G. S. 1957 Supp., 74-2433, et seq., and after hearing, that board, in concluding it did not have jurisdiction, made the following order on April 9, 1959:
“After being fully advised in the premises, the Board finds that die severance tax enacted by the legislature in 1957, is an excise tax in accordance with State, ex rel., v. Kirchner, 182 Kan. 622. Further, that this Board has no authority to order a refund under G. S. 1949, 79-1702, of an excise tax, and that the only authority which said Board has under this statute is in regard to ad valorem tax. Therefore, the application should be denied.”
Finally, it was stipulated that plaintiff had filed its motion in the court below for an alternative writ of mandamus and the writ issued pursuant thereto is the one presently before this court.
On May 13, 1960, the trial court permitted plaintiff to amend its motion for alternative writ of mandamus as follows:
“10. That refusal to refund said invalidly assessed taxes constitutes a deprivation of plaintiff’s property without due process of law and denies to plaintiff the equal protection of the laws of the State of Kansas, all in violation of the 14th amendment to the Constitution of the United States.”
In rendering judgment for plaintiff the trial court, in a letter dated December 5,1960, in pertinent part stated:
“Plaintiff paid the assessed taxes involuntarily, under duress and coercion, with proper protest. This protest should have been forwarded by the Director of Revenue to the State Treasurer.”
In its formal journal entry of judgment the trial court, in addition to overruling defendant’s motion for new trial, found that plaintiff had involuntarily, under duress and coercion, and with proper protest paid $34,121.91 and that Century Refining Company, for plaintiff’s account, had involuntarily, under duress and coercion, and with proper protest paid $2,363.33 under the oil and gas severance tax act which has since been declared unconstitutional by this court. (State, ex rel., v. Kirchner, 182 Kan. 437, 438, 439, 321 P. 2d 183; 182 Kan. 622, 623, 624, 322 P. 2d 759.) The assessment became invalid, the tax paid should have been refunded, plaintiff was deprived of its property without due process of law and plaintiff is entitled to a peremptory writ commanding the state treasurer to refund forthwith to plaintiff the sum of $36,485.34. The writ was ordered issued.
On January 4, 1961, the trial court issued the peremptory writ commanding the state treasurer immediately upon receipt of the writ to refund $36,485.24 to plaintiff and on the same date defendants perfected this appeal.
Article 2, section 24, of our state constitution provides:
“No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.”
From the sequence of facts of this particular case it may appear it would have been better, as the trial court found, for the director of revenue to have turned plaintiff’s protest notices over to the state treasurer with the tax payments instead of placing the notices in his files and, in turn, for the treasurer to have made some attempt to hold the amounts paid in a special fund. However, no constitutional or statutory requirements exist for the director of revenue or state treasurer so to do and no case authority has been cited showing they have any such duties under the law and the facts as here presented. In view of the above-quoted insurmountable constitutional provision, the courts cannot now say the state treasurer can reach into any fund and pay back to the plaintiff the sum of the protested taxes although morally and in good conscience it would seem plaintiff is entitled to recover back the taxes it paid under the severance tax act.
Plaintiff relies on Greenabaum v. King, 4 Kan. 332, where in the first paragraph of the syllabus it was stated:
“An illegal tax, paid under duress, to prevent seizure of goods, may be recovered of the county treasurer, if he had notice of the facts, and of the involuntary payments, while the money was yet in his hands.”
Obviously a situation involving a county treasurer is different from one involving the state treasurer and a thorough reading of the opinion makes the difference even more convincing in view of the facts of that particular case.
Our attention is directed to two more recent cases: Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563, and Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836. The Kittredge case was a mandamus action brought by a plaintiff who paid taxes under protest. There the state treasurer received the remittance and placed it in an account designated, “the protested inheritance and special tax account.” The statute under which the tax was paid was declared unconstitutional and the writ of mandamus allowed but in that instance the money had never been placed in the general revenue fund. Other details of that case are not pertinent here but mention should perhaps be made that the opinion included very strong dicta to the effect that a plaintiff has another remedy where an action is not commenced until the illegal tax money has been merged into the state’s general fund, and further commented:
“. . . under our practice, the plaintiff would probably have to go to the legislature for relief.” (p. 695.)
In the Felten Truck Line case the question did not come up in the same manner as it has in our present case. There a part of the taxes paid under protest was paid into the annual school fund, which could not be reached by plaintiffs, and prior to the payment of the remainder of the taxes under protest, this court ordered such taxes to be impounded in a trust fund account or special account as protested taxes. Subsequently the court ordered the taxes refunded and paid out of this fund by the state treasurer.
We have read and considered other authorities submitted by the parties but we think the above are sufficiently determinative of the question and we are compelled to conclude that plaintiff, by an action in mandamus (G. S. 1949, 60-1702, et seq.), cannot recover back the taxes it paid under protest notwithstanding the fact the law under which such taxes were paid was declared unconstitutional.
Reversed.
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The opinion of the court was delivered by
Fatzer, J.:
In this case the husband was granted a divorce from the wife, and she has appealed. The parties had no children, and property rights are not involved. The sole question is whether there was substantial evidence to support the district court’s judgment awarding a divorce to the husband upon the grounds of extreme cruelty and gross neglect of duty.
The parties had been married approximately 81 years when the husband filed his petition for a divorce on August 27, 1960. It would serve little purpose to detail the testimony of the various witnesses who testified in plaintiff’s behalf, and we make only a general summarization of the evidence which tends to support the district court’s finding of extreme cruelty and gross neglect of duty on the part of the wife. The evidence disclosed that, through a long and persistent course of action, conduct on the part of the wife consisting of constant nagging, bickering, unjust accusations, lack of peace and quiet in the home, complete rejection of sexual life for nine years, and outbursts of physical violence, when coupled with a heart ailment for which the husband had been hospitalized a short time before the action was commenced was sufficient to grant the divorce on the ground of extreme cruelty. All of tie foregoing with the exception of the rejection of sexual life and physical violence was amply corroborated by witnesses related to the wife.
During the pendency of the action both parties submitted to examination by a marriage consultant psychologist and his summary of the interview with the wife was that she was obsessively preoccupied with suspiciousness which she projected into her husband’s actions and relationships; that she showed evidence of some severe disturbance in her sexual responsiveness, and that she busied herself with obsessive repetitive thinking, preoccupied with the suspicious things which rendered her most unhealthy to live with. Unquestionably, the wife’s course of conduct resulted in a substantial impairment and threat to the husband’s physical as well as mental health. (Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755.) Moreover, the evidence justified the district court, considering the husband’s evidence alone, in finding extreme cruelty on the part of the wife under the rule that any unjustifiable and long practiced course of conduct by one spouse toward the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty. (Paul v. Paul, 183 Kan. 201, 326 P. 2d 283.)
No specific findings of fact were requested or made and the district court was justified in granting the husband a divorce for either extreme cruelty or gross neglect of duty. There is a considerable overlapping in those grounds for divorce. The expression, “gross neglect of duty,” is indefinite, and it is difficult to lay down any general rule by which every case can be determined to be within or without its limits. Each case must be examined by itself (Smith v. Smith, 22 Kan. 699.) Cruelty has been recognized as a possible element in gross neglect of duty. (Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165.)
The general finding in favor of the husband that the wife had been guilty of extreme cruelty and gross neglect of duty carries with it all the facts necessary to support the judgment, and this court will not weigh evidence where a general finding is supported by substantial testimony. (Davis v. Davis, 162 Kan. 701, 178 P. 2d 1015; Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95; Rosander v. Rosander, 177 Kan. 45, 276 P. 2d 338.)
Our review of the record compels the conclusion that the judgment must be affirmed.
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case.
Because of our disposition of the case it is unnecessary to discuss matters pertaining to the claimant’s injury.
On February 10, 1960, the examiner before whom the matter was heard found that compensation must be denied on the ground that claim therefor was not made within 180 days following the date of the accident, as required by G. S. 1959 Supp. 44-520a.
The finding of the examiner was filed in the office of the compensation commissioner on February 17, 1960. That official took no action in the matter until May 25, 1960, on which date he directed that the matter be heard by a “panel” of examiners. It was heard on June 24, 1960. On July 22, 1960, the commissioner made an award in favor of claimant.
On appeal, the district court approved and adopted the findings of the commissioner, and in addition found and held:
"I. The award and decision of the Examiner, Lee R. Meador, was made and rendered on February 10, 1960. It was originally filed in the office of the Workmen’s Compensation Commissioner on February 17, 1960; thereafter for reasons not appearing in the record it was shown as also being filed on April 16, 1960, and again on May 18, 1960. Following the last filing date shown on said original award, the Workmen’s Compensation Commissioner did on May 25, 1960, advise parties by letter that he was not satisfied with said award and further hearings were had before a panel of Examiners in Topeka on the 24th day of June, 1960. Thereafter, and on the 22nd day of July, 1960, the Commissioner entered the decision and award appealed from.
“2. General Statutes 1949, 44-527 and 44-549 that ‘The award, decision and finding of an examiner when filed in the office of the Commissioner shall be deemed to be the award, finding, decision or order of the Commissioner and shall be considered as approved unless the Commissioner shall within 20 days of the date of receipt thereof, disapprove the same in writing, notify each of the parties of his disapproval. . . .’ The Commissioner did not notify the parties in writing of the disapproval of the award and decision of the Examiner within 20 days of its filing in the office of the Commissioner on February 17, 1960, nor within 20 days of its apparent refiling on April 16, 1960, but did so notify them within 20 days of its apparent third filing on May 18, 1960.
“3. Whatever irregularities occasioned the apparent triple filing at different dates of the decision and award of the Examiner in the office of the Commissioner cannot, in the light of the well established rule of construing the Statutes liberally in favor of the claimant, be held to preclude the Commissioner from entering the award and decision he entered on July 22, 1960, on the theory that the Commissioner did not notify the parties of the disapproval within the statutory time after the first or second filing dates shown on the Examiner’s decision and award, rather than within the statutory time following the third filing date shown on said Examiner’s decision and award.”
Respondent employer and its insurance carrier have appealed.
G. S. 1961 Supp. 44-549, in pertinent part reads:
“The award, finding, decision or order of an examiner when filed in the office of the commissioner shall be deemed to be the award, finding, decision or order of the commissioner.”
G. S. 1949, 44-527, in pertinent part reads:
“The commissioner shall accept, receipt for, and file every . . . finding, award, . . . and record and index same, and every such . . . finding, award, . . . shall be considered as approved by the commissioner and shall stand as approved unless said commissioner shall, within twenty (20) days of the date of the receipt thereof, disapprove same in writing and notify each of the parties of his disapproval, giving his reasons therefor, sending a copy of the same to each of the parties by registered mail: . . .”
Respondents vigorously contend the provisions of the above statutes mean just what they say — that—under 44-549, the award, finding, decision or order of an examiner when filed in the office of the commissioner shall be deemed to be the award, finding, decision or order of commissioner, and that, under 44-527, such finding or award shall be considered as approved by the commissioner and shall stand as approved unless he shall within twenty days disapprove the same in writing and notify each of the parties of such disapproval, giving reasons therefor, and that such notice be given by registered mail.
In our opinion the contention is well taken and must be sustained.
The finding of the examiner was filed with the commissioner on February 17, 1960. For reasons not shown by the record the commissioner took no action whatever until May 25, 1960. The subsequent “refiling” of the examiner s finding did not alter the situation. One of the basic principles of the compensation act is that the processing of claims be handled expeditiously and determined with certainty and finality. We are not here concerned with proceedings under the review and modification statute, G. S. 1961 Supp. 44-528. Suppose, for example, an examiner makes a finding and award in favor of an injured workman. It is filed in the office of the commissioner but that official takes no action thereon for several months and then enters an order setting aside the finding and award of the examiner and denying compensation. In view of the two above-quoted statutes and the liberal construction to be given the compensation act in favor of an injured workman — could it successfully be contended that the action of the commissioner in disapproving the award by the examiner and denying compensation would be valid? The rule — which is just as broad as it is long — must be applied consistently, irrespective by whom invoked.
The finding of the examiner was not disapproved and notice thereof given within twenty days following the receipt of such finding in the office of the commissioner. Under the mentioned statutes, therefore, the finding stood as approved and became final, and the commissioner, several months later, was without authority to disapprove the same. On appeal, the district court likewise was in error.
The judgment is therefore reversed.
Robb, J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
These appeals are from separate orders sustaining demurrers to plaintiff’s third and fourth amended petitions.
The facts material to a determination of the issues are substantially as follows:
The plaintiff, John Hanson, hereinafter referred to as Hanson, was an employee of the Eby Construction Company of Wichita, Kansas. In January, 1959, the company was engaged in building a new residence hall on the University of Kansas campus at Lawrence, Kansas. The defendant, Robert Schenke, hereinafter referred to as Schenke, was the company’s foreman on the construction project. Hanson is the brother-in-law of Schenke and made his home with him in the suburbs of Kansas City, Kansas. The company furnished Schenke with a pickup truck with which to travel to and from work. On many occasions Hanson rode to and from work with Schenke with the knowledge and consent of the company.
On the morning of January 13, 1959, at approximately 7:00 a. m., Hanson was riding to work in the truck being driven by Schenke. There was a heavy fog, and at the intersection of 94th Street and Highway 40 the truck collided with the rear end of a school bus being driven by the defendant, Zollars, which belonged to the Washington High School District No. 2. Both Hanson and Schenke were seriously injured. The pickup truck was furnished Schenke by the company in order that he could be continually on call and at the time and place of the collision Schenke was acting as agent of the company in the furtherance of its business. The company carried workmen’s compensation insurance with the defendant, American Employers Insurance Company.
The company was the holder of a private carrier permit issued by the State Corporation Commission which covered all the vehicles used in its business as a general construction contractor. The company also had been issued a general liability policy by American Employers Insurance Company, which was filed with the Secretary of State pursuant to G. S. 1957 Supp., 66-1,128 (now G. S. 1961 Supp., 66-1,128), to qualify for the private carrier permit.
Hanson first filed a petition in which the Washington High School District No. 2, Zollars, the driver of the school bus, and the Eby Construction Company were made defendants. The court sustained a demurrer filed on behalf of the Washington High School District No. 2. Hanson then filed an amended petition in which Zollars and the Eby Construction Company were made defendants. A demurrer by the Eby Construction Company to this first amended petition was sustained. Hanson then filed a second amended petition in which the Eby Construction Company, Schenke and Zollars were made defendants. A motion to strike by the Eby Construction Company was sustained as to the second amended petition on the ground that Hanson’s claim was covered by workmen’s compensation.
Hanson then filed his third amended petition in which Zollars, Schenke and American Employers Insurance Company, the insurer under the private carrier permit, were made defendants. The court sustained the insurer’s demurrer to such pleading and Hanson appealed from that order.
The third amended petition was filed on December 2, 1960. The demurrer was sustained on June 23, 1961. During this same period, Hanson commenced and prosecuted successfully a workmen’s compensation claim against the Eby Construction Company and its insurer, American Employers Insurance Company, one of the defendants herein. In the workmen’s compensation case, Hanson claimed and received compensation for injuries “arising out of and in the course of his employment.” He received an award of compensation on June 12, 1961.
On August 15, 1961, Hanson filed his fourth amended petition, naming the same parties defendants as in the third amended petition. The fourth amended petition was substantially the same as the third amended petition insofar as the questions presented on appellate review are concerned. A demurrer was then filed by American Employers Insurance Company and sustained by the court. Thereupon Hanson perfected an appeal from the order sustaining the demurrer to the fourth amended petition.
By stipulation of the parties the above mentioned appeals were consolidated for hearing and determination before this court.
Hanson concedes his only remedy against his employer is under the Workmen’s Compensation Act but contends that having stated a good cause of action against Schenke, who at the time of the injury was operating a vehicle of Eby Construction Company, a K. C. C. permit holder, with its permission and on its business, he is entitled to join as a named defendant the insurance carrier for the permit holder, American Employers Insurance Company, pursuant to G. S. 1957 Supp., 66-1,128 (now G. S. 1961 Supp., 66-1,128). This statute provides:
“No certificate or license shall be issued by the state corporation commission to any . . . ‘private motor carrier of property,’ until and after such applicant shall have filed with, and the same has been approved by, the state corporation commission, a liability insurance policy . . . which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons . . . resulting from the negligent operation of such carrier:
The appellee, American Employers Insurance Company, hereinafter referred to as the insurer, concedes that a member of the general public may sue a permit holder’s insurance company direct without making the permit holder a party. (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.) It further contends, however, that before the insurance company can be sued direct the plaintiff must be able to state a cause of action against the permit holder. The contention is sound.
Hanson here admits that he cannot sue his employer, the permit holder, for a common law tort because his claim fell under the Workmen’s Compensation Act insofar as his employer was concerned. He contends, however, that he can sue the employer’s foreman and that the insurance carrier of the permit holder is liable under the provisions of the policy which states that the word “insured” “includes the named insured and also includes . . . any person while using an owned automobile . . . provided the actual use of the automobile is by the named insured or with his permission.”
The difficulty with this contention is that the pickup truck was furnished Schenke by the company so that he could be continually on call and at the time and place of the collision Schenke was acting as agent of the company in furtherance of its business. It is so alleged in Hanson’s third and fourth amended petitions.
In Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756, it was stated:
“The rule deducible from the above authorities is that the liability assumed by tire insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has ‘from the negligent operation’ of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.
“If the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy it states a cause of action against the insurer. This is the basis for the holdings of the court that one who sustains injury in his person or property by the negligent operation under the permit of the permit holder may sue both the permit holder and the insurer, or either one of them, and the action is in tort, not in contract.” (pp. 90, 91.) (Emphasis supplied.)
In Billups v. American Surety Co., 170 Kan. 666, 228 P. 2d 731, in considering what the petition must allege to state a cause of action against the insurer of a licensed contract carrier, we quoted with approval the language in the Fitzgerald case set out above.
The insurer is liable for the torts of the insured. If the insured has no tort liability there can be no liability on the part of the insurer.
Hanson’s second contention is that since Schenke was driving the truck in question with his employer’s permission, Schenke falls within the definition of an “insured” under the policy and is covered by the provision which defines “insured” as follows:
“The 'unqualified word ‘insured’ includes the named insured and also' includes . . . (2) under coverages A and C any person while using an owned automobile . . . provided the actual use of the automobile is by the named insured or with his permission.”
He further contends that although Schenke was within the course of his employment at the time of the collision, the plaintiff as a matter of fact was not, and therefore the following exception in the policy, permitted by the rules of the State Corporation Commission, does not apply:
“The insurance . . . does not apply . . .: (c) to any employee with respect to injury ... of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer.”
and he is therefore entitled to sue the insurer under the terms of the policy.
If Hanson was in the course of his employment at the time of the accident, he comes clearly within the exception clause of the policy.
This question would appear to be determined by the provisions of G. S. 1949, 44-508(Jc), which states:
“The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”
Hanson alleges in his petition that his injury was the result of the negligence of Schenke, who was acting as the agent of Hanson’s employer, in furtherance of the employer’s business, while Hanson was being transported to work in a company truck. The negligence of the agent would be attributed to the employer.
The statute quoted above leaves no doubt but what the phrase “arising out of and in the course of employment” covers an employee going to or from work if the injury is the result of the employer’s negligence.
It would be entirely inconsistent to say that Hanson was within the course of his employment under the provisions of G. S. 1949, 44-508 (/c), insofar as his employer, Eby Construction Company, is concerned but not within the course of his employment insofar as the exception clause in the insurance policy is concerned. The terms of the insurance policy purport to insure the employer, Eby Construction Company, against liability for its tortious acts. It does not purpose to insure Schenke for his individual torts unconnected with his employment and which do not also subject his employer to liability. Under the exception clause in the policy Hanson had no claim against the American Employers Insurance Company. Although this court has not heretofore passed directly on the foregoing question, persons interested in pursuing the matter further should resort to Lumber Mutual Casualty Ins. Co. v. Stukes, 164 F. 2d 571; Birrenkott v. McManamay, 65 S. D. 581, 276 N. W. 725; Bonney v. Citizens’ Mut. Auto Ins. Co., 333 Mich. 435, 53 N. W. 2d 321; Bernard v. Wisconsin Automobile Ins. Co., 210 Wis. 133, 245 N. W. 200.
What has been heretofore stated and held requires a decision that the trial court’s action in sustaining the demurrers to the third and fourth amended petitions was proper and must be upheld.
Therefore the orders and judgments involved in these consolidated cases are affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of a habeas corpus action involving custody of a minor child of divorced parents.
The petitioner, Velma (Tomaselli) Leverette, and respondent, Santo Tomaselli, formerly were wife and husband. On October 11, 1955, they were divorced by a decree of the district court of Sedgwick county. They were the parents of two children — a one-year-old son and a two-year-old daughter. The mother was granted custody of the son. Custody of the daughter was granted to the father. The decree specifically stated that the court retained jurisdiction of the parties and the minor children for the purpose of making future orders concerning the welfare of the children.
The case before us involves only the daughter.
Three weeks after the divorce the mother was married to her present husband- — a Mr. Leverette — and they reside in Florida. The mother still has custody of the son.
Following the divorce in 1955, the father brought the daughter to the home of his parents — John and Jennie Tomaselli — in Arma, Crawford county. He and his daughter continued to reside there for some time until, due to economic conditions in the area, he went to California to seek employment. The daughter remained in the home of his parents in Arma. He has spent his vacations back in Arma with his daughter and has provided well for her support and education. Except for a period of about two years while he was working in California, the father and daughter resided in the home of his parents in Arma. As stated, the daughter has been there continuously. The father has not remarried.
No proceedings have been had in the district court of Sedgwick county with respect to the 1955 custody order of that court. In the meantime the mother has been residing in Florida, and the father and daughter have been living as above related.
In the spring of 1961 the mother came from Florida and commenced this habeas corpus proceeding in the district court of Crawford county to secure possession and custody of the daughter. The father and his parents were named as respondents in the proceeding. They moved to dismiss the petition on the principal grounds that the 1955 custody order of the district court of Sedgwick county remained in full force and effect, and that that court was the proper forum in which to institute proceedings relating to custody, and that the district court of Crawford county was without jurisdiction of the parties or the subject matter.
This motion to dismiss was denied, whereupon respondents filed their answer — the contents of which need not be related.
Following a full hearing, at which considerable evidence was introduced, the court found:
“. . . that it is for the best interests of the minor child that the custody of the minor child, Cheryl Dean Tomaselli, should be removed from Santo Tomaselli and vested in the mother, plaintiff herein.”
Respondents have appealed from that ruling.
We think it unnecessary to take up and discuss in detail the various arguments made by the parties in support of their respective contentions — and instead — will go right to the heart of the matter.
In the first place, let it be said that we are not here concerned with the question of “fitness” of either the mother or father to have custody of the daughter. In the second place, this is not a “contest” between a parent and grandparents for custody, such as was present in Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658, and In re Vallimont, 182 Kan. 334, 321 P. 2d 190. Also, the question here is not controlled by Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Niccum v. Lawrence, 186 Kan. 223, 350 P. 2d 133, and Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26, in each of which cases the parent to whom custody had been granted had left the state with the child and had established a domicile in another state. And neither is the question here controlled by what was said in Love v. Love, 188 Kan. 185, 360 P. 2d 1061, which had to do with the question of venue of a habeas corpus action where the parents had not been divorced and therefore no custody order was involved. Further, the facts of this case readily distinguish it from the recent case of Robben v. Robben, 188 Kan. 217, 362 P. 2d 29.
Here the father, to whom custody had been granted, took the daughter to the home of his parents in Arma — at which place the four of them continued to reside for several years. Later, due to economic conditions, the father went to California where he obtained employment. The evidence is entirely consistent, however, with the fact that he still “lived in Arma” but was working in California. In fact, he so testified. He was not “domiciled” in California so as to render the daughter a resident of that state within the meaning of the statement found in Wear v. Wear, 130 Kan. 205, 222, 285 Pac. 606, 72 A. L. R. 425, to the effect that the domicile of a minor child of the parties is that of the one of them with whom it lives or who, by a competent court, has been given its custody. Except for a visit to California, the daughter has at all times been in the home of her father’s parents in Arma — which, in view of the fact the father has not remarried and set up a home of his own — seems entirely logical and the natural course to have followed.
Under the facts of this case the father and daughter were domiciled in Kansas. By the provisions of G. S. 1959 Supp. 60-1510, the district court of Sedgwick county had a continuing jurisdiction over the custody of the daughter as long as she was domiciled in Kansas (see Leach v. Leach, above, at p. 339). It follows, therefore, the district court of Crawford county had no jurisdiction to entertain this habeas corpus action.
The judgment is reversed with directions to dismiss the action. | [
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The opinion of the court was delivered by
Wertz, J.:
Defendant (appellant) Matthew Johnson appeals from the conviction of forgery in the second degree as defined by G. S. 1949, 21-608. Upon notice and proof of a prior conviction of a felony he was sentenced under the habitual criminal act (G. S. 1949, 21-107a) to confinement in the Kansas State Penitentiary.
The forged instrument was a check drawn on the First National Bank of Topeka, dated July 24, 1959, in the sum of $88.54. The purported drawer of the check was stamped in red ink as “Rinner Construction Company,” signed “George Rinner,” and the purported payee was typewritten as “Charles U. Rodgers.”
The offense of forgery as charged in the information was committed at Falley’s Market, Tenth and MacVicar streets, in Topeka, Shawnee county, where the defendant uttered the check with the forged signature of “Charles U. Rodgers” endorsed on the back of the check.
Defendant filed a plea of alibi contending that he was not within the county of Shawnee at the time and place of the alleged offense. The defendant did not take the stand in his own defense but relied on the testimony of one Helen Gates of Kansas City with whom he was living at the time in question. However, she testified that the defendant was away every day, leaving at nine o’clock in the morning and not returning until around six o’clock in the evening, and as far as she knew he could have been anywhere when he was away from home.
The evidence disclosed that James Lytle, store manager for Falley’s Market, testified that in the late afternoon of July 24 defendant represented himself to be Charles U. Rodgers and presented the check to Lytle for payment; that Lytle cashed the check and paid the amount thereof to defendant. Before defendant’s arrest Mr. Lytle was shown five or six photographs or “mug shots” and he identified defendant’s picture as being the same person who submitted the check to him for cashing. There was evidence that Charles U. Rodgers was a fictitious name.
Defendant was subsequently arrested and had in his possession a red ink stamp pad and rubber stamps, one of which had on it the wording of a name of a construction company. He was interrogated about the check in question but denied any knowledge of having anything to do with the check. At that time defendant was asked to give samples of his handwriting and was warned that if he did such samples could be used against him in court, to which the defendant answered that he had no objection to so doing and freely and voluntarily gave several samples of his handwriting.
Three handwriting experts testified from examination of the check and samples of handwriting freely given by the defendant that the endorsement appearing on the check in question was in the handwriting of defendant Matthew Johnson.
Defendant first asserts there was a variance between the charge and the proof involved. The information charged the defendant had forged the endorsement of Charles U. Rodgers, a fictitious person. It is his contention that the name appearing on the check as payee read “Charles U. Rodgers” while the endorsement read “Charles V. Rodgers.” The testimony of the handwriting experts shows that the defendant, when asked to write the letter “U,” wrote it in such a way that it appeared to be and could be taken to be a “V.” One of the experts testified that it was a “U” and it was apparent from the samples of defendant’s handwriting that the letter “U” is similar to the letter “V.” However, the point is of no importance since it is inconceivable that this trifling variance could have prejudiced or misled defendant in making his defense. The state alleged in the information, and its evidence tended quite clearly to show, that the name of the payee and endorser was that of a fictitious person. In some of our early cases more consideration was given to the matter of variance between pleading and proof than is now accorded it. The law is now settled that only a material variance, one which may have misled a defendant to his prejudice in preparing and making his defense, is of any consequence in an appellate review. (State v. Earley, 119 Kan. 446, 239 Pac. 981.)
Inasmuch as all of the expert witnesses testified that the endorsement on the back of the check was in defendant’s handwriting it cannot be conceived how the question whether the forged letter was a “U” or a “V” is of the slightest materiality.
It is next urged that there was no evidence to show that anyone saw defendant endorse the name “Charles U. Rodgers” on the check. It is always difficult' and generally impossible to prove the venue of the actual physical forgery or alteration of an instrument. As a rule the forger does not remain long in one place nor does he ply his trade in the open; thus, eyewitnesses to his unlawful acts are extremely rare. For these reasons it would seem to be essential, in order that justice may be done, that venue be established by proof of the facts and circumstances introduced in evidence and from which venue may be fairly and reasonably inferred. Consequently it would seem reasonable that where there is evidence a forged instrument was uttered in a given county such evidence would warrant a presumption that the forgery itself was committed in that county. (20 Am. Jur., Evidence, § 1220, p. 1074; Anno. 164 A. L. R. 649.)
To sustain a charge of forgery it is not necessary to prove the manual execution of the false signature by the defendant. The unexplained fact that the defendant had possession of the forged instrument, knowing its character and intending to pass it, with other circumstances here present, was sufficient to justify an inference that he forged it. Moreover, the unexplained fact of guilty possession or of uttering a forged instrument in the county of the prosecution, with little or no further evidence, is enough to support a finding of the forgery having been committed there; and the evidence in this case is held sufficient for the purpose. (State v. Earley, 119 Kan. 446, 239 Pac. 981; State v. Phares, 120 Kan. 172, 243 Pac. 266; State v. Brown, 145 Kan. 247, 250, 251, 65 P. 2d 333; State v. Maxwell, 151 Kan. 951, 963, 102 P. 2d 109.)
In the instant case there was direct and strong circumstantial evidence defendant forged the endorsement. Further, there was no reasonable explanation that satisfied the jury as to how the defendant acquired possession of the check.
Defendant further asserts that the court erred in refusing to give his special requested instruction. From an examination of the record there are only two instructions set forth. One of these instructions clearly embodies all the necessary elements of defendant’s request, yet he made no objection to the instruction as given nor did he request a more detailed instruction; therefore, he cannot now be heard to complain.
Defendant also asserts that the court erred in giving certain instructions. All of the instructions are not here. We are advised that there were some twenty or twenty-five instructions given by the trial court. There was nothing in the record to show that the defendant objected to any of the instructions given.
We have repeatedly held that unless an instruction to which an objection is made is a clear and prejudicial statement of the law it can be reviewed only when other instructions which may or may not modify its intent and effect are made a part of the record, in order that all may be examined together. (State v. Leigh, 166 Kan. 104, 109, 199 P. 2d 504; Beye v. Andres, 179 Kan. 502, 504, 296 P. 2d 1049.) The two instructions set out as given were not a misstatement of the law under the evidence presented.
Other points argued by the defendant have been covered in the discussion of the foregoing points and we find nothing in the record to warrant a change in the views heretofore expressed.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for false representations. The district court sustained the defendant’s motion for judgment on the pleadings and the plaintiffs have appealed.
Plaintiffs commenced this action on March 22,1960. The petition is summarized and quoted as follows: Plaintiffs are husband and wife and reside in Frontenac, Crawford County, Kansas. On March 5, 1952, defendant was the owner of Lot 7 in Block 8 in the Cherokee and Pittsburg Coal and Mining Company’s First Addition to the City of Frontenac, and on that date he sold the real property to the plaintiffs. The petition alleged:
“. . . Thai said defendant represented to said plaintiffs and led them to believe, that the northern boundary line of said lot was 25 feet north of the house located on said land aforesaid and that said plaintiffs relying on the statements of said defendant did purchase the above described land and the house located thereon on March 5, 1952.
“That on March 21, 1960, the said plaintiffs had a survey made of said land aforesaid and the survey revealed that the house located on the aforesaid land extends some two feet over on the lot adjacent to the land purchased by plaintiffs, which is Lot Nine (9) in the aforesaid block and addition, and that said Lots Nine and Eleven are now owned by the defendant.
“That tlie said defendant is a non-resident of the State of Kansas, and his post office address and residence is 7601 Union Avenue, Cleveland, Ohio.”
Plaintiffs alleged they had been damaged in the amount of $3,000 by the defendant’s false representations. The prayer was that they recover judgment against the defendant in that amount.
The defendant answered and admitted that he was a nonresident of Kansas and that his correct post-office address was 7601 Union Avenue, Cleveland, Ohio; that he sold the property in question to plaintiffs on March 5,1952; that on the date of the sale, all improvements were located well within the boundary lines of Lot 7; that he was the owner of Lot 9 in the described addition to the city of Frontenac, and denied each and every allegation and statement in the plaintiffs’ petition except those specifically admitted.
In his cross-petition defendant alleged that subsequent to the sale of the real estate to plaintiffs, the buildings located on the premises were destroyed by fire and that a new dwelling was built by plaintiffs on part of Lot 7 and extended two feet over and onto Lot 9 in the described addition to the city of Frontenac, and that by virtue of his ownership of the legal title to Lot 9, he was entitled to possession thereof, but that the plaintiffs unlawfully and wrongfully kept him out of possession of the two feet of Lot 9. The defendant prayed for judgment for possession of the two feet on Lot 9, and for costs of the action.
The plaintiffs filed a reply to the defendant’s answer and cross-petition and denied all of the allegations in those pleadings in contravention to the allegations and statements set forth in their petition. Thereafter the defendant filed a motion for judgment on the pleadings upon the ground that the pleadings filed by the parties failed to state facts sufficient to constitute a cause of action against the defendant, and moved for entry of judgment in his favor and against the plaintiffs. The plaintiffs have appealed from the order sustaining that motion.
G. S. 1949, 60-309, provides in part:
“If when a cause of action accrues against a person he be out of the state . . . the period limited for the commencement of the action shall not begin to run until he comes into the state . . . and if after the cause of action accrues he depart from the state . . . the time of his absence . . . shall not be computed as any part of the period within which the action must be brought. ...”
Notwithstanding the scarcity of facts alleged and admitted by the parties that the defendant has been and is presently a nonresident of the state of Kansas, the court is of the opinion it cannot be said that, giving those allegations all the reasonable inferences and intendments to which they are entitled, the petition did not allege a cause of action against the defendant. In view of the material issue of fact raised by the defendant’s answer and cross-petition and by plaintiffs’ reply to those pleadings, the district court erred when it sustained the defendant’s motion for judgment on the pleadings. Where material issues of fact are joined by the pleadings it is error to sustain a defendant’s motion for judgment on the pleadings and to enter judgment for the defendant thereon. (Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P. 2d 992; Young v. Barker, 185 Kan. 246, 250, 342 P. 2d 150.)
The judgment is reversed. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmens compensation case. The commissioner and district court denied compensation, and claimant has appealed.
A very brief résumé of the facts will be sufficient for the purposes of this case. Claimant, Charles H. Krug, had been in business for himself since 1950, operating under the name of Krug Construction Company. Much of his work consisted of “earth moving,” under contracted jobs. He ran his own business, figured his profit and loss, and made his own quarterly estimate income tax returns. During the fall of 1956 and the spring of 1957 Krug contracted to do various earth-moving jobs for the O. A. Sutton Ranch. He owned two heavy earth-moving machines which he used in his business.
On April 15, 1957, Krug Construction Company was engaged in building a bird pond under contract for the Sutton Ranch. Purkeypile, Krug’s employee, was doing the work with a bulldozer owned by Krug. Krug was present at the ranch to supervise Purkeypile in the operation of the bulldozer. While present at the ranch Krug sought out the wild-life manager to advise him that it was too muddy to operate the bulldozer, and inadvertently touched a charged wire on the bird pen and received an electric shock. He experienced a weakening feeling and a cooling in his chest. Later on he experienced heart trouble, the details of which need not be related.
He subsequently filed a claim for compensation. The commissioner, after a full hearing, expressed doubt that claimant had proved an employer-workman relationship and that the electric shock suffered by him was in any way related to his present coronary condition. The commissioner specifically found that on June 4, 1957, claimant was told that he was totally disabled but that he did not file his application for a hearing until over three years from that date, and, no compensation having been paid, held that claimant was barred, and denied compensation.
On appeal, the district court found:
“. . . The court finds from the evidence, considering the nature of the business in which each of the parties was engaged and the general arrangements that existed between them, that the claimant was an independent con tractor and not an employee of the respondent. The court also finds that from the evidence presented in this case it cannot find that the electric shock was the cause of the claimant’s coronary condition. The court further finds that the claimant did not file his application for hearing within a reasonable time, such application having been filed more than three years after the date of the alleged accident and no compensation having ever been paid to claimant.”
and denied compensation.
Claimant has appealed.
The rule is elementary that in appeals to this court in compensation cases our function is to review the record in the light most favorable to the prevailing party, and if there is any substantial competent evidence to support the findings below they are conclusive and are not to be disturbed on appeal. Here the trial court found against claimant on each of file three mentioned propositions. If the finding that claimant was an independent contractor and not an employee of respondent is supported by the evidence this case is disposed of and the other two questions become moot.
We see no occasion to enter into a lengthy discussion of what does or does not constitute an “independent contractor.” The term has been defined in many decisions and, generally speaking, it may be said that an independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result of his work. (Evans v. Board of Education of Hays, 178 Kan. 275, syl. 2, 284 P. 2d 1068; Snedden v. Nichols, 181 Kan. 1052, 1055, 317 P. 2d 448, and Bowler v. Elmdale Developing Co., 185 Kan. 785, syl. 2, 347 P. 2d 391.)
In addition to the facts heretofore related, the record shows that claimant contracted the job in question to be performed either by himself or his employees; he supplied the equipment and operators; he was not required to be present on the job; was not told how to build the pond and was not told how to run his machines, when to run them or how many to use; he could and did perform other contract jobs while worldng on this contract; compensation for the job included the heavy machines as well as the operator, and that he was not subject to control of respondent except as to the result of the work being done.
All of these matters are consistent with tire fact that he occupied the position of an independent contractor rather than an employee, and support the trial court’s finding in that regard. Such being the case, the other two findings are moot and require no discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This action was commenced on May 26, 1958, by M. L. Shepard and Ethel L. Shepard, his wife, to quiet title to certain real estate in Rooks County, Kansas, described as the Southeast Quarter (SE M) of Section 14; East half (EM) of Section 23, and the Southwest Quarter (SW M) of Section 24, all in Township Ten (10) South, Range Eighteen (18) West. After the death of M. L. Shepard, the action was revived in the name of Ethel L. Shepard, executrix of the estate of M. L. Shepard, deceased, and Ethel L. Shepard, as plaintiffs. The case was submitted to the district court upon the pleadings, and a written statement of facts which was agreed to. The court’s judgment was in part in favor of the plaintiffs and in part in favor of the defendant, as hereafter set forth, and the defendant has appealed.
The pertinent facts are summarized: On March 13, 1940, the defendant, John Hancock Mutual Life Insurance Company, a corporation, owned the real estate involved and on that date it entered into a written contract with M. L. Shepard for the sale of the property. The contract recited, among other things, that the sale was subject to three outstanding oil and gas leases covering all the land dated July 1, 1936, in favor of one A. M. Jennings, each for a primary term of ten years from July 1, 1936, with payment to the lessor of Mth royalty of oil and gas produced, and an exception and reservation in favor of the defendant, the exact provisions of which were contained in the deed conveying the property to the plaintiffs.
On July 21, 1942, and pursuant to the contract of sale, the defendant executed and delivered its special warranty deed to plaintiffs conveying the real estate in fee simple subject to the Jennings leases, and also subject to an exception and reservation, hereafter referred to as reservation, in the granting clause, which reads:
“. . . excepting and reserving with right of ingress and egress, an undivided % of the landowners % royalty, or, %2 of the interest in and to all oil, gas or other minerals (of every character and kind) in or under the said land for a period of fifteen (15) years from April 1, 1940 and as long thereafter as oil, gas or any other mineral, is produced from said land, or operations for any such mineral are being conducted thereon by grantees or grantor (their Successors or assigns). The said royalty reservation shall not be participating in bonuses or rentals, but shall be participating in other rights, royalties and other benefits accruing under any existing or future oil, gas or mineral lease while the said royalty reservation is in full force and effect.”
The deed was acknowledged by the defendant and recorded in Rooks County on April 28, 1943.
On March 29,1943, plaintiffs executed and delivered to defendant their mortgage in the principal sum of $4,700 covering the real estate conveyed by the special warranty deed, which was recorded in Rooks County on April 28, 1943, the same date the special warranty deed was recorded. The mortgage contained the following recital:
“Subject to the undivided one-fourth nonparticipating mineral interest heretofore reserved to the John Hancock Mutual Life Insurance Company in the deed from the John Hancock Mutual Life Insurance Company to M. L. Shepard and Ethel M. (sic) Shepard dated July 21st, 1942, for a term of 15 years from April 1, 1940, and so long thereafter as any minerals, including oil and gas are produced.”
Plaintiffs later executed four other mortgages which did not refer to any reservation, but those mortgages were executed to mortgagees other than the defendant.
The Jennings leases expired or were dropped without oil or gas being produced, and were released of record on a date not disclosed by the record.
The real estate involved is 640 contiguous acres lying in an “L” shape, being a mile and a half north and south and a mile east and west. On April 29, 1949, plaintiffs leased the northern most quarter section of the long part of the “L” the Southeast Quarter of Section 14, to Ajax Oil Company, Inc. for oil and gas development, which lease was duly recorded in Rooks County. The instrument was a standard form commercial lease designated as Form 88 (Producers ) B 1-43, and provided for the payment of the usual Isth royalty in the event of production. The léase was for a primary term of two years and as long thereafter as oil and gas, or either of them, were produced from the land.
In the early part of 1951 oil was produced under the Ajax lease from a ten-acre location in the extreme northeast corner of the Southeast Quarter of Section 14, and production of oil has been continuous to the present date. No additional production has been obtained under that lease. All oil produced has been delivered to a pipe line and sold to the National Cooperative Refinery Association pursuant to division orders executed by the plaintiffs and defendant on November 5, 1951. The division orders provided that the interest of defendant under the reservation was Mth of Mi royalty interest and the interest of each of the plaintiffs was Mis of Mi royalty interest. Payments for oil purchased have been made and accepted by plaintiffs and defendant on the basis of those fractional interests.
At the expiration of the primary term of the reservation — April 1, 1955 — the other three quarter sections here involved — the East Half of Section 23 and the Southwest Quarter of Section 24 — were not leased for oil, gas or other minerals and remained unleased until September 9, 1957. On that date the plaintiffs executed separate oil and gas leases on each of the three quarter sections to the Davis Brothers. No oil or gas has been produced under the Davis Brothers’ leases. Subsequently, and on March 25, 1958, the plaintiffs and the defendant executed an agreement in writing ratifying oil and gas leases covering all of the land involved, which recognized the defendant as owning an interest in the Mi royalty in all of the real estate. The instrument was duly recorded in Rooks County on May 21, 1958.
In a memorandum opinion the district court found that the reservation in question created a royalty interest of fith of the landowners’ Mi royalty, which was valid and in force and effect as to the Southeast Quarter of Section 14 since production was obtained under the Ajax lease during the primary term of such interest. Accordingly, judgment was rendered that the defendant was the owner of a royalty interest consisting of Mnd of the total amount of oil produced from that quarter section so long as oil is continuously produced therefrom. With respect to the other three quarter sections, it found that since the reservation was one of a royalty interest only, such interest vested under the Jennings leases when the conveyance was made on July 21, 1942, and when those leases expired or were dropped there was no vesting; that since the three quarters were not leased for oil and gas on April 1, 1955, the end of the fifteen-year period, and remained unleased for some eighteen months thereafter, the reservation violated the rule against perpetuities as being too remote as to vesting and was therefore void. In other words, the district court concluded that, insofar as the rule against perpetuities is concerned, a term royalty interest stems from and finds its life in an oil and gas lease which must be in existence when the interest is created, or one executed during the primary term of such interest, and has no valid existence otherwise. Conclusions hereafter announced make it unnecessary that we pass upon that question. In harmony with its findings, the district court rendered judgment quieting plaintiffs’ title to the East Half of Section 23 and the Southwest Quarter of Section 24 and to the production of oil, gas or other minerals therefrom as against the defendant and all persons claiming through or under it.
The first and paramount question is: What was the nature of the interest reserved? The answer turns largely upon the construction to be given the reservation. The fundamental rule in construing the effect of written instruments is that the intent and purpose of the parties be determined from an examination of the entire instrument, or as is sometimes stated, from its four corners, that is, all the language used anywhere in the instrument should be taken into consideration and construed in harmony with other provisions. (Dyson v. Bux, 84 Kan. 596, 114 Pac. 1092; Skelly Oil Co. v. Cities Service Oil Co., 160 Kan. 226, 160 P. 2d 246; Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606; Kennedy v. Monroe, 165 Kan. 168, 193 P. 2d 220; Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039; Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 331 P. 2d 577.)
The defendant contends the deed reserved an undivided Mth interest in the minerals in place and constituted an estate in real property which was vested in it when the deed was delivered, and that production of oil on the Southeast Quarter of Section 14 perpetuated and extended the mineral interest in all the property for as long as production continued therefrom, notwithstanding production was not obtained elsewhere on the acreage, and relies upon Baker v. Hugoton Production Co., 182 Kan. 210, 320 P. 2d 772.
Plaintiffs contended in the district court and strenuously argue here that the reservation created a true royalty interest of Ith of the landowners’ Isth royalty, or Y&2nd of the total production of oil, and that such interest must be construed as vesting in oil and gas leases in existence or coming into existence during the primary term of the reservation, otherwise it is void as being too remote as to vesting. They advance various arguments with respect to the intention of the parties and urge that rules of construction of written instruments favorable to them should be applied. They assert that to construe the reservation as reserving an interest in minerals in place would lead to illogical results. They point out that every mineral interest when covered with an oil and gas lease is reduced eight times, since %ths of the production is given the lessee to produce the oil and gas; that if the mineral interest reserved or conveyed is Mth, the owner is entitled to Vs2nd of production when severed at the wellhead, or if the interest is % of the minerals in place, he would receive %eth of the oil and gas, but that where the owner reserves Vs2nd of the mineral interest, as here, he would not be entitled to Kth of /sth of the oil produced, but only Ifsnd of Isth, or ffeoth of tire total production, hence, they conclude such a result would not only be inconsistent with the defendant’s contention, but is one clearly not intended by the scrivener who went to great length to show that all the defendant desired was to share only in the production of oil and gas.
The necessity of applying rules of construction depends upon whether the terms of the reservation are clear and unambiguous, and if no ambiguity is apparent there is no need for the application of any rule to aid in their interpretation. Where the terms of a written instrument are involved, the supreme court has the same duty as did the district court to examine the instrument and determine whether it is free from ambiguity. (Morgan v. Wheeler, 150 Kan. 667, 95 P. 2d 320; Brungardt v. Smith, supra, and cases cited; Gardner v. Spurlock, 184 Kan. 765, 769, 339 P. 2d 65.)
It is assumed that the distinction between a royalty interest and a mineral interest has now been made clear by the many decisions of this court. It is unnecessary to restate a full definition of the terms, and the reader is directed to Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52; Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463; Lathrop v. Eyestone, 170 Kan. 419, 227 P. 2d 136; Hickey v. Dirks, 156 Kan. 326, 330, 133 P. 2d 107; Rathbun v. Williams, 154 Kan. 601, 604, 121 P. 2d 243, and Magnusson v. Colorado Oil & Gas Corp., supra, p. 571. For purposes here concerned, it may be said that the term “royalty” has reference to a right to share in production of oil and gas at severance; it is personal property, and does not include a perpetual interest in the oil, gas and other minerals in and under the land. The term “mineral interest” means an interest in and to oil and gas in and under the land and constitutes present ownership of an interest in real property.
Apparently that distinction was not clear when the instant reservation was prepared, or for that matter, when many other mineral conveyances and royalty assignments were drawn. The failure of persons engaged in the petroleum industry or those dealing in oil and gas holdings to recognize the distinction has prompted this court to find the true nature of the instrument in the contents and not in the name given it. In Lathrop v. Eyestone, supra, it was said:
“As we have frequently stated the term ‘royalty’ is often rather loosely and inaccurately used by men in the petroleum industry, those dealing in oil and gas holdings and at times by attorneys. Some persons refer to oil and gas in place as royalty. Others refer to royalty as the landowner’s share in production. We have, therefore, repeatedly held the true nature and character of the instrument is not to be determined by the name or label attached thereto but by its intent as reflected by the terms, the contents thereof.” (1. c. 423.)
See, also, Serena v. Rubin, 146 Kan. 603, 72 P. 2d 995, and Froelich v. United Royalty Co., 178 Kan. 503, 290 P. 2d 93, opinion denying rehearing 179 Kan. 652, 297 P. 2d 1106.
For purposes of analyzing the reservation, we divide it into its two parts — its two sentences. The first part contains two related clauses while the second part has only one, and the terms “royalty” and “royalty reservation,” respectively, are used in each. The use of those terms, together with the fractional discrepancy in describing the interest reserved, appear consistent with and lend support to plaintiff’s claim that the instrument created a royalty interest, that is, Mth of /sth royalty is the same as Vs‘¿nd of the production. But the consistency is only apparent. It vanishes in the face of the fact that the reservation does not make reference to a %md share of production as urged by the plaintiffs. The first clause of the first part of the reservation recites that the defendant excepts and reserves “an undivided M of the landowners % royalty.” Standing alone, that would appear to reserve a true royalty interest, but the clause is prefaced by the words “with right of ingress and egress.” That language is significant. (Gas Co. v. Oil Co., 83 Kan. 136, 141, 109 Pac. 1002.) It gave the defendant the right to use the surface of plaintiffs’ land so far as might be necessary for it to avail itself of the use and benefit of the interest reserved. An assignment or reservation of a royalty interest does not carry the right to explore for and remove the minerals in place, and the right of ingress and egress would not be necessary if all that was reserved was merely a right to share in production from the land as distinguished from the right to develop the same for the production of the minerals reserved.
The second clause of the first part commences with the function word “or” to describe with greater exactness of phrasing and meaning the first clause, and states “Vb2 of the interest in and to all oil, gas or other minerals (of every character and land) in and under the said land for a period of fifteen (15) years from April 1, 1940 and as long thereafter as oil, gas or any other mineral, is produced from said land. . . .” The language, “in and to all oil, gas and other minerals (of every character and kind) in and under the said land” is diametrically opposed to the definition of royalty, and to deny its apparent meaning as an estate in land and interpret it to mean “a share of production” only, as the plaintiffs suggest, would be irregular and clearly unwarranted. The language is very similar to deeds of conveyance previously reviewed by this court and held to convey present title to minerals in place (Magnusson v. Colorado Oil & Gas Corp., supra, p. 574), and it is persuasive evidence that minerals in place were reserved. Likewise, the remaining portion of the second clause, “or operations for any such mineral are being conducted thereon by grantees or grantor (their Successors or assigns),” tends to confirm that conclusion. Unless that language is meaningless, it constitutes further evidence that the defendant reserved minerals in place with the right of either party or their successors or assigns, upon the expiration of the Jennings leases, to conduct operations for the production of the minerals, jointly or individually, and if conducted by the defendant individually, the “right of ingress and egress” reserved in the first clause afforded it a means to enter upon the property for that purpose. As previously noted, a royalty interest does not carry the right to explore for and remove the minerals in place, and the right to conduct operations upon the land would be a useless right if all that was reserved was only royalty or a share of the proceeds of the production from the land.
The second part of the reservation may be construed in complete harmony with the first part. That part makes it clear the defendant was not to participate in bonuses or delayed rentals accruing under any lease while the “royalty reservation” was in full force and effect but “shall participate in other rights,” royalties and other benefits accruing under any lease for the same period. The fact that the reservation expressly stipulated the defendant was not to participate in such payments lends support to the defendant’s contention that minerals in place were intended to be reserved.
It is well settled that the owner of minerals in place has an equal right to lease the property for the exploration of oil and gas and their development as does the owner of the surface who is also the owner of minerals in place, and to share proportionately in bonuses and delayed rentals which may be provided for in the lease. (Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 91, 69 P. 2d 4, 303 U. S. 623, 58 S. Ct. 742, 82 L. Ed. 1086; Brooks v. Mull, 147 Kan. 740, 744, 745, 78 P. 2d 879, Davis v. Hurst, 150 Kan. 130, 132, 90 P. 2d 1100, 122 A. L. R. 957; Hickey v. Dirks, supra.) The converse is true of the owner of a royalty interest. Such an interest does not carry the right to lease the property for oil and gas development or to join in the execution of such leases (Skelly Oil Co. v. Cities Service Oil Co., supra), or to participate in bonuses or delayed rentals (Hickey v. Dirks, supra; Bellport v. Harrison, supra). Hence, had the parties intended the defendant reserve only a royalty interest there would have been no necessity to make the reservation nonparticipating as to bonuses and delayed rentals since the plaintiffs would have been entitled to them as owners of the surface and of all the minerals in place in fee. On the other hand, had the parties intended the defendant reserve a fractional interest in minerals in place, the defendant’s right to participate in such payments would naturally follow and to entitle the plaintiffs to receive them, it would have been necessary to expressly exclude them from the reservation. Likewise, the language that the defendant “shall participate in other rights” accruing under any lease is further evidence that minerals in place were reserved.
It is commonly understood in the petroleum industry and among the lawyers of the state that the word “participate” as used in a mineral conveyance or reservation usually contemplates, at least three things. A grant of minerals in place entitles the owner to participate in bonuses, delayed rentals, and leasing rights, or any combination of those three rights. While the defendant waived two of the three rights in favor of the plaintiffs, it expressly reserved the right to “participate in other rights.” We are of the opinion that within the “other rights” reserved was the right to execute oil and gas leases, and had the plaintiffs executed such leases not signed by the defendant after the deed was recorded, they would have been, as stated by Chief Justice Dawson in Brooks v. Mull, supra, p. 744, “not worth a picayune” until the defendant ratified them.
The clarity of the intent of the parties that the defendant reserved an interest in minerals in place is enhanced by the recital in the mortgage executed by the plaintiffs on March 29, 1943. It is well settled that where two or more instruments are executed by the same parties contemporaneously or at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed together so far as determining the respective interests of the parties, although they do not in terms refer to each other. (MacLorinan v. Finley, 124 Kan. 637, 640, 261 Pac. 587; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594; Steele v. Nelson, 139 Kan. 559, 32 P. 2d 253; Setchell v. Reed, 153 Kan. 818, 820, 113 P. 2d 1050; 17 C. J. S. Contracts, § 298, p. 714.) While the special warranty deed was executed and delivered to plaintiffs on July 1, 1942, it was not recorded until April 28, 1943, the date the mortgage was recorded, and under the foregoing rule, the recital in the mortgage which defined the interest reserved by the defendant as an “undivided one-fourth nonparticipating mineral interest,” may be considered for its evidentiary value in determining the intention of the parties.
The fractional discrepancy does not assume the proportions nor have the effect the plaintiffs urge. It is not uncommon for parties to mineral deeds or reservations, where a royalty or mineral interest is conveyed or reserved subject to an existing oil and gas lease, to confuse the fractional interest conveyed or reserved. Such confusion occurred in the instant deed. The reservation states “an undivided % of the landowners H royalty, or, V32 of the interest in and to oil, gas or other minerals ... in and under the said land.” This court has previously considered fractional discrepancies created by such confusion. (Lathrop v. Eyestone, supra; Froelich v. United Royalty Co., supra; Magnusson v. Colorado Oil & Gas Corp., supra.) In the Magnusson case it was pointed out that it was not only persons in the petroleum industry who make this type of inadvertent mistake, but on occasion the mistake has been made by courts, and it was said:
“As the most common leasing arrangement provides for a one-eighth royalty reserved to the lessor, the confusion of fractional interests stems primarily from the mistaken premise that all the lessor-landowner owns is a one-eighth royalty. In conveying minerals subject to an existing lease and also assigning a corresponding fractional interest in the royalties received, mistake is often made in the fraction of the minerals conveyed by multiplying the intended fraction by one-eighth. Thus, if a conveyance of an undivided one-half of the minerals is intended, the parties will multiply one-half by one-eighth and the instrument will erroneously specify a conveyance of one-sixteenth of the minerals upon the assumption that one-sixteenth is one-half of what the grantor owns. An ambiguity is created because the instrument will also show that the conveyance of one-sixteenth of the minerals is meant to entitle the grantor to one-half of the royalty. Of course, an undivided one-half of the minerals is needed to carry one-half of any royalties reserved.” (1. c. 576.)
And so here. In computing the fractional interest reserved the parties were aware of the existence of the Jennings leases providing for Mth royalty to the landowner, and it is obvious the scrivener multiplied ffth by /sth and the instrument erroneously specified a reservation of Vsznd as the interest reserved, apparently upon the assumption that %2nd interest in and to all oil, gas or other minerals, would constitute ownership of Jfth of the landowners’ lath royalty, when the intention of the reservation as disclosed by its other terms indicate that the fraction Mth should have been used instead of the fraction %2nd. When this is done, the intent of the grantor is clear and no ambiguity exists. Hence, contrary to plaintiffs’ contention, no occasion exists for the application of any rule of construction to aid in the interpretation of the reservation.
The terms of the reservation disclose a consistent intent that the instrument reserve an undivided 3£th interest in and to the minerals in and under the land. While the words “royalty” and “royalty reservation” were used in the instrument, there is no reason to ignore the clear meaning of some sixty other words out of deference to those two, and when construed with all the other language of the reservation it is apparent they were not used in their ordinary and accepted meaning, but were loosely and inaccurately used as intending to mean an interest in real property. If doubt may be entertained as to the intent of the parties, it is dispelled by the recital in the mortgage defining the interest reserved as an “undivided one-fourth nonparticipating mineral interest” in all the land conveyed, and compels the conclusion that the defendant reserved an estate in real property which was vested in it upon delivery of the deed. To hold otherwise would result in the destruction rather than the construction of the property interest intended to be reserved.
The district court erred in not finding that the defendant reserved an undivided Mth nonparticipating interest in the minerals in place for a period of fifteen years from April 1, 1940, and as long thereafter as oil, gas or other minerals are produced from “said land.” The only production from the entire acreage was obtained under the Ajax lease on the Southeast Quarter of Section 14, which has continued to the present time. In Baker v. Hugobon Production Co., supra, it was said:
"The instrument grants a base or determinable fee in the oil, gas and other minerals in place in the 3,630 acres described therein. The grant is for a term of twenty years and as long thereafter as oil, gas, or either of them, are being produced from said land. The words ‘said land’ refer to the 3,630 acres described in the granting clause. Production on any part of that acreage was production from said land, the legal effect of which was that the mineral interest was perpetuated and extended as to the entire acreage. (Cowman v. Phillips Petroleum Co., 142 Kan. 762, 51 P. 2d 988, and Wilson v. Holm, supra, at page 237.)” (1. c. 212.)
Since the interest reserved was an interest in minerals in place in all the land conveyed, we are of the opinion that production from the Southeast Quarter of Section 14 perpetuated and extended the interest in minerals in place to the entire acreage.
The judgment is reversed with directions to enter judgment in favor of the defendant that it is the owner of an undivided Mth nonparticipating interest in the minerals in place in all the land conveyed in the special warranty deed for a period of fifteen years from April 1,1940, and as long thereafter as oil, gas or any other minerals are produced from “said land.”
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Davis, J.:
Chester D. Crawshaw left the bulk of his estate in trust to Marymount College in Salina, Kansas, for school loans to nursing students under conditions set forth in his testamentary trust. Soon after his death, Marymount College terminated its existence. The trial court, applying the cy pres doctrine under K.S.A. 1989 Supp. 59-22a01, named a successor trustee to administer the funds for the same educational purposes. The remaining residuary legatee, the Salvation Army, appeals, contending that the trial court erred by applying cy pres because the language in the decedent’s testamentary trust evidenced a specific charitable intent to benefit students at Marymount College, not a general charitable intent. We affirm.
The case was submitted to the trial court on the following stipulated facts:
Stipulated Facts
“1. Chester D. Crawshaw, a resident of Osborne, Kansas, died testate on May 4, 1989. On May 12, 1989 his Last Will and Testament (attached as Exhibit ’A’) was admitted to probate in Osborne County District Court, Probate Division. (Petition to Probate Will). Paul S. Gregory was appointed as administrator with Will annexed. (Letters Testamentary).
“2. The Last Will and Testament of Chester D. Crawshaw provides for the distribution of the personal effects of the deceased, and further provides for certain legacies to four individuals, said legacies totaling $350.00. (Last Will and Testament). The residuary estate is valued in excess of $140,000.00. (Inventory and Appraisement).
“3. Upon distribution of these bequests and legacies, the Will directs that the personal property and real property remainder of the estate be sold and converted to cash and that the proceeds be distributed as follows:
“A. I direct that said Executor first pay all of my just debts, including my funeral expenses and expenses of my last sickness, and the costs of administering my estate, and all legacies provided for by this, my Last Will and Testament.
“B. I give, devise and bequeath fifteen percent (15%) of the rest, residue and remainder of the funds, proceeds and property of my estate to the Salvation Army, with Kansas office at Wichita, Kansas, to be used by it as it shall deem fit, without any restrictions whatever.
“C. I give, devise and bequeath the remaining eighty-five percent (85%) of the rest, residue and remainder of the funds, proceeds and property of my estate to Marymount College, located at Salina, Kansas, in trust, or in the event that said college does not have the legal capacity to accept and administer the herein created trust, then in trust, to the ■official Board or Association of said college having the legal capacity to accept and administer the herein created trust, in any event hereinafter referred to as Trustee, and that said trust is created for the purposes, and subject to the conditions, hereinafter stated:
“1. That such trust fund, with its accretions, shall perpetually be called and known as the ‘Mary Anna and Chester D. Crawshaw Trust Fund’.
“2. That said trust fund shall be paid to said legatee and devisee by my Executor at the time of the final settlement of my estate.
“3. The funds herein provided for may be loaned to students in the nursing department of said college. If there are no eligible candidates in said nursing department for this fund in any academic year, then the administrators may grant a loan to any other student or students attending said college.
“4. The administration of the fund shall be left entirely to the Trustee.
“5. Any and all loans made from said fund shall be evidenced by a note for the amount, and stating the terms of such loan, and signed by the person receiving such loan. Any such note shall not bear interest during the time such loan recipient is in regular attendance at said college, and is satisfactorily carrying a normal school load. The note of any loan recipient shall draw interest as shall be fixed by the Trustee, and shall bear interest from date of graduation of such loan recipient, or from the time any loan recipient shall fail to attend, or shall withdraw from, said college, or from the time any loan recipient shall fail to make grades acceptable, or required, for graduation. The principal of each note, with interest, shall be due and payable in four equal annual installments, following the graduation of said loan recipient from college, or from the date of his or her withdrawal from college, or from the end of the semester in which he or she fails to make satisfactory passing grades. For good cause shown, the Trustee may extend the time of payment of any note. When interest is received on any note, it shall be added to, and become a part of, the principal of said trust fund, and shall be used in the same manner as the original amount. Additions to the trust fund may be made from time to time by any person, persons, firms or corporations desiring to do so.
(Last Will and Testament of Chester D. Crawshaw)
“4. Chester D. Crawshaw was not Catholic but his deceased wife was Catholic and they were married in the Catholic Church. Chester D. Craws- haw received a Methodist burial service. Chester D. Crawshaw was not a Marymount College alumni, director, employee, former employee, teacher, or former teacher, nor is it known that he had any other type of special personal relationship with Marymount College.
“5. Effective June 30, 1989 Marymount College of Kansas terminated its nursing department and all other departments, programs and curricula offered at its campus in Salina, Kansas. (Petition of Marymount College, Par. 5)'„
“6. Marymount College Kansas is now at times pertinent and has been a not-for-profit Kansas corporation. Although its Articles of Incorporation were forfeited on March 15, 1989 for failure to timely file its annual report, its Articles of Incorporation were renewed and revived in accordance with K.S.A. 17-7002 and K.S.A. 17-6003 with the same force and effect as if said Articles of Incorporation had not been forfeited. Attached hereto as Exhibit ‘B’ is a Certificate of Good Standing issued by the Secretary of State of Kansas.
“7. The termination of the nursing department and other departments and academic programs at Marymount College of Kansas make the Decedent’s bequest to Marymount College impossible and impracticable of fulfillment, and the Decedent makes no provision for any alternative plan of disposition in the event Marymount College of Kansas should cease operations as an institution of higher learning. (Petition of Marymount College, Par. 5).
“8. The Marymount Memorial Educational Trust Fund (hereinafter referred to as ‘MMETF’). was established on September 13, 1989 by and between Marymount College of Kánsas and George K. Fitzsimons, Bishop of the Roman Catholic Diocese of Salina in Kansas. (Petition of Marymount College, Par. 7; and MMETF Trust Agreement (Exhibit ‘C’)).
“9. On September 19, 1989 Marymount College petitioned the Saline County District Court and obtained an Order that the MMETF Trust Agreement was a proper and suitable trust arrangement to carry out the general charitable intention of those settlors and testators of certain endowment and scholarship funds specifically identified by name in the Exhibit ‘A’ to Marymount College’s petition therein, as well as the general charitable intention of the settlors and testators of any other separate endowment or scholarship fund which may be held by Marymount College for which no alternative plan of disposition was provided. (Petition of Marymount College, Par. 7; Marymount College Petition filed in Saline County District Court (Exhibit ‘D’); Order of Saline County District Court (Exhibit ‘E’)).
“10. The Mary Anna and Chester D. Crawshaw Trust Fund had not yet been funded when the Marymount Educational Trust Fund agreement was signed. Therefore, the Mary [Anna] and Chester D. Crawshaw Trust Fund was not one of those trust funds named in the Exhibit ‘A’ list attached by Marymount College to its petition to the Saline County District Court and incorporated by reference in the Order thereto. (Petition of Marymount College, Par. 7; Marymount College Petition filed in Saline County District Court (Exhibit ‘D’); Order of Saline County District Court (Exhibit ‘E’)).
“11. FHSU Endowment Association is a not-for-profit corporation and the objects and purposes to be transacted and carried on by said- Endowment Association are as follows:
To raise funds for the purposes for which this corporation is created; to support educational undertakings at Fort Hays State University and to receive and hold in trust any property, real and personal, given, devised, bequeathed, given in trust, or in any other way transferred to this corporation for the use and/or benefit of Fort Hays State University, or of any student or employee therein as such, or of any school, division, department or branch thereof or for the carrying on at said institution of any line or work, teaching or investigation which the donor, grantor or testator may designate (Petition of FHSU Endowment Association, Par. 8).
“12. Fort Hays State University has an established School of Nursing that offers both a bachelors and a masters degree in nursing. (Petition of FHSU Endowment Association, Par. 9).”
Based upon the stipulated facts and evidence upon hearing, the trial court concluded:
“[W]hen Chester D. Crawshaw made the bequest, ... he had a general charitable intent to benefit nursing students and other students, and the named trustee, Marymount College,, was only an agent for effectuating this general charitable purpose. Since the testator had general charitable intent with respect to this bequest, the court finds that the doctrine of cy-pres as codified by the Kansas Legislature in K.S.A. 59-22a01, is applicable. Accordingly, the court orders an administration of this trust which will nearly as possible fulfill the testator’s manifested general charitable intent. After considering alternative proposals from Marymount Memorial Educational Trust Fund, Fort Hays State University Endowment Association and the Salvation Army, the court determines that the administration of this bequest which would nearly as possible fulfill the manifested general charitable intent of the testator is to have the trust administered as part of the Marymount Memorial Educational Trust Fund.”
Our scope of review is de novo because the facts were submitted by stipulation and because the construction of a written instrument is a question of law. Lightner v. Continental Life Ins. Co., 242 Kan. 29, 31, 744 P.2d 840 (1987); Farmers Ins. Co., Inc. v. Gilbert, 14 Kan. App. 2d 395, 396, 791 P.2d 742 (1990).
The testamentary trust in question provided for no alternate disposition. “In Kansas the rule of common law, that a lapsed or void devise goes to the heirs of the testator, has been abrogated and a void devise falls into the residuum and will be disposed of by the residuary clause if one has been provided.” Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass’n v. Kring, 225 Kan. 499, 506, 592 P.2d 438 (1979). In this case, there is a residuary clause with two provisions: The first was a bequest to the Salvation Army; the second was the creation of the trust that is the subject of this action. If the trust fails, all proceeds would be distributed to the remaining residuary legatee, the Salvation Army. See 225 Kan. at 506.
The Salvation Army argues that the trial court erred in construing Crawshaw’s will and in determining that there was a general charitable intent rather than a specific charitable intent. The testamentary trust provides that the funds “may be loaned to students in the nursing department of said college” and if there are no eligible nursing students, then to any other student or students attending said college. Based on this language, the Salvation Army contends that the trust “clearly and unambiguously demonstrates specific intent to benefit nursing and other students at Marymount College.”
In support of its argument, the Salvation Army relies upon three cases, none of which deal with the interpretation or construction of a charitable testamentary trust: In re Trust Estate of Rivas, 233 Kan. 898, 666 P.2d 691 (1983); In re Estate of Wernet, 226 Kan. 97, 596 P.2d 137 (1979); and In re Estate of Groves, 203 Kan. 762, 457 P.2d 71 (1969). In focusing upon the specific language decedent used in drafting his testamentary charitable trust, the Salvation Army fails to give consideration to the will as a whole. Crawshaw’s estate totaled about $140,350. His will included four specific bequests totaling $350, while the $140,000 residuary was left entirely to charity. The residuary estate was divided between two organizations — 15% to the Salvation Army outright and 85% to Marymount College in trust. Under these circumstances, we would be remiss if we did not consider those Kansas cases dealing with the interpretation and construction of charitable bequests.
In the case of In re Estate of Roberts, 190 Kan. 248, 373 P.2d 165 (1962), the court said:
“Charitable trusts are favorites of the law; they must be upheld whenever possible and, once it has been determined that the provisions of a will create a charitable trust, those provisions and others to be found in the instrument must be liberally construed for the purpose of carrying out the intention of the donor. Technical rules of construction, which have often prevented conveyances or bequests from taking effect, are disregarded. [Citations omitted.]” 190 Kan. at 255.
Again, in the case of In re Estate of Freshour, 185 Kan. 434, 441, 345 P.2d 689 (1959), the Supreme Court said:
“When once a devise or grant is determined to constitute a charitable trust, courts look with liberality on the instrument creating it for the purpose of carrying out the intention of the donor. Technical rules of construction, which have often prevented conveyances or bequests from taking effect, are disregarded. [Citations omitted.] Moreover, when it is ascertained that the donor intended to create a public charity it will not be allowed to fail because the trustee is . . . incapable of taking.”
As early as 1907, Kansas recognized that bequests for educational purposes are in the nature of a public charity and should be regarded with special favor in the law.
“Bequests for educational purposes have been regarded by the courts of this country with special favor, and donations made for the founding and maintenance of institutions of learning or for increasing educational facilities have very generally been upheld as public charities. . . .
“The advantages, direct and indirect, which the highly educated citizen imparts to the general public cannot be estimated. Every advancement made in the scientific, mechanical, moral, literary, or other pursuits of life adds to the general sum of human knowledge, comfort and happiness. As higher education increases civilization advances. The elevating and beneficient influences which the general public receives from educational sources make every citizen a beneficiary thereof, and furnish complete justification for placing every educational trust, not strictly private, and having increased learning for its object, in the category of public charities.” Washburn College v. O’Hara, 75 Kan. 700, 703-05, 90 Pac. 234 (1907).
We conclude that the Crawshaw testamentary trust is a public charity. The decedent’s will should be construed in accord with the authority cited by the Salvation Army as well as those rules of construction governing charitable testamentary trusts:
“[I]t must be kept in mind that in construing a will, courts are required to (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) construe it to avoid intestacy when possible, (d) give all importance to the intention of the testator and (e) determine the intention of the testator when clearly and unequivocally expressed, without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms. [Citations omitted.] Likeioise, remembered (a) that charitable trusts are favorites of the law which must be upheld whenever possible, and (b) that once it has been determined a will contains language creating such a trust other language to be found therein which is susceptible of more than one construction must be liberally construed for the purpose of carrying out the intention of the donor. [Citations omitted.]” (Emphasis added.) In re Estate of Porter, 164 Kan. 92, 100, 187 P.2d 520 (1947).
As early as 1945, the Kansas Supreme Court recognized the need to treat charitable gifts in a different manner than non-charitable bequests or devises. While the intent of the testator remains of paramount concern, the determination of that intent oftentimes involves the consideration of evidence beyond the four corners of the document itself. Shannep v. Strong, 160 Kan. 206, 160 P.2d 683 (1945). In Shannep, the court was called upon to interpret provisions in the decedent’s testamentary trust in favor of a named individual for the benefit of a local church in the testator’s community. At the time of the probate of the will of the decedent, the church had disbanded. “In other words, the express trust lapsed. The question now is what disposition shall be made of the trust? What light does the will itself and the stipulated facts throw upon that inquiry?” (Emphasis added.) 160 Kan. at 211-12. Recognizing that the testator clearly intended to create a charitable trust, the question became “[w]hether he intended to create a trust for the benefit of a particular church in a particular community.” 160 Kan. at 212.
Shannep deals with the same question we are called upon to resolve. “We frankly concede there is an apparent lack of harmony in the decisions on the question of what constitutes an intent to create a general charity or a particular charity. The tests for determining that question are not very clearly defined. The result is the question has been determined upon the basis of each particular instrument or on the basis of the instrument itself and surrounding circumstances.” (Emphasis added.) 160 Kan. at 214.
The Supreme Court, after careful examination of all the facts, including those facts bearing upon the decedent’s relationship with the community and the fact that he had been a resident in that community for over a period of 50 years, concluded: “[W]e think his dominant purpose and intent was to aid the two par ticular local churches in his old hometown rather than to create a general charity for religious purposes. It was quite natural, and certainly appropriate, for an old farmer who had struggled and lived successfully in a small community for over a half a century to contribute to the welfare of his home community and old friends by aiding those two local character-building institutions which, if like most churches, are always in need of funds. In the absence of evidence disclosing any other intent we think we would be doing violence to the testator’s real purpose by construing his will as intending to create a general charity for the advancement of religion.” 160 Kan. at 214.
Certainly, it would be appropriate in attempting to ascertain the intent of the testator in this case to look beyond the four corners of the instrument and consider what relationship the decedent Crawshaw may have had with Marymount College. Shannep suggests that it is not inappropriate to consider the surrounding circumstances of the gift when faced with a question of whether the testator possessed a general or specific charitable intent. “It also is elementary that such intention must be ascertained not from any single or isolated provision, but from all provisions contained within the four corners of the instrument and from circumstances surrounding its execution if they are needed to clarify the testator's true purpose and intent.” (Emphasis supplied.) Shannep, 160 Kan. at 211.
We faced a similar situation in the case of In re Estate of Coleman, 2 Kan. App. 2d 567, 584 P.2d 1255, rev. denied 225 Kan. 844 (1978). In that case, Coleman made a number of specific bequests in his will and left the entire residuary of his estate to three charities. A problem administering the estate arose because one of the residuary beneficiaries, the College of Emporia, had closed two years before Coleman died. 2 Kan. App. 2d at 568-69. We reviewed the following facts and concluded they would support a finding of general charitable intent:
“1. The will contains no gift-over or reversionary provisons, which has been considered a factor evincing a general charitable intent. [Citation omitted. ]
“2. The gift was made to the College of Emporia by name, and a gift made to a charity by name, without specification, reservation or limitation as to its use is presumed to have been made for the objects and purposes for which the charity was founded. [Citation omitted.]
“3. The bulk of the Coleman estate was bequeathed to charities ....
“4. Dr. Coleman made specific bequests and devises to family and friends, thus indicating that he wanted what had not been set aside to individuals to be used for charitable purposes.
“5. Several will provisions indicate that Dr. Coleman was interested in Presbyterianism and higher education. . . .
“6. Extrinsic evidence shows that Dr. Coleman had no special personal relationship to the College of Emporia, other than the fact that he was probably made aware of its financial need through the fund drive conducted in the early sixties.” 2 Kan. App. 2d at 576-77.
We decided, however, after consideration of the gift language, the will as a whole, and the surrounding circumstances, that there was a specific charitable intent in Coleman because of Coleman’s knowledge of the fund drive:
“Dr. Coleman, being very active in his church’s affairs during that period, was without doubt aware of and concerned about the financial plight of the college. The fact that his will was executed in 1965, shortly after the fund-raising campaign, bolsters the theory that he named the College of Emporia as a residuary legatee with the specific thought of aiding that single, particular Presbyterian college in its time of financial hardship. Also, we note that although there was no evidence of a special personal relationship between Dr. Coleman and the College of Emporia (that is, he was not an alumnus or trustee, for example), there was a special personal relationship between him and the other named beneficiaries.” 2 Kan. App. 2d at 577.
With the exception of the personal relationship, the facts in this case are remarkably similar to those in Coleman:
1. There is no gift-over or reversionary provision in Crawshaw’s will.
2. The gift was made to Marymount College to benefit nursing and other students.
3. The bulk of Crawshaw’s estate was bequeathed to charities.
4. Crawshaw made specific bequests to family members, indicating that he wanted what remained to go to charity.
5. Several of the will provisions indicate a desire that the charitable gift survive if specific provisions of the trust cannot be met. If for some reason Marymount College could not accept and administer the trust, Crawshaw deemed the bequest go in trust to “the official Board or Association of said college having the legal capacity to accept and administer the herein created trust.” Arguably, Marymount Memorial Educational Trust Fund has stepped into Marymount College’s shoes and could administer the trust under the terms of the original bequest since “said college does not have the legal capacity to accept and administer” the trust, and the trust fund is “the official Board or Association of said college, having the legal capacity to accept and administer such trust.” Nevertheless, the clause is indicative of a desire to have the bequest survive. Further, while Crawshaw intended the bequest to benefit nursing students, he acknowledged there might not always be eligible Marymount nursing students and authorized loans to other students.
6. Crawshaw had no special personal relationship with Mary-mount College. He was not an alumnus, director, employee, or teacher at the college. There is also no evidence that Crawshaw had any special relationship with the Salvation Army, the other residuary beneficiary.
In Coleman, we held the additional factor — knowledge of the college’s financial trouble — crucial in finding Dr. Coleman had a specific charitable intent rather than a general charitable intent. That crucial factor is missing in this case. There is nothing in the will or surrounding circumstances to indicate Crawshaw had any knowledge whatsoever of Marymount College’s financial position. We conclude that Crawshaw’s dominant purpose and intent was to aid nursing students and other students and not Mary-mount College. As the trial court concluded, Marymount College was only an agent for effectuating this general charitable purpose.
Having concluded Crawshaw had a general charitable intent, the next question is whether use of cy pres is appropriate. The trial court applied the provisions of K.S.A. 1990 Supp. 59-22a01, which codifies the common-law doctrine of cy pres. Bogert defines the cy pres doctrine as
“the doctrine that equity will, when a charity is originally or later becomes impossible, inexpedient, or impracticable of iulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible. It is the theory that equity has the power to revise a charitable trust where the settlor had a general charitable intent in order to meet unexpected emergencies or changes in conditions which threaten its existence.” Bogert, Trusts & Trustees § 431, p. 95 (2d ed. rev. 1991).
In pertinent part K.S.A. 1990 Supp. 59-22a01 provides:
“(a) If a trust for charity is or becomes . . . impossible or impracticable of fulfillment or if a devise or bequest for charity, at the time it was intended to become effective is . . . impossible or impracticable of fulfillment, and if the settlor or testator, manifested a general intention to devote the property to charity, any judge, on application of any . . . interested party . . . may order an administration of the trust, devise or bequest as nearly as possible to fulfill the manifested general charitable intention of the settlor or testator.”
Under the statute and Kansas case law, the doctrine of cy pres permits a court to implement a testator’s intent and save a testamentary charitable gift by substituting beneficiaries only when these conditions are met: “First, the gift must be to a charitable organization for a charitable purpose. Second, it must be impossible, impractical or illegal to carry out the donor’s stated charitable purpose. Finally, it must appear that the donor had a general charitable intent.” In re Estate of Coleman, 2 Kan. App. 2d at 574. All three requisites are met in this case and the use of cy pres is appropriate.
Affirmed. | [
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Russell, J.:
The Farmers State Bank of Ingalls, Kansas, (Bank) appeals the district court’s order dismissing its claims against defendants Michael Friesen and Pauline Rains. The order in question was based upon the court’s interpretation of K.S.A. 59-1303. For the reasons set out herein, we reverse.
Although not disputed, the facts are somewhat complex. Prior to October 1986, the Bank had loaned money to Gilbert Rains, Pauline Rains, and Michael Friesen at various times in various amounts. Gilbert and Pauline were husband and wife and Michael was Pauline’s son. The Bank and these three individuals had ongoing creditor-debtor relationships.
On October 15, 1986, four promissory notes were signed. Three were signed by Michael, Gilbert, and Pauline as comakers: No. 3001 in the amount of $78,614.36; No. 3003 in the amount of $124,999.04; and No. 3004 in the amount of $89,237.92. The fourth note, No. 3002, in the amount of $39,307.18, was signed by Michael and Pauline but does not appear to have been signed by Gilbert, although his name appears typed on the note as a comaker. The parties have treated the fourth note as having been executed by Gilbert, although the record is not clear as to the reason.
In addition to the four notes executed in October 1986, Michael signed a fifth note on April 28, 1987, in the amount of $10,000. Although he alone signed this note, both in his individual capacity and as president of Blue Mountain Investments, Ltd., Gilbert and Pauline were also obligated because of an unlimited continuing guaranty they had signed in January 1986 that guaranteed all loans made by the Bank to Michael.
As partial security for the four notes executed in October 1986, each of the three borrowers gave second mortgages to the Bank on separate tracts of land; Gilbert on land in McPherson County in his separate name, Pauline on two quarter sections in Finney County in her separate name, and Michael on a partial quarter section in Finney County and three lots in Garden City which he owned either in his separate name or jointly with his wife Lydia. In addition to the real estate mortgages, a security interest in shares of stock of Krause Plow .Corporation, Inc., owned by Pauline individually, was pledged to the Bank.
Gilbert died March 27, 1987, and his estate is in probate in Reno County. As of the date of his death, none of the four notes dated October 1986 had been paid. The Bank filed a claim against Gilbert’s estate for $342,396.05, the total amount of principal and interest owed on the four notes. The demand did not include the fifth note signed by Michael individually. The district court of Reno County entered an order allowing the demand in foil on February 3, 1988. The Bank was ordered to release its mortgage on the McPherson County real estate owned by Gilbert pursuant to K.S.A. 59-1303, which provides:
“When a claimant holds any security for his or her demand, it may be allowed, conditioned upon the claimant surrendering the security or upon the claimant exhausting the security; it shall be allowed for the full amount found to be due if the security has been surrendered, or for any remaining amount found to be due if the security has been exhausted.”
In accordance with the court’s order, the Bank released its security interest in the McPherson County real estate. To date, nothing has been paid on the four notes. The amount due now exceeds $460,000, including interest. Gilbert’s estate is still in probate.
On December 5, 1988, the Bank began foreclosure proceedings against Pauline’s and Michael’s stock and real estate pledged as security for the four notes. The Bank also filed suit to collect on the fifth note signed by Michael. Pauline and Michael filed motions to dismiss, alleging 59-1303 mandated that the security pledged as collateral be released along with the collateral belonging to Gilbert’s estate. The district court granted the motions, dismissing the Bank’s petition in its entirety. The dismissal included the foreclosure proceedings, the Bank’s request for personal judgments against Pauline and Michael on the four notes, and also the request for judgment against Michael on the fifth note.
The question presented in this case is one not previously directly answered by the courts of this state: Does K.S.A. 59-1303 require the release of all security for a debt which has been allowed in a decedent’s estate when part of the security was pledged by comakers, or does it require the release of only that security which forms a part of the decedent’s estate?
The Bank contends 59-1303 requires the surrender and proper release of only that security which forms a part of a decedent’s estate if the Bank elects not to exhaust the security. The Bank argues that a creditor is still free to pursue remedies against comakers of a note executed jointly with a decedent, including foreclosure on security pledged by comakers.
Defendants base their argument upon the phrase “any security” in the statute, arguing that phrase means all security pledged for a loan allowed as a claim against a decedent’s estate, whether owned by the decedent or a comaker. Defendants cite no law, either in Kansas or any other jurisdiction, in support of their position.
We are persuaded that proper interpretation of 59-1303 would limit its scope to require the release of only property within the decedent’s estate. “The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning. [Citation omitted.]” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988).
In K.S.A. 59-1303, the natural and ordinary meaning of “any security for his or her demand” is limited to security interests in property that is part of the decedent’s estate. The “demand” is against the estate and there is no apparent reason why the legislature should have drafted the statute to operate on property outside the estate.
“It is the duty of the court to reconcile different statutory provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.] General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989).
K.S.A. 59-1303 is only one section of Article 13 of Chapter 59. Article 13 is captioned “Classification and Payment of Demands.” K.S.A. 59-1301, which establishes the priority for payments of demands against an estate, provides: “If the applicable assets of an estate are insufficient to pay in full all demands allowed against it, payment shall be made in the following classified order: . . . .” (Emphasis added.) K.S.A. 59-1304, the section immediately following the section in question in this case, provides: “When any assets of the estate are encumbered . . . .” (Emphasis added.)
The entirety of Article 13 deals with debts and assets of a decedent’s estate and how the debts should be satisfied from the assets of the estate. Read in isolation from the rest of the article, the meaning of “any assets” is not crystal clear. However, read in context with the remainder of Article 13, it is plain that the legislature intended to require release of only those assets within a decedent’s estate and did not intend to reach out to property not within a decedent’s estate, conferring a boon on surviving comakers.
This interpretation of 59-1303 is also in harmony with other provisions of Kansas law. K.S.A. 16-104, the familiar rule of joint and several liability codified in Kansas without amendment since 1868, provides: “In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.” Comakers of notes are jointly and severally liable on the loans they have taken. To hold that 59-1303 bars a creditor from proceeding against a joint debtor of a decedent, against whose estate a claim has been allowed (but not satisfied), would have the effect of nullifying the concept of joint and several liability when one comaker of a note dies. We do not believe that the legislature intended this effect when it enacted 59-1303.
Although Kansas appellate courts have never addressed this precise issue, dictum in one existing case supports our interpretation of the statute. In Bolman v. Commercial National Bank, 173 Kan. 155, 244 P.2d 1175 (1952), the court was considering claims filed against a commercial receivership. It drew an analogy to claims against a decedent’s estate:
“They also direct attention to the rule in decedent’s estates set forth in the probate code (G.S. 1949, 59-1303) that when a claimant holds security his claim may be allowed if he surrenders his security, or he may exhaust the security and claim for the balance. They pass over the fact the security must have been a part of the assets of the decedent.” 173 Kan. at 160. (Emphasis added.)
Defendants argue strenuously that, to allow the Bank to proceed against them, even after its claim has been allowed against Gilbert’s estate, will permit the Bank to “double dip.” They argue the Bank could collect twice for the same debt — against Gilbert’s estate and then against defendants. This argument ignores the effect of K.S.A. 60-2413, which establishes the right of one obligor to seek contribution from his joint obligors. In the event the Bank entirely satisfied its claim from the assets of the estate, the estate could seek contribution of pro rata shares from Pauline and Michael. Conversely, if either of them satisfied the debt, he or she could seek pro rata contribution from the estate.
Finally, public policy dictates that interpretation of 59-1303 be restricted to assets of the decedent’s estate. To hold that the statute requires the release of assets not owned by the decedent would not protect a decedent’s estate or its creditors, which is the policy behind the statute. Rather, it would injure a creditor and confer no correspondent benefit to the decedent’s estate. Such a result would be detrimental to the policy of the statute.
Defendants also argue that the Bank’s choice to submit its claim against Gilbert’s estate constitutes an election of remedies which bars the Bank from proceeding against Pauline and Michael. There is no support for this position in Kansas law.
“An election [of remedies] is required only when claims are inconsistent, such as where one claim alleges what the other denies, or the allegations are mutually repugnant.” Equitable Life Leasing Corp. v. Abbick, 243 Kan. 513, 515, 757 P.2d. 304 (1988). In this case, the Bank’s claims against Pauline and Michael are not only consistent with its claims against Gilbert’s estate, they are guaranteed by 16-104.
In this connection, it should be noted that 59-1303 does not require the release of liability. It only requires the release of security for that liability. Therefore, the Bank can properly pursue liability against Pauline and Michael, even though its security against assets of Gilbert’s estate has been released.
The Bank’s petition contains six counts. Count I prays for júdgment against Michael for the $10,000 note that he executed individually on April 28, 1987. Count II prays for foreclosure against the Finney County real estate in Michael’s separate name or jointly with his wife pledged as collateral for one of the October 15, 1986, notes. The remaining counts pray for foreclosure on the Finney County real estate in Pauline’s separate name and the stock of Krause Plow Corporation, Inc. Although it does not appear that Gilbert owned any interest in the Finney County real estate, the record is not clear on this point.
Therefore, we reverse the court’s holding that the Bank was barred from proceeding against Pauline and Michael by the doctrine of election of remedies. We also reverse the court’s holding that 59-1303 requires that the Bank release Pauline and Michael from liability on the notes, and we reverse the holding that 59-1303 requires release of security not a part of Gilbert’s estate.
The case is remanded with directions that the district court determine whether Gilbert had an ownership interest in any of the assets pledged as collateral other than the McPherson County farmland. In the event it is determined that he did not have an interest, the court should proceed on the Bank’s petition against Pauline and Michael on the assets pledged as collateral for the loans. | [
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Brazil, J.:
Steven A. Roland appeals from convictions for felony theft and misdemeanor theft, claiming , that his right to a twelve-person jury was violated. We vacate and remand.
After Roland’s trial had begun, one juror was allowed to leave due to a family death. Counsel for the State, counsel for Roland, and the court agreed to proceed with eleven jurors. The eleven-member jury found the defendant guilty on both coúnts.
Roland contends that the failure of the court to obtain his consent rather than his counsel’s consent has deprived him of his right to a jury trial as provided in the Sixth Amendment and the Fourteenth Amendment to the United States Constitution, his Fifth Amendment due process right to the benefit of Kansas statutory law on jury size, and sections 5 and 10 of the Bill of Rights to the Kansas Constitution.
K.S.A. 22-3403(2) provides: “A jury in a felony case shall consist of twelve members. However, the parties may agree in writing, at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than twelve.” K.S.A. 1990 Supp. 22-3404(4) provides: “Except as otherwise provided by law, the rules and procedures applicable to jury trials in felony cases shall apply to jury trials in misdemeanor and traffic offense cases.”
The Kansas Supreme Court interpreted K.S.A. 22-3403(2) in State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987). In Hood, one of the jurors who had sat through the first day of trial was discovered to be subject to a pending murder charge. The juror was excused, and the defendant’s attorney recommended that the trial court declare a mistrial. The trial court held that the accused, not his counsel, had the right to decide if an eleven-member jury was appropriate. The court addressed the defendant, who agreed in writing to complete the trial with eleven jurors. 242 Kan. at 123-25. In discussing this action in light of K.S.A. 22-3403(2), the Kansas Supreme court said:
“The defendant has a right to trial by jury. This is assured to him by sections 5 and 10 of the Bill of Rights of the Kansas Constitution and by the Sixth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. [Citations omitted.] . . . [S]ince the right belongs to the defendant, we conclude that the defendant personally, and not counsel for the defendant, has the right to assent to a trial by less than a twelve-person jury.” 242 Kan. at 125.
Hood thus states that the defendant can override his counsel’s objection to less than a twelve-member jury but does not ex plicitly hold that the defendant must be personally addressed regarding the right.
The right to assent to less than twelve jurors is derived from the right of the defendant to waive a jury trial. See State v. Scott, 156 Kan. 11, 15, 131 P.2d 664 (1942). Because the defendant can waive a jury trial, he can also agree to a trial by less than twelve jurors.
Regarding waiver, the Kansas Supreme Court stated in State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975):
“Since the right to a trial by jury is constitutionally preserved, waiver of the right should be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury. . . . [T]he test for determining the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily made by a defendant who knew and understood what he was doing. [Citation omitted.] . . . [A] waiver of the right to a jury trial will not be presumed from a silent record.”
The court then adopted the following procedure for accepting a waiver: “[I]n order for a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590.
Because having a jury of less than twelve is derived from the ability to waive a jury trial, the same procedures afforded to a complete waiver of jury should be extended to a reduction in the number of jurors. If, following Irving, the Kansas Legislature’s mandate that consent be in writing is relaxed to merely requiring a stipulation, then the defendant must personally waive the right in open court on the record.
Pursuant to K.S.A. 22-2103, which states that the criminal procedure code is intended to provide for the just determination of every criminal proceeding, the State argues that K.S.A. 22-3403 should not be construed technically. The State- cites two cases from other jurisdictions that construe provisions similar to the Kansas statute liberally to allow waiver without express authority from the defendant.
In State v. Ciniglio, 57 N.J. Super. 399, 154 A.2d 845 (1959), the court held that the defendant’s failure to stipulate in writing to a jury of less than twelve members as required by a New Jersey law was not an error requiring correction. The court stated that it did not approve of noncompliance with the writing requirement, but “[s]o long as defendant knowingly and understandingly participated in the oral agreement to go ahead with 11 jurors, he has no standing to now claim that such arrangement is not binding on him because it was not in writing.” 57 N.J. Super. at 406. The transcript of the trial indicated that the defendant was not personally addressed.
Similarly, in Horne v. United States, 264 F.2d 40, 42 (5th Cir. 1959), the Fifth Circuit Court of Appeals found no error in the trial court proceeding with an eleven-person jury when counsel agreed and defendant “voiced no protest and made no objection.”
Other jurisdictions, however, hold that failure to address the defendant personally is error. In United States v. Taylor, 498 F.2d 390, 391 (6th Cir. 1974), the Sixth Circuit Court of Appeals was called upon to interpret Rule 23(b) of the Federal Rules of Criminal Procedure, which provides: “ ‘Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.’ ” The judge accepted a stipulation at the beginning of the trial by counsel for the government and counsel for the defendant that, in the event a juror became ill, the case would proceed to verdict with eleven jurors. In holding that this violated the right to a jury trial, the Court of Appeals stated:
“The District Judge did not conduct any voir dire with the defendant himself, although the defendant, of course, was in the courtroom at the time the stipulation was entered. Nor did the District Judge conduct such a voir dire directly with the defendant when in fact a juror became ill and he ruled that the case would proceed with 11 jurors. Thus this record does not show that the defendant himself ever assented to the waiver, either orally or in a writing.” 498 F. 2d at 391-92.
The court then held that the word “parties” in Rule 23(b) means the defendants, and the consent of the defendant himself is needed. The Taylor court further stated that waiver even of one juror is a waiver of a basic right that cannot be inferred from a silent record. 498 F.2d at 392.
The Taylor court’s holding is consistent with United States v. Virginia Erection Corporation, 335 F.2d 868 (4th Cir. 1964), which stated as to Rule 23(b): “If the number is to be reduced, a written stipulation of the parties provides the best evidence of the express consent of a defendant.” (Emphasis in original.) 335 F.2d at 871.
Requiring a court to obtain oral consent from the defendant would be consistent with Hood, 242 Kan. 115; Irving, 216 Kan. 588; and Scott, 156 Kan. 11. Hood asserts that the right is personal to the defendant. 242 Kan. at 125. Scott acknowledges that the right to consent to less than a twelve-member jury is derived from the right to waive a jury trial altogether. 156 Kan. at 15. The logical conclusion from this is that the same protections that Irving mandates for a valid waiver of a jury trial must be complied with for a reduction in jurors to be valid. Thus, “the defendant must first be advised by the court of his right . . . , and he must personally waive this right in writing or in open court [on] the record.” Irving, 216 Kan. at 590.
In the case at hand, the State further argues that failure to comply with the writing requirement or to get the defendant’s consent in court is irrelevant because the defendant received a fair trial. A knowing and voluntary consent to less than twelve jurors is predicated not only on Kansas statute, but also on the Sixth Amendment and the Fourteenth Amendment to the United States Constitution and sections 5 and 10 of the Bill of Rights to the Kansas Constitution. Hood, 242 Kan. at 125. The United States Supreme court has recognized that some constitutional errors do not require reversal but has also held that certain rights are so fundamental that their violation cannot be harmless error. United State v. Lane, 474 U.S. 438, 461 n.2, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1985) (Brennan, J., concurring in part, dissenting in part). In Kansas, an appellate court can declare a violation harmless only if the error “had little, if any, likelihood of having changed the result of the trial.” State v. Knapp, 234 Kan. 170, Syl. ¶ 7, 671 P.2d 520 (1983). As the Taylor court recognized, to recognize the error as harmless would “open the door to emasculation of the rule [requiring written consent to less than twelve jurors]. Further, waiver of a jury trial, even the waiver of one juror, is the waiver of a basic and important right which cannot be accomplished upon ‘a silent record.’ ” United States v. Taylor, 498 F.2d at 392. Thus, Roland’s conviction must be vacated.
Vacated and remanded for a new trial. | [
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Gernon, J.:
Ronald Riedl was convicted of failure to stop at a stop sign, driving while under the influence of alcohol or drugs, refusing to submit to a preliminary breath test, and failure to stop at the scene of an accident. Other charges of failure to wear a seat belt and failure to provide proof of liability insurance were dismissed by the State prior to trial. The trial court found Riedl not guilty of driving at a speed greater than prudent and of fleeing or attempting to elude a police officer. Riedl appeals.
The trial court denied Riedl’s motion for a judgment of acquittal, which asserted a lack of identification evidence, and ruled, as a matter of law, that the compulsion defense was not available to the offenses with which he was charged.
Identification
Riedl’s challenge to the court’s ruling concerning the identification issue has no merit.
The testimony of Officers Costello and Bowman adequately identified Riedl as the individual they encountered at the time and place in question. In addition, Riedl conceded he was the driver the officers encountered. Further, Riedl stipulated that he and a companion were the ones stopped by Costello and Bowman.
Compulsion
Riedl’s challenge to the trial court’s ruling that, as a matter of law, the compulsion defense was not available to the offenses with which he is charged is one of first impression in Kansas. The precise question is whether compulsion is a legally recognizable defense to an absolute liability traffic offense.
K.S.A. 21-3209 provides:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
Appellate review of a question of law is unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
We have previously stated that certain traffic violations are “absolute liability” offenses. See City of Wichita v. Hull, 11 Kan. App. 2d 441, 445, 724 P.2d 699 (1986) (driving under the influence); City of Overland Park v. Estell, 8 Kan. App. 2d 182, 187, 653 P.2d 819 (1982), rev. denied 232 Kan. 875 (1983) (leaving the scene of an accident); State v. Baker, 1 Kan. App. 2d 568, 569, 571 P.2d 65 (1977) (speeding).
In Hull, Judge Briscoe wrote that “[t]he only proof required to convict an individual of an absolute liability offense is that the individual engaged in the prohibited conduct.” 11 Kan. App. 2d at 443.
In the case before us, Riedl and a friend went to a bar and drank beer for approximately two hours. When they left the bar, they were confronted by three people in the parking lot standing near Riedl’s vehicle. One of the three shouted a threat to Riedl. Riedl testified he reached for his keys, was punched by one of the three, ran for his car, got in, and started the vehicle.
Riedl concedes he hit another car while attempting to get away. Traveling toward the direction of his home, Riedl’s speed attracted the attention of Officers Costello and Bowman some five miles from the site of the confrontation.
Riedl contends that the fact, that he had had two friends killed in bar fights and that he had worked in a hospital contributed to his state of mind and his “compulsion” to act as he did.
Our threshold question is whether the defense of compulsion is available to a defendant charged with this type of offense. We conclude that it is.
“The fundamental rule, of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988).
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
When enacting K.S.A. 21-3209, the legislature created specific exceptions: the compulsion defense is not applicable to charges of murder or voluntary manslaughter. The legislature could easily create an additional exception for strict liability traffic offenses if it so desired. In addition, the Kansas Supreme Court’s decision in State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), cautions against judicial creation of additional exceptions. In that case, the court concluded that the compulsion defense was applicable to charges of felony murder. 241 Kan. at 642. The court noted the statutory defense, including the murder and voluntary manslaughter exception, “evolved from the common-law policy” which per mitted the assertion of this defense against criminal charges. 241 Kan. at 640.
We conclude that Kansas case law supports a conclusion that the compulsion defense is applicable to this type of offense. This court’s decisions, along with K.S.A. 21-3204, simply indicate that proof of criminal intent is not required for conviction of an absolute liability offense. See City of Overland Park v. Estell, 8 Kan. App. 2d at 187; State v. Baker, 1 Kan. App. 2d at 569.
The case law and the statute do not specifically indicate that a defense of legal justification is precluded. This court has implied that such defenses remain available. In Baker, this court stated: “We have no doubt but that if defendant were able to establish that his act of speeding was the result of an unforeseen occurrence or circumstance, which was not caused by him and which he could not prevent, that such would constitute a valid defense to the charge.” 1 Kan. App. 2d at 570.
Similarly, in Estell, we stated: “No doubt, if defendant could have shown he had somehow been rendered unaware of the accident, or because of injuries sustained had been removed from the scene under circumstances beyond his control, such would have been a valid defense to the charge.” 8 Kan. App. 2d at 187.
The case law from other jurisdictions overwhelmingly supports the conclusion that the compulsion defense, or similar defenses, should be deemed applicable to traffic offenses which do not require proof of criminal intent. The State cites no authority for the proposition that such defenses are unavailable as a matter of law and no authority to support this proposition has been located.
The trial court relied heavily upon a concurring opinion in State v. Brown, 107 Wis. 2d 44, 57-58, 318 N.W.2d 370 (1982) (Callow, J., concurring). The Brown holding was that the defense of legal justification is available against a speeding charge where the justification arises from official misconduct of law enforcement officers. 107 Wis. 2d at 55. The court in Brown noted that it did not reach the issue of whether the defense would be available “if the causative force is someone or something other than a law enforcement officer.” 107 Wis. 2d at 56. The court did note, however, that such a defense was not inherently inconsistent with a strict liability offense statute:
“We conclude that recognizing a defense of legal justification does not necessarily conflict with the concept that violation of a traffic law is a strict liability offense. The basic concept of strict liability is that culpability is not an element of the offense and that the state is relieved of the burdensome task of proving the offender’s culpable state of mind. When the defendant in the case at bar claims legal justification, he is not seeking to disprove a statutorily required state of mind. Instead he is claiming that even though he knowingly violated the law, his violation was privileged under the circumstances.” 107 Wis. 2d at 53.
The Wisconsin courts have not yet resolved the issue of extending the legal justification beyond conduct which was provoked by a law enforcement officer.
A number of jurisdictions have explicitly recognized the applicability of similar defenses to similar charges. See Browning v. State, 31 Ala. App. 137, 141, 13 So. 2d 54 (1943) (compulsion defense applicable to charge of reckless driving); People v. Pena, 149 Cal. App. 3d Supp. 14, 23, 197 Cal. Rptr. 264 (1983) (duress defense applicable to charge of driving under the influence); State v. Messler, 19 Conn. App. 432, 437, 562 A.2d 1138 (1989) (necessity defense applicable to speeding charge); State v. Brown, 306 Or. 599, 605-06, 761 P.2d 1300 (1988) (necessity defense applicable to charge of driving while license suspended); State v. Olson, 79 Or. App. 302, 304-05, 719 P.2d 55 (1986) (choice of evils defense applicable to charge of driving under the influence).
A number of decisions have implicitly accepted the applicability of similar defenses, while concluding the evidence was insufficient to raise the defense. See Reeve v. State, 764 P.2d 324, 326 (Alaska App. 1988) (necessity defense, charges of driving while intoxicated and driving without a license); People v. Dover, 790 P.2d 834, 836 (Colo. 1990) (emergency defense, speeding charge); People v. Weiser, 789 P.2d 454, 455-56 (Colo. App. 1989) (choice of evils defense potentially applicable to charge of driving after license revoked, but defendant’s evidence was insufficient as a matter of law); People v. Janik, 127 Ill. 2d 390, 398-99, 537 N.E.2d 756 (1989) (necessity defense potentially applicable to charges of driving under the influence and leaving the scene of an accident, but defendant’s evidence insufficient to raise the defense); State v. Fee, 126 N.H. 78, 80-81, 489 A.2d 606 (1985) (competing harms defense, driving under the influence charge); State v. Cooke, 94 N.C. App. 386, 387, 380 S.E.2d 382 (1989) (coercion and duress defenses, driving while impaired charge); Com. v. Hoke, 381 Pa. Super. 70, 81, 552 A.2d 1099 (1989) (justification defense, leaving the scene of an accident charge); State v. Squires, 147 Vt. 430, 431, 519 A.2d 1154 (1986) (necessity defense, driving under the influence charge).
Once we accept the availability of the compulsion defense to absolute liability traffic offenses, we must examine the record carefully to determine whether there was sufficient evidence to invoke the compulsion defense.
The Kansas Supreme Court recently stated in State v. Hunter, 241 Kan. 629, Syl. ¶ 10:
“In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion- or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. [Citation omitted.] In addition, the compulsion must be continuous and there must be no reasonable opportunity to escape the compulsion without committing the crime.”
In People v. Pena, 149 Cal. App. 3d Supp. at 25-26, the elements of the duress defense were listed as: (1) the act charged as criminal must have been done to prevent a significant evil; (2) there must have been no adequate alternative to the commission of the act; (3) the harm caused by the act must not be disproportionate to the harm avoided; (4) the accused must entertain a good faith belief that his act was necessary to prevent the greater harm; (5) such belief must be objectively reasonable under all the circumstances; and (6) the accused must not have substantially contributed to the creation of the emergency.
At trial, Riedl did not argue that the compulsion defense was applicable to the charges of refusing to submit to a preliminary breath test and failure to stop at a stop sign. In addition, we conclude that the evidence was insufficient to establish the compulsion defense with respect to the charge of driving while under the influence of alcohol or drugs. The evidence fails to demonstrate that the compulsion was “continuous.” See State v. Dunn, 243 Kan. 414, 421, 758 P.2d 718 (1988). Riedl himself testified, “When I left out of there, I thought there was a possibility that the guys in the parking lot would chase us.” (Emphasis added.) There is no evidence to indicate that Riedl was, in fact, followed. Riedl drove his vehicle for approximately five miles without stopping or otherwise seeking assistance. This lack of a continuous threat is fatal to any attempt to assert the compulsion defense. The distance traveled and the time involved provided Riedl with ample opportunity to withdraw from the criminal activity and seek aid. See State v. Dunn, 243 Kan. at 422; State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983).
The difficulty in this case is in the consideration of the charge of leaving the scene of an accident. Riedl testified he was between the entrance to the bar and his car when the confrontation began. Understandably, the trial court made no factual findings concerning the elements or requirements of the compulsion defense. Our reading of the record leads us to conclude that the evidence is uncertain as to whether Riedl had a reasonable opportunity to escape. Absent this evidence, we are required to reverse the conviction for leaving the scene of an accident and remand the case for further factual findings by the trial court.
The trial court erred in concluding that the compulsion defense was not applicable as a matter of law to absolute liability traffic offenses. However, the record clearly indicates that Riedl’s evidence does not support the defense in so far as driving while under the influence of alcohol or drugs.
Our appellate courts have often stated that we will affirm a trial court’s decision that is correct even though it may be based on an incorrect reason. “[W]here the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.” State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987).
The conviction for leaving the scene of an accident is reversed and remanded for further factual findings.
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Miller, J.:
This is an interlocutory appeal by the State from the trial court’s suppression of evidence regarding defendant Daniel Leroy’s refusal to submit to a breathalyzer test after his arrest for driving while under the influence of alcohol.
On October 28, 1989, defendant was stopped on Highway 56 in Barton County. The arresting officer, Sergeant Causey, had observed defendant’s car cross the center line several times. Upon asking defendant for his driver’s license, Causey noticed the smell of alcohol. He formed the opinion that defendant was intoxicated based upon the odor, the fact that defendant’s car had crossed the center line numerous times, and the fact that defendant had difficulty producing his driver’s license.
Upon being asked by Causey to step from the car, defendant refused, stating he was not under arrest. The officer told defendant to consider himself under arrest and to get out of the car. Upon being asked to take the standard coordination tests and to answer certain questions, defendant again refused. At that point, Causey gave defendant the Miranda warnings and handcuffed him. Defendant testified that he immediately requested to speak to his attorney.
After transporting defendant to the sheriff’s office, Causey sought defendant’s consent to submit to the breath test. Causey read the consent form and defendant again requested his attorney. Defendant testified Causey told him he had no right to an attorney prior to taking the test. Defendant then refused to take the test.
Prior to trial, defendant moved to suppress the evidence of his refusal to take the breath test. He argued the conversation about the breath test and the request that he take the test were after he had requested counsel and violated his right to counsel. The trial court agreed, basing its decision primarily on State v. Hartfield, 245 Kan. 431, Syl. ¶ 4, 781 P.2d 1050 (1989).
The State argues defendant’s refusal to submit to the breath test should be admissible evidence. The basis for this argument is twofold. The primary emphasis of the State is that defendant’s Fifth Amendment rights were not violated. The State contends that asking defendant to submit to a breath test was not custodial interrogation and, therefore, did not violate defendant’s right to an attorney. The second contention is that defendant had no Sixth Amendment right to counsel at that stage of the investigation since requesting a breath test is not classified as a critical stage of the proceedings. At oral argument, counsel for defendant advised us that defendant relies solely upon his Fifth Amendment right to counsel and no Sixth Amendment issue is involved. Accordingly, we have considered only Fifth Amendment issues.
Defendant contends the evidence should be suppressed because, once a person has been taken into custody and has requested counsel, all questioning of that person, including a request to submit to a breath test, must cease until counsel is present.
In the present case, there is no dispute over the facts. Both sides agree defendant requested an attorney and that Causey asked defendant to submit to a breath test prior to honoring defendant’s request. The dispute in this case is over the trial court’s conclusions of law and, thus, this court’s review is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court held the prosecution cannot use statements, whether inculpatory or exculpatory, stemming from custodial interrogation, unless it proves that procedural safeguards were used to secure defendant’s privilege against self-incrimination. These safeguards included informing the person in custody, prior to interrogation, of his Fifth Amendment rights to remain silent, to consult with an attorney, and to have an attorney present during interrogation. Further, if the person in custody states that he wants an attorney, all questioning must cease until the attorney is present. 384 U.S. at 445.
In order to apply the law of Miranda, two factors must be understood. First, once a person is taken into custody, he must be read his rights. One of those rights is that the accused has a right to counsel and, if the accused requests counsel, “ ‘the interrogation must cease until an attorney is present.’ ” Edwards v. Arizona, 451 U.S. 477, 482, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 (1981). Second, the right to be free from questioning until counsel arrives applies only to custodial interrogation. See Miranda, 384 U.S. at 444.
The Court in Miranda attempted to define custodial interrogation. According to the Court, custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444. Over the years, this definition has been further clarified to separate communicative testimony from real or physical evidence. Communicative testimony is protected by the privileges provided in the Fifth Amendment; real or physical evidence is not protected. Schmerber v. California, 384 U.S. 757, 764, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). In distinguishing between communicative testimony and real or physical evidence, the court in Schmerber held that the taking of blood samples for the purpose of determining intoxication was not communicative testimony. 384 U.S. at 765.
As a result of the Supreme Court’s definition of custodial interrogation, the State argues the request to take a breath test was not interrogation and, therefore, defendant did not have a Fifth Amendment right to counsel. Defendant offers two responses. First, he claims interrogation includes any questions initiated by an officer after a person is taken into custody. Second, he contends, once a person is arrested, he or she has an immediate right to the presence of counsel.
Defendant is wrong in asserting that any questioning initiated by a law enforcement officer qualifies as interrogation. The case law following Miranda makes it very clear that only questioning which rises to the level of custodial interrogation is protected. See Edwards, 451 U.S. at 481-82. The case lgw also makes it clear that there is a distinction between real evidence and communicative testimony and that blood tests for intoxication are real evidence. Schmerber, 384 U.S. at 764. Because real evidence does not rise to the level of custodial interrogation, as it does not require the accused to communicate any personal beliefs or knowledge of facts, defendant did not have a Fifth Amendment right to counsel. See Pennsylvania v. Muniz, 496 U.S. -, 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990).
Further, defendant is wrong in asserting that, simply because he has been taken into custody, he has the immediate right to an attorney. The Fifth Amendment right to an attorney only applies to prevent an accused from self-incrimination in situations where he or she is being interrogated. See Schmerber, 384 U.S. at 767; Miranda, 384 U.S. 436.
Defendant cites extensive authority for the proposition that “all questioning must cease” once counsel is requested. However, a close reading of the authorities cited does not indicate that absolutely all questions must cease, but rather only those that meet the definition of custodial interrogation. See Muniz, 496 U.S. -; Edwards, 451 U.S. 477; Miranda, 384 U.S. 436; Hartfield, 245 Kan. at 435-36.
Defendant also refers us to cases which generally state that any questioning initiated by a law enforcement officer after a person is.taken into custody is custodial interrogation. Once again, however, a closer reading of the cases does not dictate that, all questioning is custodial interrogation. See Miranda, 384 U.S. 436; State v. Jones, 246 Kan. 214, 216-17, 787 P.2d 726 (1990); State v. Bohanan, 220 Kan. 121, 127-29, 551 P.2d 828 (1976). Only questions that require suspects to communicate any personal beliefs or knowledge of facts meet the definition of communicative testimony that qualifies as custodial interrogation. Muniz, 496 U.S. -.
Based on Miranda and its progeny, it is clear that Causey’s request that defendant submit to a breath test did not qualify as custodial interrogation. Because the taking of physical evidence to determine intoxication does not classify as custodial interrogation, defendant’s Fifth Amendment privileges were not invoked and he had no right to an attorney. Thus, his refusal to submit to the requested test was properly admitted.
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Rulon, J.:
In this contract action, Safelite Glass Corporation (Safelite), plaintiff, appeals from the district court’s entry of summary judgment for Richard Max Fuller, defendant. Safelite brought this action, seeking injunctive relief and damages, to enforce Fuller’s covenant not to compete in the replacement auto glass business. Fuller sold his auto glass business to Lear Siegler, Inc: (LSI). The asset purchase agreement contained a noncom-petition clause prohibiting Fuller from competing in the auto glass business for five years. The Fuller-LSI agreement contemplated that Fuller would be employed by LSI; Fuller later worked for LSI as a district manager. LSI subsequently assigned all its assets, including the Fuller agreement, to Safelite. The district court found that LSI’s assignment of assets to Safelite constituted a termination of Fuller’s employment and voided the noncompetition agreement.
We must decide (1) whether Fuller’s covenant not to compete was assignable and (2) whether the district court erred in concluding LSI’s transfer of assets and liabilities to Safelite operated as a termination of Fuller’s employment, voiding the covenant not to compete. We reverse and remand with directions.
The material facts are as follows:
Fuller was the sole stockholder of the Kansas corporation Magic Glass Company of Kansas, Inc. (Magic). In August 1986, Magic and Fuller, as sellers, entered into an extensive asset purchase agreement with LSI, a Delaware corporation. The agreement provided that LSI would purchase virtually all of Magic and Fuller’s operating assets and assume all liabilities, except liabilities specifically excluded by the agreement. The agreement contained a noncompetition clause which provided:
“As part of the consideration paid by LSI hereunder, Seller [Magic] and Fuller agree with LSI that for a term of five (5) years after the Effective Date, Seller and Fuller each will refrain from using the name ‘Magic Glass’ when it relates to the replacement glass business and will refrain from carrying on, directly or indirectly, a business competitive with the business conducted by Seller (or by LSI as successor), within the State of Kansas or Missouri. To ‘carry on a business’ shall mean acting as a consultant, employee, sole proprietor, general or limited partner of a partnership, joint venturer, officer, director, shareholder owning more than 10% of the stock of a corporation, or holder of any profit sharing interest or arrangement with any business enterprise or corporation which carries on such a business.
“A. Notwithstanding anything to the contrary herein stated, it is contemplated that Fuller shall become an employee of LSI. In the event that Fuller becomes an employee of LSI or any of its subsidiaries and is thereafter terminated by LSI for a reason other than [the several following reasons] then this noncompete [agreement] shall be null and void. If Fuller voluntarily terminates employment, the noncompete agreement herein contained shall be in effect.”
The agreement basically provided that the noncompetition clause would be enforceable if Fuller was terminated by LSI for cause, and the agreement listed several situations which established cause. The agreement also contained a clause stating, “This Agreement shall he binding upon and inure to the benefit of the parties and their respective successors and assigns.“ (Emphasis supplied.)
Immediately after the sale, Fuller began working for LSI as a district manager. He earned a yearly salary of $50,000, a yearly bonus of $25,000 guaranteed for three years, and fringe benefits such as payment of country club dues and car telephone bills.
In 1987, LSI established a corporate division known as the Safelite Division to conduct its auto glass operations. LSI later formed the plaintiff corporation, Safelite, and assigned to it all the assets and obligations of its auto glass business, including the Fuller-LSI agreement. The LSI-Safelite transfer of assets occurred on March 24, 1987. Fuller apparently continued working for the successor corporation, Safelite, at least through May 1989.
On March 23, 1990, Fuller formed a Kansas corporation called Budget Auto Glass, Inc., (Budget) which began business replacing auto glass in Gardner and Chanute, Kansas. Safelite filed this action in June 1990, alleging that Fuller’s operation of Budget was a violation of the noncompetition agreement. Safelite filed an application for a temporary injunction on June 18, 1990, asking the district court to restrain Fuller and Budget from operating an auto glass replacement business.
Fuller answered Safelite’s petition on June 27, 1990, denying that his operation of Budget violated the noncompetition clause. Fuller asserted five affirmative defenses, alleging that (1) Safelite failed to state a claim for which relief could be granted; (2) Safelite was barred by waiver, estoppel, statute of limitations, laches, failure of consideration, release, or any other affirmative defense appearing during discovery; (3) the noncompetition clause in the Fuller-LSI agreement was a personal contract and nonassignable; (4) Fuller was “constructively terminated from his employment with the plaintiff,” and thus the noncompetition clause was void by its own terms; and (5) the noncompetition clause was impermissibly broad and therefore unenforceable.
Later, Fuller filed a motion for summary judgment with an attached supporting memorandum. He argued in his memorandum that the noncompetition clause was a personal contract benefiting only LSI and was not assignable and that, because Safelite was not a party to or an intended beneficiary of the Fuller-LSI agreement, Fuller was entitled to summary judgment as a matter of law. The affidavit attached to his motion stated that LSI had specifically requested that the noncompetition clause in the Fuller-LSI agreement inure to the benefit of Safelite, but that Fuller had not agreed to those terms and had intended the clause to benefit only LSI. Fuller filed a supplemental memorandum two days before the hearing on his summary judgment motion, in which he admitted the existence of a general assignability clause in the Fuller-LSI agreement, but argued that the noncompetition clause itself contained a restriction against assignability. The supplemental memorandum also asserted that the noncompetition clause became void and unenforceable by its own terms when LSI assigned the contract to Safelite.
On the other hand, Safelite argued that covenants not to compete are generally assignable, that the covenant in this case is a negative covenant, not a personal service contract as argued by Fuller, and that the Fuller-LSI agreement was fully assignable and enforceable by Safelite due to the contract’s assignability clause.
On the day the district court granted Fuller summary judgment, Safelite filed a supplemental response, alleging that Fullers employment was never terminated by LSI or Safelite. Additionally, Safelite argued that Fuller consented to the LSI-Safelite assignment by working for and accepting benefits from Safelite after the assignment. Safelite further argued that because Fuller accepted employment benefits from Safelite, he was estopped from denying that the covenant not to compete benefited Safelite. Finally, Safelite argued that if the court found that Fuller was indeed terminated, a factual issue would remain regarding whether the termination was voluntary or involuntary, and, therefore, summary judgment was not appropriate.
The district court’s journal entry, in part, provides:
“The contract between defendant and Lear Siegler, Inc. is not ambiguous and the non-competition clause becomes void upon the transfer of the Safelite division or the Safelite division assets to a third party.
“Defendant ceased to be employed by Lear Seigler [sic], Inc. upon the sale of the business. The assignment of the non-compete agreement in favor of Lear Seigler [sic], Inc. . . . was ineffective as it became void under its terms.”
1. The Covenant Not to Compete
Safelite contends that Fuller’s covenant not to compete is a negative covenant bargained for by LSI, its predecessor, to protect the transferred good will of Fuller’s former business and is enforceable by Safelite as LSI’s successor. Fuller contends that the covenant obligated him only to LSI and that the personal nature of the promises and obligations contained in the agreement are enforceable only by LSI.
The rules for the district court’s grant of summary judgment and this court’s scope of appellate review of that grant are well settled.
“Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. [Citations omitted.]” Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).
See K.S.A. 1990 Supp. 60-256(c).
Kansas appellate courts have never addressed the question of whether covenants not to compete can be enforced by a successor purchaser of a business. The parties have pointed out that a split of authority exists in the jurisdictions that have addressed the issue.
The general rule appears to be that valid covenants not to compete are assignable and enforceable by a subsequent purchaser of a business as an incident of the business, whether or not there is an express assignment by the seller. Nenow v. L.C. Cassidy & Son of Florida, Inc., 141 So. 2d 636, 639 (Fla. Dist. App. 1962); Jenson v. Olson, 144 Mont. 224, 228, 395 P.2d 465 (1964); Abramov v. Royal Dallas, Inc., 536 S.W.2d 388, 390 (Tex. Civ. App. 1976). See generally Annot., 4 A.L.R. 1078, 22 A.L.R. 754; 6 Am. Jur. 2d, Assignments § 19.
However, there is some authority for the proposition that such covenants are personal contracts and not assignable. Fuller principally relies upon two cases to support his assertion that the covenant involved in this case is nonassignable. Avenue Z Wet Wash Laundry Co., Inc. v. Yarmush, 129 Misc. 427, 428, 221 N.Y.S. 506 (N.Y. Sup. Ct. 1927), and Jeansonne v. El Hindy, 413 So. 2d 999 (La. App. 1982).
In Avenue Z, the New York Supreme Court determined that a covenant not to compete contained in a bilateral employment contract was not assignable. In that case, Yarmush entered into a contract with the East End Wet Wash Laundry Co., Inc. (East End), agreeing to solicit customers in a certain area for specified compensation. The noncompetition agreement provided that if the relations between the parties were terminated through no act of the laundry company, Yarmush would not set up or conduct similar work for a period of eighteen months. A series of assignments occurred, with East End assigning the business to Ocean Laundry Service, Inc., which then assigned it to the plaintiff, Avenue Z. Yarmush continued in his position under the same terms and conditions with each of the successor purchasers. He then resigned and began performing similar services for one of Avenue Z’s competitors. Avenue Z filed suit seeking to restrain Yarmush under the employment contract. The court declined to enforce the covenant, stating:
“This is a bi-lateral contract for personal services and while the services are not extraordinary or unique, the contract calls for the services of the individual defendant and of no other. [Yarmush] did not assent to the substitution of this plaintiff in the place of the corporation with which he had made the contract, and even though he continued in the service of the assignee at the same compensation and did the same work, that in itself does not show such substitution. [Citation omitted.] The general rule is that no bi-lateral contract for personal services can be assigned by either party to it. (1 Williston Cont. 785.) Such a contract involves a personal relation and inasmuch as the performance cannot be delegated, the contract cannot be assigned. [Citations omitted.]” 129 Misc. at 428.
Safelite attempts to distinguish Avenue Z on the basis that in this case a sale of the business occurred, while Avenue Z dealt with an assignment of the personal services of a salesman. This argument is not convincing, however, because it is obvious that Avenue Z involved both a sale of a business and an assignment of assets, just like this case.
We believe the distinguishing factor in Avenue Z is that the covenant there was contained in an employment contract rather than in a contract for the sale of the business. 129 Misc. at 427. Kansas courts have recognized a distinction between the two. When determining the reasonableness of a covenant, a covenant not to compete contained in an employment contract is generally strictly construed against an employer because the employee is in a weaker bargaining position at the time of contract formation than is a party selling his or her business. See H & R Block, Inc. v. Lovelace, 208 Kan. 538, 544-45, 493 P.2d 205 (1972).
Further, the court’s rationale in Avenue Z has been questioned by the courts of New York, and it is not clear that New York courts would reach the same result today. See, e.g., Abalene Pest Control Service, Inc. v. Powell, 8 App. Div. 2d 734, 735, 187 N.Y.S.2d 381 (1959) (covenant not to compete is freely assignable if the original parties to the agreement so intend). The Abalene rule was recently followed by the New York Supreme Court, Appellate Division, in Special Products Mfg., Inc. v. Douglass, 159 App. Div. 2d 847, 553 N.Y.S.2d 506 (1990).
Special Products is a case very similar to the instant case, except that the covenants there were contained in employment contracts. The defendant Douglass, a “highly and uniquely trained” service representative of hardness-testing machinery, entered into two different employment contracts with the Page-Wilson Corporation. Both contracts contained covenants not to compete. 159 App. Div. 2d at 847.
Page-Wilson sold all its assets and contractual rights to the Canrad Corporation, which operated the business through its wholly owned subsidiary, the plaintiff Special Products. Douglass continued his employment with Special Products for approximately one year, then voluntarily resigned and established a competing business. Special Products sued to enforce the covenant. Douglass claimed inter alia that the plaintiff could not enforce the covenant because he entered into the agreement with Page-Wilson and not the plaintiff. The court concluded that Special Products could enforce the covenant, finding the original parties intended the contracts to be assignable as evidenced by a general assignability clause in the first employment contract. The assign-ability clause relied upon by the Special Products court was virtually identical to that in the Fuller-LSI agreement. The second contract Douglass entered into with Page-Wilson did not contain the clause, but the court found no specific restriction on its assignability. Accordingly, the trial court’s decision was affirmed. 159 App. Div. 2d at 848-49.
Fuller also relies on Jeansonne v. El Hindy, 413 So. 2d 999 to support the proposition that noncompetition agreements are enforceable only by the named obligee. There, the Jeansonnes sold their grocery store to El Hindy and agreed not to compete within one square mile of their former business. El Hindy sold the business to a third party. The Jeansonnes opened a competing business less than a mile from their old store and, after threats of a lawsuit by the new owner, filed a declaratory judgment action seeking to-void the noncompetition clause. The trial court concluded that the Jeansonnes’ contract was personal and could not be assigned to the third party. The Louisiana Court of Appeals agreed, finding the agreement benefited El Hindy personally and not the Jeansonnes’ former business. The court reasoned that such agreements require strict construction because they restrain services by one individual for the benefit of another, and they should be construed in favor of freedom of competition. 413 So. 2d at 999-1000.
In reaching that result, the court distinguished its opinion in Louisiana Office Systems, Inc. v. Boudreaux, 298 So. 2d 341 (La. App.), remanded on other grounds 302 So. 2d 37 (La. 1974), dismissed on other grounds 309 So. 2d 779 (La. App. 1975). Louisiana Office Systems held that a successor corporation could enforce a covenant not to compete contained in an employment agreement. The Jeansonne court found the case distinguishable for three reasons: (1) The Louisiana Office Systems agreement was assignable by the obligee based on Louisiana statutes, but the covenant not to compete in Jeansonne was personal; (2) the corporate successor in Louisiana Office Systems was essentially the same entity as the original, where Jeansonne involved a third-party successor; and (3) no evidence of an assignment of the noncompetition agreement existed in Jeansonne between the contracting party and the successor purchaser, a fact the Louisiana Office Systems court found important. 413 So. 2d at 1000-01.
We are convinced the instant case is more like Louisiana Office Systems rather than Jeansonne. Here the corporate successor, Safelite, is essentially the same entity as the original buyer of Fuller’s business, LSI. Further, the record clearly reflects that LSI assigned all its contract rights to Safelite. We are unaware of any Kansas statute which specifically makes covenants not to compete assignable, but Kansas case law has long supported free assignability of contract rights, except those involving personal and confidential relations to which liabilities are attached. See Standard Chautauqua System v. Gift, 120 Kan. 101, 103, 242 Pac. 145 (1926).
The covenant not to compete here does not involve contract rights involving personal and confidential relations to which liabilities are attached. For examples of contracts involving such personal services, see Standard Chautauqua System, 120 Kan. 101 (contract to entertain and provide speaker services); Smith & English, Partners v. Board of Education, 115 Kan. 155, 157-58, 222 Pac. 101 (1924) (contract for architectural services). Instead, the covenant in this case protects the good will of the business Fuller sold to LSI, and because LSI bargained and paid for the good will of Fuller s business, its successor in interest should be able to enforce the covenant against Fuller. See Haugen v. Sundseth, 106 Minn. 129, 133, 118 N.W. 666 (1908); Saliterman v. Finney, 361 N.W.2d 175, 177-78 (Minn. App. 1985).
Fuller’s argument that the covenant in this case expressly prohibited assignments is not convincing. While the covenant mentions only LSI as obligee, there is no express language in the covenant which appears to limit its assignability. Additionally, the LSI-Safelite transfer of assets is more in the nature of a corporate reorganization rather than a transfer of assets to a third-party successor. Because Fuller continued in substantially the same job after the transfer, the particular factual circumstances here, as well as the contractual language, support the assignability of the covenant. In the absence of express language which limits assignability, covenants not to compete which do not involve personal and confidential relations are assignable and may be enforced by a subsequent purchaser of a business as an incident of the business.
2. The Termination
Safelite contends the district court erred in granting Fuller’s summary judgment motion based on the finding that LSI’s assignment of assets to Safelite constituted a termination of Fuller’s employment, thus voiding Fuller’s covenant not to compete. Safelite argues that Fuller was not terminated by either LSI or Safelite, but voluntarily resigned in June 1989. Additionally, Safelite contends that the LSI-Safelite assignment did not affect the location or nature of Fuller’s employment and that whatever employer-employee relationship existed between Fuller and LSI was transferred to Safelite. Further, it argues the asset purchase agreement Fuller executed with LSI specifically provides for assignments, and the district court’s disregard of the agreement’s assignability clause deprives Safelite of the goodwill of Fuller’s former business, which LSI bargained and paid for. Fuller argues that termination for any reason not listed in the LSI contract voids his covenant not to compete. Fuller argues he was terminated by LSI for an unlisted reason because LSI no longer existed after the assignment of assets to Safelite.
“[0]rdinarily, a motion for summary judgment should not be sustained so long as discovery is incomplete.” St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 274, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990). Furthermore, “courts should be cautious in granting summary judgment where the issues in the case ... involve questions of the intent of the parties.” Noller v. General Motors Corp., 244 Kan. 612, 617, 772 P.2d 271 (1989).
In this case, discovery was not yet completed when the trial judge determined that LSI’s assignment of assets to Safelite terminated Fuller’s employment, thus voiding the noncompetition clause. Additionally, the issue here involves questions of what the parties intended the word “terminated” to mean as the term is used in the Fuller-LSI agreement. The record, viewed in the light most favorable to Safelite, demonstrates that the district court erred in granting summary judgment because there were disputed factual issues and because Fuller could not establish that he was entitled to judgment as a matter of law.
Did LSI “terminate” Fuller’s employment within the meaning of the Fuller-LSI agreement by assigning its assets to Safelite? Safelite argues that no termination occurred because any employee-employer relationship between Fuller and LSI was transferred to Safelite. Safelite argues that when the word “terminated” is interpreted in light of the whole agreement, it is clear the trial court erred in determining that LSI’s assignment of assets effected a not-for-cause termination of Fuller’s employment.
This court can construe and determine the legal effect of contracts regardless of the construction adopted by the trial court. NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558, 562, 775 P.2d 675, rev. denied 245 Kan. 785 (1989).
The language of the Fuller-LSI contract quoted above provided that Fuller’s covenant would become void if Fuller “is . . . terminated by LSI” for a reason other than those listed in the agreement. Generallyjithe word “terminate” means “[t]o put an end to; to make to cease; to end.” Black’s Law Dictionary 1471 (6th ed. 1990). Obviously Fuller’s employment relationship with LSI terminated when LSI ceased to exist as a corporate entity. However, Safelite argues that LSI and Fuller intended that Fuller’s covenant not to compete would be enforceable by LSI’s successor in interest, and this intent is demonstrated by the assignability clause in the agreement. Fuller argues that the assignability clause is boilerplate language over which the specific provisions of the noncompetition clause control and that those provisions specifically restrict, its assignability. Fuller further argues that, because LSI’s sale of assets terminated Fuller’s employment and thus voided the noncompetition agreement, Safelite cannot enforce the agreement against him.
If the noncompetition clause became void by its own terms, clearly Safelite cannot enforce the clause against Fuller. See Kumberg v. Kumberg, 232 Kan. 692, 699-700, 659 P.2d 823 (1983) (one taking assignment of void contract acquires nothing).
Each party cites several cases from other jurisdictions which determined whether an employee was “terminated” upon the sale of a business when the employee continues the same job with the successor employer. However, the cited cases are. not particularly helpful to the resolution of the issue in this case. Most of those cases dealt with termination or severance benefits under employment contracts or ERISA plans and, in most cases, the courts determined that benefits were not available because the claimants never actually became unemployed, thus not coming within the class of persons severance pay is intended to protect. See Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1149 (4th Cir. 1985), cert. denied 477 U.S. 903 (1986); Sly v. P.R. Mallory & Co., Inc., 712 F.2d 1209, 1213 (7th Cir. 1983); Pinto v. Zenith Radio Corp., 480 F. Supp. 361, 364 (N.D. Ill. 1979), aff'd 618 F.2d 110 (7th Cir. 1980); Younger v. Thomas Int’l Corp., 275 Ark. 327, 331-32, 629 S.W.2d 294 (1982); Linz v. Champion Int’l Corporation, 208 Mont. 99, 103, 675 P.2d 979 (1984). But see Anderson v. Ciba-Geigy Corp., 759 F.2d 1518 (11th Cir.), cert. denied 474 U.S. 995 (1985); and Willets v. Emhart Mfg. Co., 152 Conn. 487, 491, 208 A.2d 546 (1965) (sale of division resulted in involuntary termination despite fact plaintiffs accepted position with successor).
Here the district court determined that the covenant not to compete was not assignable; therefore, LSI’s transfer of assets to Safelite constituted a termination of Fuller’s employment. This holding nullified the assignability clause contained in the Fuller-LSI agreement. The cardinal rule of contract construction requires courts to determine the parties’ intent from the four corners of the instrument by construing all provisions together and in harmony with each other rather than by critical analysis of a single or isolated provision. Barnhart v. McKinney, 235 Kan. 511, 519, 682 P.2d 112 (1984); Brown v. Lang, 234 Kan. 610, 615, 675 P.2d 842 (1984). Furthermore, the cardinal rule stated above must be applied prior to the introduction of any extrinsic evidence regarding the intent of the parties. First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 624, 602 P.2d 1299 (1979).
Here, the district court considered the affidavit of Donald Hartig, the former assistant secretary and vice-president/controller of Safelite, in determining that the parties did not intend the covenant to be enforceable by LSI’s successor in interest. Hartig’s affidavit stated that Safelite had requested a covenant broad enough to be enforceable by Safelite, but that Fuller refused to agree to such a broad provision, so the covenant was drafted to run only to the benefit of LSI. This affidavit was attached to Fuller’s supplemental memorandum in support of his motion for summary judgment, which memorandum was filed only two days prior to the hearing on his summary judgment motion. Safelite intended to controvert Hartig’s assertion, but the affidavit filed by Safelite, stating that the parties did not agree that the covenant would benefit only LSI, was not notarized. However, Safelite was attempting to secure a notarized affidavit at the time of the summary judgment hearing.
The district court relied upon extrinsic evidence regarding the parties’ intent that was introduced only two days before the hearing on Fuller’s summary judgment motion. Viewing the record in the light most favorable to Safelite, the district court erred in granting summary judgment on the basis of extrinsic evidence without giving Safelite an adequate opportunity to controvert Fuller’s suggested interpretation of the contract.
Safelite also argues that Fuller is estopped from arguing that he was terminated by LSI by virtue of its transfer of assets to Safelite in 1987 because he continued working for LSI at the same salary and in the same position for three years after the transfer. Fuller contends that the doctrine of equitable estoppel cannot be used offensively by Safelite; that Safelite did not detrimentally rely on any of Fuller’s actions; and that the evidence Safelite presents to prove that Fuller’s employment continued with Safelite was not presented to the trial court and cannot be considered on appeal.
Fuller is correct in asserting that Safelite cannot demonstrate that his actions induced any detrimental reliance on the part of Safelite. Safelite contends it relied on Fuller’s action of accepting the benefits of employment by Safelite and thus made no accommodation or took any action to protect the goodwill of Fuller’s former business. We are convinced that Safelite’s failure to take any action does not constitute detrimental reliance. See In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 (1976) (one asserting estoppel must show a change in position in reliance on other party’s misleading statement).
We conclude Fuller’s continued employment by Safelite in the same position and at the same salary did not constitute a termination of employment. As a practical matter, the only effect of the LSI-Safelite transfer of assets was a change in the name of Fuller’s employer.
Here, the parties disagreed on the issue of the assignability of the covenant not to compete, and they disagreed on whether the word “terminated” as used in the Fuller-LSI agreement encompassed the change in corporate ownership. Because we have resolved both of these issues in Safelite’s favor, a factual issue of whether Fuller voluntarily terminated his employment with Safelite remains.
We reverse the district court’s entry of summary judgment in favor of Fuller on the issues of assignability and termination, and we remand the case to the district court for consideration, con sistent with the provisions of this opinion, of whether Fuller voluntarily terminated his employment with Safelite. | [
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Royse, J.:
This is a divorce action in which the respondent husband appeals the property division. The sole issue is whether the trial court erred in dividing an account containing husband’s social security disability benefits.
The facts are undisputed. Edward and Susan Knipp were married November 2, 1985. Edward had suffered a heart attack in 1983. During the marriage, Edward received a lump sum social security disability benefit of approximately $12,800. This lump sum was for disability suffered prior to the marriage.
After Edward received the lump sum payment, he invested it in an interest-bearing account. At the time of the divorce, $9,200 remained in the account. The court ordered $3,000 from that account set over to Susan as part of the property division.
The question whether a trial court may divide a lump sum social security disability award requires an examination of 42 U.S.C. § 407(a) (1988), the anti-assignment section of the Social Security Act. That section provides:
“(a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” (Emphasis added.)
Susan argues that the anti-assignment section applies only to benefits not yet received. The United States Supreme Court, however, has determined that 42 U.S.C. § 407(a) applies to benefits received and deposited in a savings account. Philpott v. Essex County Welfare Board, 409 U.S. 413, 34 L. Ed. 2d 608, 93 S. Ct. 590 (1973). In Philpott, petitioner Wilkes had received retroactive social security disability benefits. The Welfare Board sought to reach Wilkes’ bank account holding the benefits, pursuant to a reimbursement agreement Wilkes had been required to sign to receive state assistance. Writing for a unanimous court, Justice Douglas reasoned that retroactive benefits placed in an account retained the quality of “moneys” within the scope of 42 U.S.C. § 407. Noting the “all-inclusive” language of the anti-assignment section, the Court held that § 407 “imposes a broad bar against the use of any legal process to reach all social security benefits.” 409 U.S. at 417.
Susan argues that because social security benefits may be garnished in child support and alimony cases it is equally appropriate to subject paid benefits to property division orders. This argument is without merit. Congress expressly declared in 1975 that social security benefits are subject to legal process to enforce child support and alimony obligations. 42 U.S.C. § 659(a) (1988). See Mariche v. Mariche, 243 Kan. 547, 548-49, 758 P.2d 745 (1988). In 1977, Congress enacted 42 U.S.C. § 662(c) (1988), which restricts the meaning of alimony. Alimony “does not include . . . equitable distribution of property, or other division of property between spouses or former spouses.” 42 U.S.C. § 662(c). Thus, while Congress has modified the anti-assignment rule for past-due child support or alimony, clearly it has not gone so far as to permit the courts to apportion social security payments in a property division order.
We conclude that the trial court erred in setting aside a portion of Edward’s lump sum social security benefits to Susan in the property division order. However, the anti-assignment statute does not prohibit a court from considering the value of a lump sum social security disability award in dividing the remaining marital property. Cf. Gronquist v. Gronquist, 7 Kan. App. 2d 583, 585, 644 P.2d 1365 (1982) (value of military retirement payment may be considered, even though military retirement cannot be divided under K.S.A. 1990 Supp. 60-1610[b] [superseded on other grounds by federal and state statutes]); In re Marriage of Powell, 13 Kan. App. 2d 174, 181, 766 P.2d 827 (1988), rev. denied 244 Kan. 737 (1989) (no abuse of discretion in awarding maintenance to wife, where husband’s assets and income from social security disability sufficient to pay his basic needs and provide sizeable reserve). But cf. Hisquierdo v. Hisquierdo, 439 U.S. 572, 588-89, 59 L. Ed. 2d 1, 99 S. Ct. 802 (1979) (anti-assignment section of Railroad Retirement Act prohibits award of community property to offset spouse’s expected future benefits).
Because no single asset may be viewed independently in adjudicating a property settlement, the case is reversed and remanded for reconsideration of the property division. | [
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Brazil, J.:
The Kansas Department of Revenue (KDR) appeals from the district court’s order reinstating the driving privileges of Damian Podrebarac after an administrative suspension. The district court determined that the breath test KDR relied on to suspend Podrebarac’s license was invalid because the breath sample was collected more than two hours after Podrebarac operated a vehicle. We reverse and remand with directions.
KDR contends the district court erred in applying the two-hour limitation on test results found in K.S.A. 1990 Supp. 8-1567(a)(2) (the criminal DUI statute) to administrative suspension actions under the implied consent law, K.S.A. 8-1001 et seq. It argues that the definition of “test failure” under the implied consent statute contains no two-hour limitation, and such omission should be considered a reasoned decision by the legislature that no such limit was necessary regarding administrative suspensions.
The appellate scope of review in this case is de novo. Here, the district court granted Podrebarac relief from administrative action on the basis that the agency “erroneously interpreted or applied the law.” K.S.A. 77-621(c)(4). The interpretation of a statute and its application to the facts of any particular case is a judicial function, and this court has specifically held that agency action resulting in a driver’s license suspension is a judicial function. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 763, 758 P.2d 226, rev. denied 243 Kan. 777 (1988). When the district court grants relief on the basis of an erroneous interpretation or application of law by the agency, an appellate court should make the same review of the agency’s action as does the district court. 537721 Ontario, Inc. v. Mays, 14 Kan. App. 2d 1, 2, 780 P.2d 1126 (1989). Administrative interpretation of a statute is entitled to great weight and consideration, but the final construction of a statute rests with the courts. National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989); Amoco Production Co. v. Arnold, Director of Taxation, 213 Kan. 636, Syl. ¶¶ 4 and 5, 518 P.2d 453 (1974).
The effect of the district court’s holding is to read the two-hour limitation in the criminal DUI statute into the definition of test failure under the implied consent statute, K.S.A. 1990 Supp. 8-1013(h). This holding disregards the plain language of the provisions of the implied consent statute, which imposes no such limitation. Podrebarac contends that the two-hour limitation must be read into the definition of test failure; otherwise the implied consent statute would be unconstitutionally vague.
When construing a statute, it is this court’s duty to reconcile different statutory provisions to make them consistent, harmonious, and sensible, and to construe the statute to give effect to the legislative intent as determined from a general consideration of the entire act. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Furthermore, the constitutionality of a statute is presumed and all doubts must be resolved in favor of its validity. State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 (1980). With these principles in mind, a general consideration of the implied consent act illustrates that no two-hour limitation applies to the admissibility of test results for administrative suspension purposes, and the definition of “test failure” contained in the act is not unconstitutionally vague.
Under the implied consent statute, a police officer investigating an accident involving property damage, personal injury, or death is required to request a person to submit to an alcohol test if, based on the officer’s personal knowledge or the collective information available to an officer, the officer has “reasonable grounds to believe” the person operated or attempted to operate a vehicle while under the influence of alcohol. (Emphasis added.) K.S.A. 1990 Supp. 8-1001(b). If the person fails the test, the officer is required to prepare a certification alleging that:
“(A) There existed reasonable grounds to believe the person was operating a motor vehicle while under the influence of alcohol or drugs, or both; (B) the person had been placed under arrest, was in custody or had been involved in a motor vehicle accident or collision; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001 and amendments thereto . . . ; and (D) the result of the test showed that the person had an alcohol concentration of .10 or greater in such person’s blood or breath . . . (Emphasis added.) K.S.A. 1990 Supp. 8-1002(a)(2).
On a breath test failure, the officer must also certify that the Kansas Department of Health and ¡Environment certified the equipment used to perform the test as well as the person performing it and that the test procedures used were in accordance with that department’s requirements. K.S.A. 1990 Supp. 8-1002(a)(3). The act defines a test failure as “a person’s having results of a test administered pursuant to this act, . . . which show an alcohol concentration of .10 or greater in the person’s blood or breath.” (Emphasis added.) K.S.A. 1990 Supp. 8-1013(h).
A test failure has two distinct consequences. First, the person’s driver’s license is subject to an automatic administrative suspension by the KDR, the length of which varies depending on whether the failure is a first occurrence or a second or subsequent occurrence. K.S.A. 1990 Supp. 8-1014(b). Second, the test failure can be introduced in a criminal action against the person and constitutes “prima facie evidence” of the violation of a criminal statute or ordinance prohibiting the operation of a motor vehicle while under the influence of alcohol. K.S.A. 1990 Supp. 8-1005(b).
Based on the language used in the statutes cited above, a test may be administered and a driver’s license administratively suspended due to a test failure when the following conditions occur: (1) a law enforcement officer has reasonable grounds to believe a person was driving while intoxicated, (2) the person was arrested for DUI or was involved in an automobile accident, (3) the officer presented the person with the oral and written notices required by K.S.A. 1990 Supp. 8-1001(f)(1), and (4) the test was conducted pursuant to the proper procedures and the equipment and equipment operator are properly certified. K.S.A. 1990 Supp. 8-1002(c), (f); K.S.A. 1990 Supp. 8-1014(b). The use of the term “reasonable grounds” to believe a person operated a vehicle while intoxicated indicates the legislature’s intent to allow administrative suspensions for driving while intoxicated on less strict standards of proof than a criminal conviction for driving with a blood alcohol concentration of .10 would require.
Podrebarac contends that a person could have his license administratively suspended based on a test result when the test did not occur until long after the person last drove a vehicle. This concern is addressed by the language of the implied consent statute, which requires a law enforcement officer to have reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol. These reasonable grounds must exist before an officer can request a person to submit to a test. K.S.A. 1990 Supp. 8-1001(b). The longer the delay between the operation of the vehicle and the administration of the test, the more unreasonable the officer’s grounds become for believing the person drove while under the influence of alcohol.
Reversed and remanded with directions to reinstate the KDR’s order. | [
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Davis, J.:
The defendant, Jimmie D. Oyler, Sr., appeals his convictions on three counts of the possession of more than 200 cigarettes without the required tax indicia in violation of K.S.A. 79-3321 and K.S.A. 79-3322 and on three counts of the sale of cigarettes at retail that did not bear the Kansas tax indicia in violation of K.S.A. 79-3321 and K.S.A. 79-3322. He contends that the State of Kansas lacks jurisdiction because he is a Cherokee Indian and his smokeshop is on Indian land.
Jimmie D. Oyler, Sr., owns and operates Shawnee Jim’s Indian Country Smokeshop (Smokeshop) located in rural Johnson County, Kansas. Oyler is an enrolled member of the Cherokee Nation. The Smokeshop is on Shawnee Reserve 206, which Oyler claims is Indian land.
The Kansas Department of Revenue determined that Oyler was not eligible to possess or sell cigarettes without Kansas tax stamps and denied his request for permission to allow a wholesaler to sell untaxed cigarettes to him. In August 1988, the Kansas Director of Taxation notified Oyler that he was violating Kansas law for selling nontaxed cigarettes from his Smokeshop and ordered Oyler to cease and desist.
On December 2, 1989, Kansas Bureau of Investigation Special Agents Nathan Yonally and Richard Marchewka, working undercover, entered the defendant’s Smokeshop and purchased three cartons of cigarettes. None of the cigarette packages had Kansas tax stamps on them and Agent Yonally did not pay sales tax. The defendant did not ask the agent if he was an Indian. On January 13, 1990, and again on January 20, 1990, Agent Marchewka returned to the defendant’s Smokeshop and purchased three cartons of cigarettes each time. Again, none of the cigarette packages bore a tax stamp and the agent did not pay sales tax on either purchase. The defendant did not ask the agent if he was an Indian.
Based upon a complaint filed, a warrant for the defendant’s arrest was executed and approximately 8,888 cartons of cigarettes, money from cigarette sales, and records concerning sale of cigarettes were seized at the time of his arrest.
The defendant filed a motion to dismiss for lack of jurisdiction, asserting that the Kansas courts lack jurisdiction based on (1) the Treaty of 1831 with the Shawnee Tribe, (2) the Kansas Organic Act and the Admission Act, and (3) general federal Indian law. The trial court, without opinion, dismissed the defendant’s motion. He was tried and convicted on all counts. This appeal follows.
There are two separate yet closely related jurisdictional issues involved in this appeal: First, whether the State of Kansas has criminal jurisdiction over the defendant for selling nontax-stamped cigarettes in violation of K.S.A. 79-3321 and K.S.A. 79-3322; second, whether the State of Kansas has jurisdiction to impose its cigarette tax and sales tax on the sale of cigarettes from the defendant’s Srookeshop.
Criminal Jurisidiction
Historically, treaties between the United States and Indian tribes have conferred jurisdiction on the Indian tribal courts and on the federal courts by Congressional Act. State laws “are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.” McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 170-71, 36 L. Ed. 2d 129, 93 S. Ct. 1257 (1973). “In 1940, Congress enacted the Kansas Act, 18 U.S.C. § 3243 (1982), conferring criminal jurisdiction on the State of Kansas over state offenses committed by or against Indians on Indian reservations located within the State of Kansas.” Iowa Tribe of Indians v. State of Kan., 787 F.2d 1434, 1436 (10th Cir. 1986). 18 U.S.C. § 3243 (1988) (same as 1982) states:
“Jurisdiction is conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State.
“This section shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.”
The appellate courts of this state have held that Kansas has “jurisdiction over all crimes committed by or against Indians on Indian reservations located in Kansas” and the United States and Kansas have concurrent jurisdiction “over crimes listed in the Federal Major Crimes Act, 18 U.S.C. § 1153.” State v. Nioce, 239 Kan. 127, 131, 716 P.2d 585 (1986). When interpreting the same apparent ambiguity between the first and second paragraphs of 18 U.S.C. § 3243, the Tenth Circuit held that “the State of Kansas has jurisdiction over non-major state offenses committed by or against Indians on Indian reservations located in the State of Kansas.” Iowa Tribe of Indians v. State of Kan., 787 F.2d at 1440.
On its face, 18 U.S.C. § 3243 applies to all Indians on Indian reservations in Kansas, including restricted allotments such as the land upon which defendant’s Smokeshop is located. The defendant testified his Smokeshop was located on Shawnee Reserve 206, a restricted Indian allotment. A letter from the Bureau of Indian Affairs stated that defendant’s property was within the 200,000-acre allotment created by the Treaty of 1854. This letter was attached to the defendant’s brief in the trial court in support of his motion to dismiss. The defendant, a Cherokee Indian, was charged with violating Kansas tax laws by selling untaxed cigarettes to non-Indians from his Smokeshop located on a restricted allotment.
The defendant argues that 18 U.S.C. § 3243 does not apply to him as a member of the Loyal Shawnee, Cherokee Nation. He contends that the legislative history of 18 U.S.C. § 3243 clearly indicates that the application of the federal act applies only to four tribes of the northeast Kansas area consisting of the Iowa, Kickapoo, Sac and Fox, and Potawatomi. Defendant argues that since Congress has not acted concerning the Shawnee or Cherokee, the treaties between the Shawnee and the United States control and Kansas does not have jurisdiction over him.
The legislative history of 18 U.S.C. § 3243 upon which the defendant relies consists of a letter and memorandum dated March 16, 1940, from E.K. Burlew, Acting Secretary of the Interior. The purpose and intent of the statute was, in the absence of tribal courts, to codify the existing practice of jurisdiction in the state courts over the Indians at the request of the Indians. Burlew’s letter and memorandum do not name any specific tribes but refer to “the four Kansas tribes.” Burlew’s letter states:
“In the case of the four Kansas reservations, however, no tribal courts have existed for many years, and the Indians do not desire their reestablishment at this late date. . . . [T]he tribal councils of the four Kansas tribes have recommended the enactment of legislation authorizing its continuance by a transfer of jurisdiction to the State.” (Emphasis added.)
The memorandum states:
“On the four Indian reservations in Kansas, however, there are no tribal courts and there have been none for many years.
The four tribes located on the Kansas reservations do not desire reestablishment of the tribal courts, but have expressed a wish that the jurisdiction hitherto exercised by the State courts be continued. The tribal councils of all four tribes have gone on record in favor of a transfer of jurisdiction in criminal matters to the State.” (Emphasis added.)
By 1940, the United States Department of the Interior only recognized four tribes on Kansas reservations. The four federally recognized Indian reservations in Kansas are the Iowa, Kickapoo, Potawatomi, and Sac and Fox. The Confederation of American Indians, Indian Reservations: A State and Federal Handbook, pp. 91-96 (1986). The Shawnee are not federally recognized in Kansas. In 1869, the Shawnee were incorporated by the Cherokee Nation, agreed to abandon their tribal organization, and were relocated in Oklahoma. Agreement between Shawnee and Cherokee, June 9, 1869.
The interpretation of a statute is a question of law and it is the function of this court to interpret a statute to give it the effect intended by the legislature. “It is a fundamental rule of statutory construction to which all other rules are subordinate that the intent of the legislature governs when that intent can be ascertained.” NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989).
We believe that the legislative history, together with the wording of 18 U.S.C. § 3243, indicates that Congress was acting in Kansas on behalf of all known and recognized Indians in the state. We conclude that the intent of Congress in enacting 18 U.S.C. § 3243 was to confer criminal jurisdiction on the State of Kansas over all Indians in Kansas. 18 U.S.C. § 3243 confers criminal jurisdiction on the State of Kansas over the defendant. We conclude that, based upon 18 U.S.C. § 3243, defendant is subject to the provisions of K.S.A. 79-3321 and K.S.A. 79-3322.
Kansas Jurisdiction to Impose Cigarette Tax and Sales Tax on the Sale of Cigarettes from Defendant’s Smokeshop
The State does not contend that it has the power to tax on-reservation sales to Indians, but rather contends that Kansas has the power to tax sales to non-Indians.
In Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 48 L. Ed. 2d 96, 96 S. Ct. 1634 (1976), deputy sheriffs arrested two Indians operating a smokeshop on a reservation for failure to possess a cigarette retailer’s license and for selling nontax-stamped cigarettes. In a civil action seeking declaratory and injunctive relief, the court interpreted Montana’s taxing authority in light of 28 U.S.C. § 1341. The Supreme Court held that “the cigarette sales tax as applied to on-reservation sales by Indians to non-Indians conflict[s] with the federal statutes. that provide the basis for decision with respect to such impositions” but that when “on-reservation ‘smokeshops’ sell to non-Indians upon whom the State has validly imposed a sales tax with respect to the article sold, the State may require the Indian proprietor simply to add the tax to the sales price and thereby aid the State’s collection and enforcement of the tax.” 425 U.S. at 464-65.
In Washington v. Confederated Tribes, 447 U.S. 134, 65 L. Ed. 2d 10, 100 S. Ct. 2069, reh. denied 448 U.S. 911, 65 L. Ed. 2d 1172, 1013 S. Ct. 25 (1980), certain Indian tribes sought declaratory and injunctive relief from Washington’s attempt to impose its cigarette excise tax and sales tax to nontribal members at on-reservation tobacco outlets. The court held that a cigarette tax imposed by the tribe on non-tribal purchases was valid but did not prevent the state from imposing its own tax. 447 U.S. at 152-57. The court affirmed and extended Moe to apply to purchases by non-tribal purchasers as well as non-Indian purchasers. 447 U.S at 160-62. “Principles of federal Indian law ... do not authorize Indian tribes to market an exemption from state taxation to persons who would normally do their business elsewhere.” 447 U.S. at 136. The State of Kansas, therefore, has jurisdiction to tax the sale of cigarettes sold on reservation land to non-tribal members and non-Indians.
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Rulon, J.:
White Lakes Plaza Associates, Ltd., (White Lakes), defendant, appeals a district court judgment ordering that Marianna V. Temple, plaintiff, be made a limited partner in that partnership. We affirm in part and reverse in part.
The important facts are as follows:
On February 1, 1977, John Temple became a limited partner in White Lakes, a Kansas limited partnership formed for the purpose of operating the White Lakes Plaza apartment complex in Topeka, Kansas. The 1977 limited partnership agreement was a reorganization of a limited partnership organized in 1973. John’s interest in the partnership’s net income and losses was 5%. His wife Marianna signed the partnership agreement, consenting to its terms.
The partnership agreement gives the limited partners no authority to act for or bind the partnership. The agreement further provides that all limited partners and the genera), partner must consent to (1) a termination of the partnership other than in accordance with the agreement; (2) amendment of the agreement; and (3) sale of all or substantially all of the partnership’s assets.
The certificate of limited partnership contains the following provision:
“A Limited Partner may sell, assign or transfer his limited partnership interest; however, any such purchaser shall only be entitled to be admitted as a Substituted Limited Partner if the Assignor so designates his intention in the instrument of assignment, and the General Partner consents thereto, the denial or granting of which shall be at the sole discretion of the General Partner. The General Partner does not have the right to admit additional Limited Partners without the consent of the Limited Partners.”
The agreement also contains the following provision regarding transfer of partnership interests:
“13. RESTRICTIONS ON TRANSFER OF PARTNERSHIP INTERESTS.
“A. Transfers by General Partner. The General Partner shall not sell, transfer or assign his entire interest as a General Partner in the Partnership, except to a corporation controlled by such General Partner and to members of his immediate family, without the consent of all of the Partners holding seventy-five percent (75%) in interest of the Partnership, unless such sale is to one or more then existing General Partner. No consent is required for a sale, transfer or assignment of a portion of the General Partner’s interest or [sic] to a corporation controlled by the General Partner and to members of his immediate family.
“B. Transfers by a Limited Partner. A Limited Partner shall be entitled to sell, assign, transfer, or convey all or a portion of the interest owned by him (‘Assignor’), and such purchaser (‘Assignee’) shall be entitled to be admitted to the Partnership as a ‘Substituted Limited Partner’ only upon the performance or occurrence of each of the following events:
“(1) The Assignor shall send a written notice to the General Partner setting forth the name and address of the proposed Assignee, the percentage interest being transferred and the date such transfer is to become effective (which must be on the last day of the calendar month during which the transfer becomes effective) together with a check made payable to the Partnership in an amount specified by the General Partner to cover or apply to the costs described in Subparagraph (6) hereof;
“(2) The Assignee shall have furnished to the General Partner, on a form approved by the General Partner, such information concerning the Assignee’s residence, financial capabilities and investment experience as may be requested by the General Partner;
“(3) The General Partner shall approve of the form and content of the instrument of assignment;
“(4) The Assignor and the Assignee or Assignees executing and acknowledging such other instrument or instruments as the General Partner may deem necessary or desirable to effectuate such admission;
“(5) The written acceptance and adoption by the Assignee or Assignees of all of the terms and provisions of this Agreement, as the same may have been amended;
“(6) The Assignor paying or obligating himself to pay, as the General Partner may determine, all reasonable expenses incurred in connection with such admission, including, but not limited to, legal fees and costs (which costs may include, for example, the cost of filing an amendment of the Certificate of Limited Partnership);
“(7) The filing with the Partnership, if required by the General Partner, of such proof of the age of the Assignee as the General Partner may deem necessary. In no event shall a limited partnership interest, or any portion thereof, be assigned or transferred to a minor or incompetent. Any such attempted assignment or transfer shall be null, void and ineffectual;
“(8) The Assignor shall have evidenced an intent in the instrument of assignment that the Assignee be admitted to the Partnership as a Substituted Limited Partner;
“(9) The General Partner shall have consented in writing to the admission of the Assignee as a Substituted Limited Partner, the granting or denial of which shall be within the sole and absolute discretion of the General Partner, except that should the Assignee be a trust of which the Assignor is the sole or controlling trustee, and the beneficiaries are members of the Assignor’s immediate family, the General Partner shall consent to such admission;
“(10) The Assignor shall have furnished the Partnership and the General Partner with an opinion of counsel, in form and content satisfactory to the General Partner, that such transfer is exempt from registration under the Federal Securities Act of 1933.
“C. Restrictions on Assignees. An Assignee of an interest in this Partnership who does not become a Substituted Limited Partner, has no right to require any information or account of the partnership transactions, to inspect the partnership books or to vote on any of the matters as to which a Limited Partner would be entitled to vote under this Agreement. An Assignee shall only be entitled to receive the share of the profits or other compensation by way of income, or the return of his contributions, to which his Assignor would otherwise be entitled.”
According to subparagraph B(9), the general partner may within his sole and absolute discretion deny admission of an assignee as a substituted limited partner, even if the assignor and assignee have fulfilled the requirements of subparagraphs B(l) through B(8). Paragraph C provides, however, that the assignee is still entitled to the share of profits or the return of contributions to which the assignor would be entitled. This restriction on a limited partner’s transfer of his or her interest also appears in the certificate of limited partnership.
On January 23, 1986, a decree was filed by a Florida court dissolving the marriage of John and Marianna. As part of the property settlement, the Florida court awarded Marianna “100% of the interest of [John] in the . . . limited partnership]] known as . . . White Lakes Plaza.” Marianna was to assume “full financial. responsibility” for the partnership interest as of December 17, 1985. The Florida court then ordered that John, “on or before midnight, January 16, 1986, transfer to [Marianna], by such appropriate documents as is required, one hundred percent of his interest in” White Lakes Plaza Associates, Ltd. “All of the income . . . and all of the expenses related thereto shall be owned by and shall be the responsibility of [Marianna] from and after December 17, 1985.”
In late January 1986, John executed an assignment of his partnership interest to Marianna. The assignment provided that John intended Marianna to become a substituted limited partner. Marianna, however, never signed the assignment.
In a letter to general partner Fritz Duda, John acknowledged that Duda had told him the partnership interest transfer would not be allowed “because of the uniqueness of this partnership and particularly the unanimous vote of the limited partners needed for ultimate sale.” John also acknowledged that he and his attorney had suggested a substitution of assets to the Florida court, but that Marianna’s attorney had rejected the offer. He then concluded the letter by asking for Duda’s reconsideration of the matter.
Duda’s reply to John contained the following explanation of his refusal to approve Marianna as a substituted limited partner:
“I have discussed your request with our counsel and two of the limited partners. As you know, this partnership was initiated and established by a small group of real estate professionals. Many years ago, by virtue of the divorce of one of the partners, we were confronted by untold problems associated with the partner’s spouse and her counsel. Moreover, our partnership document requires 100% approval of certain matters by the limited partners. As general partner, we have assumed substantial liability over the years and have a duty to the remaining limited partners to exercise sound judgment in the admission of a new or different partner. Because of the fact that this [is] a small and somewhat unique professional group, I do not believe it is in the interest of the partnership to admit a spouse as a substituted limited partner and will decline to do so.”
After further correspondence among Marianna, John, and Duda, Marianna ultimately filed suit in Shawnee District Court. She alleged that due to the refusal of Duda and the partnership to recognize and effectuate John’s assignment of his interest to her, she suffered injustice and economic injury and loss. Marianna additionally alleged that Duda’s actions, as unauthorized interference with her ownership interest in the partnership, were conversion. She requested as relief an accounting of all money transferred from the partnership to John from December 17, 1985, to the present; an order compelling Duda as general partner to approve and effectuate the court-ordered assignment of John’s partnership interest; damages of not less than $10,000 against Duda for conversion; and attorney fees and costs.
During the bench trial, Marianna testified that she wished to become a limited partner in White Lakes for advantageous treatment under the tax laws. She stated the partnership was a passive income generator that she could use to offset passive losses. On cross-examination, Marianna agreed she never signed an assignment of John’s interest and that she did sign and consent to the amended partnership agreement.
John testified that he attempted to obtain Marianna’s signature on the assignment, but he received no response when attempting to contact her. He further testified it was his understanding the Florida court did not have a copy of the limited partnership agreement during the divorce proceeding.
During his testimony, Duda affirmed the reasons given in his correspondence with John for not approving Marianna as a substituted limited partner. Additionally, he testified that from her behavior in the divorce proceeding, her filing of the instant litigation, and his discussions with John, he believed Marianna “would be litigious, would be conceivably an obstructionist.” Duda further testified Marianna had not supplied all information required under section 13 of the partnership agreement for a transfer of interest, nor had he requested it; however, even if section 13 were complied with, he still would not approve her as a substituted limited partner. Duda said all distributions or earnings on John’s 5% interest in the partnership were being held in an interest-bearing account pending resolution of litigation.
The district court essentially balanced honoring the Florida property award under full faith and credit against preservation of the integrity of a Kansas limited partnership, and found “no overwhelming legitimate reason exists” not to give the property award full faith and credit. The district court specifically stated “[t]he limited partnership will suffer no irreparable harm by reason of admission of Marianna Temple as an investor” and ordered Marianna be made a substituted limited partner without having “to comply with the specific requirements of the limited partnership agreement and the Kansas Limited Partnership Act.” Additionally, the district court ordered all funds held in escrow paid to Marianna and all costs to be assessed against the defendants.
Before us, White Lakes argues that the partnership certificate and agreement, as permitted by Kansas statute, place restrictions on the admission of substituted limited partners. Consistent with his power granted by the partnership agreement, Duda as general partner denied Marianna admission as a substituted limited partner, properly exercising his discretion. White Lakes further contends that in ordering Marianna to be given partner status, the district court improperly substituted its discretion for that of general partner Duda.
Marianna essentially argues the restrictions on partnership admission in the partnership agreement are not applicable to involuntary transfers of partnership interests. She cites cases where courts have held restrictions on corporate stock transfer are inapplicable to involuntary transfers.
In resolving this issue, the applicable statutory framework for our review is the Kansas Revised Uniform Limited Partnership Act (RULPA), K.S.A. 56-1a101 et seq. Although White Lakes was formed when the Kansas Uniform Limited Partnership Act, K.S.A. 56-122 et seq., was in effect, all Kansas limited partnerships have been governed by RULPA since January 1, 1986. K.S.A. 56-1a603(b).
RULPA permits the assignment of a partnership interest as follows:
“Assignment of partnership interest. Unless otherwise provided in the partnership agreement, a partnership interest is assignable in whole or in part. An assignment of a partnership interest does not dissolve a limited partnership or entitle the assignee to become or to exercise any rights of a partner. An assignment entitles the assignee to share in such profits and losses, to receive such distribution or distributions, and to receive such allocation of income, gain, loss, deduction or credit or similar item to which the assignor was entitled, to the extent assigned. A partner ceases to be a partner upon assignment of all the partner’s partnership interest.” K.S.A. 1990 Supp. 56-1a402.
We note under the above statute that the. assignee does not become a partner by virtue of the assignment, but only acquires the right to receive the assignor’s share of profits, losses, distributions, income, gain, loss, deduction, or credit.
An assignee, however, may become a limited partner under the provisions of K.S.A. 56-1a404, which provides:
“(a) An assignee of a partnership interest, including an assignee of a general partner, may become a -limited partner if and to the extent that:
(1) The assignor gives the assignee that right in accordance with authority described in the certificate of limited partnership; or
(2) all other partners consent.
(b) An assignee who has become a limited' partner has, to the extent assigned, the rights and powers and is subject to the restrictions and liabilities of a limited partner under the partnership agreement and this act. An assignee who becomes a limited partner also is liable for the obligations of the assignor to make and return contributions as provided in K.S.A. 56-1a301 through 56-1a304 and 56-1a351 through 56-1a358. However, the assignee is not obligated for liabilities unknown to the assignee at the time the assignee became- a .limited partner and which could not be ascertained from the certificate of limited partnership or the partnership agreement.
(c) If an assignee of a partnership interest becomes a limited partner, the assignor is not released from the assignor’s liability to the limited partnership under K.S.A. 56-1a157 and 56-1a302.”
K.S.A. 1990 Supp, 56-1a201 provides:
“Admission of additional-limited partners, (a) A person becomes a limited •partner:. ■
(1) At the time the limited partnership is formed; or
(2) at any later time specified in the records of the limited partnership for becoming a limited partner.
(b) After the filing of a limited partnership’s initial certificate of limited partnership, a person may be admitted as an additional limited partner.
(1) In the case of a person acquiring a partnership interest directly from the limited partnership, upon compliance with the partnership agreement or, if the partnership agreement does not so provide, upon the written consent of all partners; and
(2) in the case of an assignee of a partnership interest of a partner who has the power, as provided in K.S.A. 56-1a404 and amendments thereto, to grant the assignee the right to become a limited partner, upon the exercise of that power and compliance with any conditions limiting the grant or exercise of the power.”
Both of the above statutes provide that an assignor may make the assignee a limited partner only if the assignor is given that power in the certificate of limited partnership.
After reviewing White Lakes’ certificate of limited partnership, it is clear to us that while a limited partner may sell, assign, or transfer his or her interest, the limited partner alone is not empowered to admit the assignee as a substituted limited partner. While the assignor must designate his or her intention that the asignee become a substituted limited partner, the consent of the general partner is also necessary. This consent is placed within the sole discretion of the general partner.
RULPA does not prohibit the grant of such authority to a general partner. See K.S.A. 56-1a253(a).
Marianna argues that the above RULPA provisions allowing for restrictions on the admission of substituted limited partners should not be applied to a partner’s involuntary assignment of his or her interest, such as that ordered by a divorce decree. Any such ruling, however, would be contrary to principles developed in general partnership law. The Uniform Partnership Act and case law developed thereunder have been applied to limited partnerships. 59A Am. Jur. 2d, Partnerships § 1235. Additionally, RULPA itself provides that for cases not covered by its provisions, the Kansas Uniform Partnership Act (UPA), K.S.A. 56-301 et seq., should be applied. K.S.A. 56-1a604.
A distinguishing feature of a partnership is the rule of delectus personae or choice of the person. A partnership is based on the intent of all parties involved. 2 Bromberg and Ribstein on Part nership § 6.03(d) (1988). Expressed another way, “partners should be able to choose their associates.” 1 Bromberg and Ribstein on Partnership § 3.05(c)(4) (1988).
The Uniform Partnership Act recognizes the principle of delectus personae by distinguishing a partner’s interest in the partnership and a -partner’s right to participate in management. See K.S.A. 56-324. A partner’s interest in the partnership is his or her share of the profits and surplus, K.S.A. 56-326. In a limited partnership, the partner’s interest is a share of the profits and losses and the right to receive distributions of partnership assets. K.S.A. 1990 Supp. 56-1a101(j). Under the specific terms of the limited partnership agreement in this case, the assignee of a partner’s interest in the partnership is not entitled to participate in the management of the partnership or to obtain information about the partnership or its books, but is entitled only to the profits to which the assignor would be entitled. See K.S.A. 56-327(a); K.S.A. 1990 Supp. 56-1a402. “The assignee is plainly not a partner.” 1 Bromberg and Ribstein on Partnership § 3.05(c)(3) (1988).
To support her argument, Marianna cites cases where courts have held that restrictions on transfer of corporate stock apply only to voluntary transfers: Vogel v. Melish, 31 Ill. 2d 620, 203 N.E.2d 411 (1964); Castonguay v. Castonguay, 306 N.W.2d 143 (Minn. 1981); Witte v. Beverly Lakes Inv. Co., 715 S.W.2d 286 (Mo. App. 1986). The basis of these holdings is the rule of strict construction of restrictions on corporate stock transfers; if the restriction is not expressly applicable to transfers by operation of law or which are otherwise involuntary a court will not interpret it as applicable. Vogel, 31 Ill. 2d at 625, Castonguay, 306 N.W.2d at 146; Witte, 715 S.W.2d at 292. The two cases Marianna cites where the courts held transfers of corporate stock pursuant to a divorce decree valid despite restriction upon transfer appear to be based on community property principles: Messersmith v. Messersmith, 229 La. 495, 86 So. 2d 169 (1956), and Earthman's Inc. v. Earthman, 526 S.W.2d 192 (Tex. Civ. App. 1975). The court in Messersmith stated that the husband and wife each acquired a half interest in the stock which vested immediately upon its acquisition. 229 La. at 507-09. The court in Earthman's cited and quoted Messersmith. 526 S.W.2d at 202.
Corporate law has been applied to limited partnerships. 59A Am. Jur. 2d, Partnership § 1236. However, application of the above cases dealing with transfers of corporate stock to allow the assignee of a limited partnership interest under a divorce decree to become a substituted limited partner would unfavorably affect the distinctive nature of the partnership form of business association. The remaining partners in the limited partnership should not have an individual forced on them as a partner. Furthermore, the ability of a limited partner in White Lakes to transfer or assign his or her interest is not being contested by the partnership. Only the right of Marianna, an assignee, to become a limited partner merely by virtue of the assignment is being challenged.
We agree the nature of a limited partner’s role in the management of the partnership’s business differs from that of a general partner in either a general or limited partnership. However, in the instant case, White Lakes is composed of a comparatively small group of limited partners who, along with the general partner, are experienced in the business of the partnership — real estate investment and management. Under the partnership agreement, each limited partner has the authority to veto a decision “affecting the basic structure of the [p]artnership“: termination, amendment of the agreement, and sale of assets. It would be contrary to the principles of partnership law to require White Lakes to accept as a substituted limited partner someone who has been rejected under the partnership agreement’s provisions for becoming a substituted limited partner. We believe Marianna is an assignee of John’s interest and therefore has the rights due an assignee under the agreement, but she cannot be made a substituted limited partner outside of the agreement or in contravention of RULPA.
Consistent with RULPA, the partnership agreement, and the divorce decree, John could and did transfer his share of profits and losses and the right to receive distributions. As an assignee, Marianna is also entitled to receive such allocation of income, gain, loss, deduction, or credit to which John was entitled. John, having transferred all his interest, ceased to be a partner. K.S.A. 1990 Supp. 56-1a402.
Finally, Marianna discusses two cases which she claims support her admission as a substituted limited partner: Jones v. Way, 78 Kan. 535, 97 Pac. 437 (1908), and Burnet v. Leininger, 285 U.S. 136, 76 L. Ed. 665, 52 S. Ct. 345 (1932). Neither is persuasive. While the Jones court held that the partners owned purported partnership realty as tenants in common and therefore one partner could transfer his interest in the realty without the consent of the other partners, it specifically found the partnership did not conduct any business. 78 Kan. at 537. White Lakes, in contrast, is actively conducting the business for which it was formed. In Leininger, the United States Supreme Court was concerned with whether a wife was validly made a partner in a partnership of which her husband was a member when he transferred half of his interest to her for favorable treatment under the tax laws. 285 U.S. at 138-39. The Court found she was not. 285 U.S. at 140-41. Leininger does not concern the issue presented in the instant case.
We conclude Marianna is an assignee of John’s interest, but not a substituted limited partner in White Lakes Plaza Associates, Ltd.
We affirm that portion of the district court judgment which awarded Marianna the earnings from the assigned partnership interest being held in escrow, but reverse the portion of the judgment making Marianna a substituted limited partner in the partnership. | [
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Russell, J.:
Harold Sanstra appeals the district court’s order affirming the decision of the Kansas Civil Service Board which terminated his employment with the Kansas Highway Patrol and Capitol Area Security Patrol.
Sanstra was an employee of the Capitol Area Security Patrol. On July 26, 1988, he reported for work at 7:00 a.m. His appearance and behavior that day were different, but not particularly disruptive. His eyes were watery and bloodshot, and his breath smelled of alcohol. His speech was louder than normal, although his conversation was coherent. He was seen patting a female employee on her back. Despite his unusual behavior, Sanstra was able to appropriately handle two incidents of unauthorized persons in the building, and his superior agreed his behavior did not have a negative impact on the agency. However, a breath test performed around noon showed he had a blood alcohol concentration of .173. It was later established that there had been a party at Sanstra’s home the night before which had lasted until about 3:30 a.m.
Sanstra was dismissed and he appealed to the Kansas Civil Service Board, which upheld the dismissal. He then appealed to the district court, which affirmed the dismissal. Upon review, we affirm the decision of the district court and the Civil Service Board.
Our scope of review of an administrative decision is governed by K.S.A. 77-621. K.S.A. 75-2929h provides that orders of the civil service board are subject to judicial review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.
This appeal involves interpretation of several subsections of the Kansas Civil Service Act, K.S.A. 75-2925 et seq.
K.S.A. 75-2949 provides generally the method and reasons for dismissing a civil service employee. The statute permits the dismissal or demotion of an employee “when the appointing authority considers that the good of the service will be served thereby.” K.S.A. 75-2949(a).
A predecessor to K.S.A. 75-2949 was interpreted in Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 562 P.2d 117 (1977). In that case, Betty Swezey filled out false patient records purporting to show that a co-worker was a patient at the Topeka State Hospital. The false papers were intended as a joke, but somehow they fell into the hands of Swezey’s supervisor, who terminated her employment “for the good of the service” because of her practical joke. On appeal, the district court reversed and this court affirmed the district court, holding:
“Legal cause for dismissal exists if the facts disclose the employee’s conduct is of a substantial nature and directly impairs the efficiency of the public service, but there must be a real and substantial relation between the employee’s conduct and the efficient operation of the public service; otherwise, legal cause is not present.” 1 Kan. App. 2d at 100.
Sanstra concedes his blood alcohol concentration was .173. However, he contends his intoxication did not affect his ability to perform his job that day. Thus, he argues his condition did not directly impair the efficiency of the public service and, therefore, he could not lawfully be dismissed.
Since the decision was filed in Swezey, the legislature has enacted new sections in chapter 75 that modify the effect of Swezey. K.S.A. 75-2949d(a) provides that an employee may be dismissed because of “personal conduct detrimental to the state service.” K.S.A. 75-2949f lists nineteen specific examples of “personal conduct detrimental to the state service.” Included is “(m) being under the influence of alcohol or drugs while on the job.”
Sanstra argues that 75-2949d and 75-2949f must be read in conjunction with the Swezey case. He argues that Swezey provides an interpretive overlay that requires that the employee’s intoxication “directly impair the efficiency of the service” before he or she can be fired. On the other hand, the State argues the existence of any of the factors listed in 75-2949f is legal cause per se and requires no finding of direct impairment.
We believe that the correct interpretation of 75-2949d and 75-2949f supports the State’s argument.
“The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs .... [Citations omitted.] In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citations omitted.] Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect.” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
The logical interpretation of 79-2949f(m) is that the legislature intended that intoxication on the job be sufficient, in and of itself, for discipline under 75-2949. The fact that 79-2949f was enacted after the Swezey decision indicates that the legislature intended to establish a category of conduct that is per se cause for discipline, obviating the need for the Board to find that there was direct impairment of the public service. All of the activities listed in 75-2949f would have been grounds for dismissal if they directly impaired the public service, as required by Swezey. Therefore, the enactment of 75-2949f would have been superfluous had the legislature not intended to make these activities per se grounds for discipline. Of course, any activities falling outside the listing of enumerated circumstances found in 75-2949Í could still serve as a ground for dismissal provided there is a showing of direct impairment on the service as required by Swezey.
Sanstra also complains that the Civil Service Board which heard the appeal of his dismissal was not properly constituted. A hearing was held before two board members and they reported their findings to a third board member. The three members then made the decision to uphold Sanstra’s dismissal.
Sanstra argues all three board members were required to be present to hear his appeal. He bases his argument on K.S.A. 75-2929b(c), which provides: “Meetings of the board shall be open to the public and no meeting or hearing of the board shall be held unless at least three members of the board are present.” Sanstra’s argument ignores K.S.A. 75-2929b(b), which provides:
“The board shall organize annually by electing one of its members as chairperson and one as vice-chairperson. The board shall meet regularly at least once each calendar quarter and special meetings may be called by the chairperson or by a majority of the board. A quorum of the board shall consist of three members. No action may be taken by the board without the affirmative vote of at least three members. In the holding of hearings of appeals by employees or appointing authorities pursuant to the Kansas civil service act, the board may delegate to one or more of its members the authority to serve as a hearing examiner for such a hearing, but action upon any such appeal shall require the concurrence of at least three members of the board.” (Emphasis added.)
In reconciling the conflict between the two subsections, we are mindful of the familiar rules of statutory construction previously stated, as well as the one set forth in Kansas Racing Management, Inc. v. Kansas Racing Commn, 244 Kan. 343, 353, 770 P.2d 423 (1989):
“It is the duty of the court to reconcile different statutory provisions so as to make them consistent, harmonious, and sensible. [Citations omitted.] General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]”
Applying these rules of construction to the statute in question, we hold that the legislature intended to differentiate between “meetings” and “hearings of appeals.” “Meetings” must be attended by at least three members of the board in order for any business to be conducted. The specific, specialized type of meetings held to conduct “hearings of appeals,” however, can be held with only one board member present. That board member, designated to act as a hearing examiner, must then report to other board members, at least three of whom must agree on the appropriateness of the disciplinary action in question.
The statute was satisfied by holding the hearing in the presence of two board members, who later obtained the concurrence of a third member to uphold Sanstra’s dismissal.
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Brazil, J.:
Douglas Pichón appeals his conviction on one count of aggravated escape from custody. K.S.A. 21-3810. Pichón contends the district court abused its discretion when it refused to allow him to call certain witnesses who he contends were necessary to prove his defense of compulsion. Pichón also contends there was insufficient evidence to show he was guilty of the crime charged. We affirm.
Pichón, a convicted felon, was serving his sentence at the Kansas Correctional Institution at Lansing (KCIL) at the time of the incident in question. Pichón and a group of other inmates were transported to the Leavenworth Community Center to participate in a men’s city league volleyball game. Pichón testified that, when the van arrived at the community center, he was the last person to get out. Just as he was getting ready to go into the building, he heard someone yell, “Hey, Winfrey.” Pichón testified that, although he was charged under the name of Douglas Pichón, Pichón is an assumed name, aud his real name is William Winfrey. A court services officer verified that, at birth, the defendant’s name was William Daniel Winfrey, Jr.; although the defendant began using the name of Douglas Pichón in 1985, his name has never been legally changed.
Pichón testified that, when he looked around, he saw a person he recognized as Tony DeWitt accompanied by another man. When Pichón saw DeWitt, he ran away because he believed DeWitt was there to hurt him. Pichón testified that DeWitt did not say anything else to him, and there was no testimony of any menacing or threatening behavior toward him by DeWitt before he ran away. When he started to run, Pichón said he heard the man with DeWitt say, “Hey, Tony, get in the car and we will get him,” and DeWitt did chase Pichón. Pichón testified that he ran about two blocks and then ducked into an alley and hid in a dumpster for a couple of hours.
Based upon a tip from an informant, Pichón was apprehended in Kansas City, Kansas, the following cay by agents of the Kansas Bureau of Investigation. When these agents first accosted Pichón, he did not admit he was an escapee but instead told them a story about being from Oregon. At trial, Pichón admitted that, once he had escaped the immediate threat, he did not try to return himself to the authorities, and that his intent was to stay out of custody as long as possible.
Pichón raised the defense of compulsion. He testified at length concerning his belief that, if he had not run away, he risked death or great bodily harm at the hands of DeWitt. Pichón testified that DeWitt had been his partner in an aggravated robbery in Wichita in 1985 and that he had testified against DeWitt at trial. Pichón stated that, in November 1986, he had received two notes signed “San Diego,” DeWitt’s street name. His testimony did not indicate whether these notes involved some threat. One week after the second note, Pichón said his cell was “ftrebombed,” and Pichón apparently believed DeWitt was responsible for this. After this incident, Pichón was transferred to protective custody for 14 months. During this time, Pichón talked with his brother on the phone, and his brother told him that DeWitt “hasn’t forgotten about” him.
Pichón stated that, when he left protective custody, he was transferred to a medium security facility at the Kansas State Penitentiary (KSP) where an inmate, Bobby Berks, threatened him. Pichón says that, although Berks never said so, there was an “insinuation” that he had been paid by DeWitt to threaten him. Pichón reported the incident and was then transferred to an outside dormitory. He said Berks was there also, and Berks again threatened him, this time with a screwdriver. Pichón voluntarily checked into protective custody again, and shortly thereafter he was sent to KCIL. These last episodes with Berks apparently occurred over two months before Pichon’s escape.
After giving his own testimony at trial, Pichón sought to call four witnesses who he said would corroborate his testimony concerning the reasonableness of his fear of imminent harm by DeWitt at the community center. The State argued such testimony was irrelevant, its objection was sustained by the court, and the four proposed witnesses were not allowed to testify.
As his first issue, Pichón argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution and under section 10 of the Kansas Bill of Rights, to have compulsory process of witnesses and to present a complete defense, were violated by the trial court’s decision to exclude the testimony of his four proposed witnesses.
Under the due process clause of the Fourteenth Amendment, criminal defendants must be afforded a “meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984). The Sixth and Fourteenth Amendments also guarantee the right of an accused to have compulsory process for obtaining witnesses in his favor and the right to present his own witnesses to establish a defense. Washington v. Texas, 388 U.S. 14, 18-19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967). While these rights protect the accused from the State’s arbitrary denial of his right to put witnesses on the stand to testify in his behalf, they do not prevent the exclusion of testimony that is irrelevant or immaterial. See 388 U.S. at 23.
Pichón sought to introduce the testimony of four proposed witnesses and proffered that he believed their testimony would be relevant on the following matters: (1) a department of corrections officer in charge of internal investigations, to be questioned concerning the firebombing of Pichon’s cell, the notes which Pichón received and turned in prior to the firebombing, the contents of an affidavit Pichón filed against Bobby Berks, and Pichon’s state of mind concerning these events during incarceration; (2) a KSP inmate, as an expert witness concerning the availability of weapons and vulnerability to attack in prison; (3) a department of corrections unit team counselor, to verify that Pichón had been in protective custody and to testify concerning lack of safety of inmates even while in protective custody; and (4) Pichon’s cellmate while in protective custody, to verify that Pichón had expressed fear of DeWitt and that someone might try to kill him. Pichón indicates that the relevance of this testimony was to bolster his compulsion defense.
The defense of compulsion is set forth at K.S.A. 21-3209. That statute states:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat,”
Our Supreme Court has further stated:
“In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. [Citation omit ted.] In addition, the compulsion must be continuous and there must be no reasonable opportunity to escape the compulsion without committing the crime.” State v. Dunn, 243 Kan. 414, 421, 758 P.2d 718 (1988).
The State, in objecting to admission of the proposed testimony, argued that it was irrelevant and too remote to the issue of compulsion. The State reasoned that the defense of compulsion required a showing of some imminent or present threat, and that events occurring months and years before could not bear on any immediate threat that could have justified Pichon’s escape from custody.
Pichón argues the statute sets up a subjective standard of reasonableness of belief: what the defendant “reasonably believes” to be a threat of death or great bodily harm. Therefore, Pichón says, the testimony was relevant to show why, despite the fact DeWitt made no menacing statements or gestures, Pichón nevertheless had reason to fear for his life. Pichón argues that corroboration of his own testimony was necessary because of his status as a prison inmate.
The trial court sustained the State’s objections, expressly relying on the authority of State v. Milum, 213 Kan. 581, 516 P.2d 984 (1973). In Milum, the defendant sought to support his compulsion defense to a charge of escape from custody by introducing testimony concerning four alleged threats to his life while in prison. These threats had been made on various occasions prior to the defendant’s escape from custody, some up to two months before. The defendant claimed he had escaped because he expected to be killed at any time. The trial court excluded the evidence and refused to instruct the jury on compulsion, finding that “the threats, if such there were, were made on several different occasions and thus could not have met the statutory requirement of imminence. At best the threats were aimed at some indefinite time in the future.” 213 Kan. at 583.
Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules. State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986). Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). All relevant evidence is admissible unless excluded by statute. State v. Holt, 228 Kan. 16, 23, 612 P.2d 570 (1980). The determination of relevance is a matter of logic and experience, not a matter of law. State v. Nemechek, 223 Kan. 766, 769, 576 P.2d 682 (1978).
Evidence is rejected for remoteness “ ‘[w]hen the fact or facts proposed to be established as a foundation from which indirect evidence may be drawn, by way of inference, have not a visible, plain, or necessary connection with the proposition eventually to be proved.’ ” State v. Griffin, 246 Kan. 320, 325, 787 P.2d 701 (1990). “The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated.” 246 Kan. at 326.
Pichón argues that Milum should be distinguished because, unlike the defendant in Milum, Pichón was not seeking to use prior threats of future harm as the sole source of his compulsion. Instead, he offered evidence of those prior events to show the reasonableness of his belief that the presence of DeWitt at the community center presented an imminent threat of death or great bodily harm at the time of his escape. We agree with Pichón that this case can be distinguished from Milum, and that at least some of the testimony he offered would be relevant if he was entitled to the compulsion defense.
However, we conclude that Pichón is not entitled to a compulsion defense. Although we have been unable to find any reported cases in Kansas involving this particular question, many jurisdictions apply a test which restricts the compulsion defense in cases of prison escape. Wells v. State, 687 P.2d 346 (Alaska App. 1984). The test which is usually applied is derived from People v. Lovercamp, 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110 (1974), and holds that the defense is available in escape cases only when the following conditions all exist:
“(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
“(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory;
“(3) There is no time or opportunity to resort to the courts;
“(4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and
“(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”
This test, although said to embody the common law, is applied even in states which, like Kansas, have codified their compulsion defense. See Com. v. Stanley, 498 Pa. 326, 446 A. 2d 583 (1982).
Neither party cited Lovercamp in its brief nor was prepared to address it at oral argument. Consequently, the parties were given an opportunity to submit supplemental briefs. We have received and reviewed Pichon’s brief. The State did not file one.
In his supplemental brief, Pichón cites a Michigan case, People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975), wherein the Michigan Supreme Court refused to follow Lovercamp. In Lovercamp, California held that the defense of necessity (for all purposes essentially similar to our statutory defense of compulsion) was not available unless five specified conditions were first met. The fifth of those conditions was that “[t]he prisoner immediately reports to the proper authorities when he has obtained a position of safety from the immediate threat.” 43 Cal. App. 3d at 832. Michigan, in People v. Luther, 394 Mich, at 623-24, treats the Lovercamp conditions as relevant for jury consideration as to the weight and credibility of a defendant’s claim that he escaped out of necessity, but not as essential conditions that must be satisfied in order to assert the defense.
As the Michigan case indicates, there is a split of authorities concerning application of the Lovercamp conditions. Two states agree with the Michigan position. See Commonwealth v. O’Malley, 14 Mass. App. 314, 319-21, 439 N.E.2d 832 (1982); Esquibel v. State, 91 N.M. 498, 501, 576 P.2d 1129 (1978).
The great majority of states, however, follow Lovercamp in requiring a defendant to show the five (or four in some states) Lovercamp conditions have been met before the defense of necessity (compulsion, coercion, or duress) is available in escape from custody cases. See United States v. Bailey, 444 U.S. 394, 412-13, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980); United States v. Boomer, 571 F.2d 543, 545 (10th Cir. 1978); Mayes v. State, 453 So. 2d 767, 769 (Ala. App. 1984); Wells v. State, 687 P.2d at 350; People v. McKnight, 626 P.2d 678, 681 (Colo. 1981); Johnson v. State, 379 A.2d 1129, 1131-32 (Del. 1977); Stewart v. United States, 370 A.2d 1374, 1377 (D.C. 1977); Holdren v. State, 415 So. 2d 39, 41 (Fla. Dist. App. 1982); State v. Horn, 58 Hawaii 252, 256, 566 P.2d 1378 (1977); State v. Mills, 117 Idaho 534, 537, 789 P.2d 530 (1990); People v. Scott, 194 Ill. App. 3d 634, 551 N.E.2d 288, 291-92 (1990); Walker v. State, 269 Ind. 346, 348, 381 N.E.2d 88 (1978); State v. Reese, 272 N.W.2d 863, 867 (Iowa 1978); State v. Boleyn, 328 So. 2d 95, 97 (La. 1976); Craddock v. State, 47 Md. App. 513, 515, 424 A.2d 168 (1981); State v. Kirkland, 684 S.W.2d 402, 405 (Mo. App. 1984); State v. Strandberg, 223 Mont. 132, 135, 724 P.2d 710 (1986); State v. Reed, 205 Neb. 45, 51, 286 N.W.2d 111 (1979); Jorgensen v. State, 100 Nev. 541, 544, 688 P.2d 308 (1984); State v. Saxon, 226 N.J. Super. 653, 657, 545 A.2d 255 (1988); State v. Watts, 60 N.C. App. 191, 193-94, 298 S.E.2d 436 (1982); State v. Cross, 58 Ohio St. 2d 482, 488, 391 N.E.2d 319 (1979); Nichols v. State, 564 P.2d 667, 669 (Okla. Crim. 1977); Com. v. Stanley, 498 Pa. 326, 339, 446 A.2d 583 (1982); State v. Henderson, 298 S.C. 331, 333, 380 S.E.2d 817 (1989); Thiel v. State, 676 S.W.2d 593, 595 (Tex. Crim. 1984); State v. Tuttle, 730 P.2d 630, 635 (Utah 1986); State v. Niemczyk, 31 Wash. App. 803, 807-08, 644 P.2d 759 (1982). See generally Annot., 69 A.L.R.3d 678, 688-89.
Pichón argues that the defense of compulsion, as set forth in K.S.A. 21-3209, does not expressly require that the defendant immediately surrender when danger is past in order to be entitled to assert the defense. He contends that the strict rules of construction of criminal statutes thus preclude application of this condition. Aside from the fact that K.S.A. 21-3209 is not limited to prison escapes, we note that in a number of states, including Montana, Pennsylvania, Texas, and Utah, such a condition has been required, although the equivalent statutory defenses in those states also do not expressly impose such a requirement.
The Utah Supreme Court Stated its position:
“We find that the importation of this common law requirement into the statute also was proper and consistent with the statute’s purpose. The law recognizes that a defendant faced with a serious threat of bodily harm who has no alternative but escape should not, in all fairness, be convicted of a crime for that action. However, while a defendant may be forced to escape a specific threat, the defense does not give an escaped convict a license to remain indefinitely at large. The compulsion defense is certainly not a grant of amnesty. Once the coercion justifying the escape disappears, there is no policy reason to justify the convict in remaining at large.” State v. Tuttle, 730 P.2d at 635.
Following the majority of jurisdictions, we adopt the rule from Lovercamp with one modification to make test number one consistent with the language of K.S.A. 21-3209 as follows: “The prisoner is faced with a threat of imminent infliction of death or great bodily harm.”
In the present case, Pichón cannot meet the fifth part of this test. He admits that he neither tried nor intended to try to turn himself in to the proper authorities once the immediate threat he alleges had passed. Therefore, the compulsion defense would not, as a matter of law, have been available to him.
Furthermore, Pichón himself admitted he could have gone into the community center rather than trying to escape. The defense would not be available because Pichón had a reasonable opportunity to escape the compulsion without committing the crime, and so the proposed testimony would have been irrelevant. See State v. Dunn, 243 Kan. at 421. “[T]he judgment of a trial court, if correct, should be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” 243 Kan. at 430.
As his second issue, Pichón contends the evidence was not sufficient to prove the crime of aggravated escape from custody. K.S.A. 21-3810.
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
Pichón notes that the information charged he had escaped from the custody of the “Kansas Correctional Institution, Lansing, Kansas.” He further notes that the relevant jury instruction defined custody as “detention in a facility for holding persons charged with or convicted of crimes.” Pichón argues that the evidence at trial showed only that he departed from the Leavenworth Community Center. Pichón contends that he was not, therefore, in custody as alleged in the information or defined in the jury instruction. The issue then is whether Pichón was still in the cus tody of KCIL, although beyond the confines of the facility, while on an authorized excursion to play volleyball.
Pichón does not expressly challenge the legal sufficiency of the charging instrument or the jury instruction.
The crime of aggravated escape from custody is defined in K.S.A. 21-3810. That statute, in relevant part, states: “Aggravated escape from custody is: (a) Escaping while held in lawful custody upon a charge or conviction of felony.” Although K.S.A. 21-3810 does not define “custody,” K.S.A. 21-3809, the statute defining the misdemeanor crime escape from custody, was amended in 1982 to add such a definition. K.S.A. 21-3809(b)(1) states:
“ ‘Custody’ means arrest; detention in a facility for holding persons charged with or convicted of crimes; detention for extradition or deportation; detention in a hospital or other facility pursuant to court order, imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program; or any other detention for law enforcement purposes. ‘Custody’ does not include general supervision of a person on probation or parole or constraint incidental to release on bail.”
In State v. Pritchett, 222 Kan. 719, 720, 567 P.2d 886 (1977), decided before there was a relevant statutory definition of custody for the purposes of K.S.A. 21-3810, the court stated:
“[C]ustody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. [Citation omitted.] There is no requirement that the prisoner be constantly supervised or watched over by prison officials. [Citation omitted.] The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.”
The discussion of custody in Pritchett has been favorably cited in at least one case since the definition of custody was codified in K.S.A. 21-3809, indicating the analysis applied there is still valid. See State v. Garrett, 235 Kan. 768, 772-73, 684 P.2d 413 (1984).
There was nothing to show that the officials of KCIL had evidenced any intent to abandon or give up Pichón, leaving him free and unrestrained to go on his way. Furthermore, a long line of cases demonstrates that a prisoner remains in custody of the facility where he is detained, although beyond its confines for various authorized reasons. See United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971) (while on work release); Tucker v. United States, 251 F.2d 794 (9th Cir. 1958) (while in private hospital for treatment); State v. Williams, 208 Kan. 480, 493 P.2d 258 (1972) (in outside dormitory); State v. Gordon, 203 Kan. 69, 453 P.2d 80 (1969) (in outside barracks); Commonwealth v. Hughes, 364 Mass. 426, 305 N.E. 2d 117 (1973) (while on furlough).
Pichón was in custody, as that term is used in K.S.A. 21-3810, at the time of his escape. As Pichón has not suggested the absence of any other element of the crime charged, we find, after a review of all the evidence, viewed in a light most favorable to the prosecution, that a rational factfinder could have found Pichón guilty beyond a reasonable doubt.
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Gernon, J.:
B.S., a minor, appeals from the trial court’s denial of his motion to withdraw his admission in a juvenile proceeding.
B.S. was charged as a juvenile with indecent liberties with a minor. B.S. admitted his involvement on advice of his court-appointed counsel. B.S. later filed a motion to withdraw his admission. The court stated that, although B.S. was not informed of his rights as expressly required by K.S.A. 38-1633, the court was confident that B.S.’ counsel had informed B.S. of his rights.
The relevant parts of K.S.A. 38-1633 state:
“(b) When the respondent appears with an attorney in response to a complaint, the court shall require the respondent to admit or deny the allegations stated in the complaint or plead nolo contendere, unless there is an application for and approval of a diversion program. Prior to making this requirement, the court shall inform the respondent of the following:
“(1) The nature of the charges in the complaint;
“(2) the right of the respondent to be presumed innocent of each charge;
“(3) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
“(4) the right to subpoena witnesses;
“(5) the right of the respondent to testify or to decline to testify; and
“(6) the dispositional alternatives the court may select as the result of an adjudication.
“(c) If the respondent admits the allegations contained in a complaint or pleads nolo contendere, the court shall determine, before accepting the admission or plea and entering an order of adjudication: (1) That there has been a voluntary waiver of the rights enumerated in subsections (b)(2), (3), (4) and (5); and (2) that there is a factual basis for the admission or the plea of nolo contendere." (Emphasis added.)
The record contains no mention that B.S. was informed of his rights under K.S.A. 38-1633(b). Instead, at the hearing on the motion to withdraw, the court stated that it was the “practice” of the court not to inform a juvenile of his or her rights, but instead to rely on the attorney appointed to represent the minor to inform the juvenile of those rights.
This practice may be well intended, but it does not comport with the statute. K.S.A. 38-1633(b) expressly requires the court to inform the minor of the information specifically contained in the statute.
Kansas courts have not interpreted this part of K.S.A. 38-1633(b), but have considered an analogous statute concerning informing an adult of his or her rights in criminal proceedings.
The Kansas Supreme Court stated in State v. Browning, 245 Kan. 26, 32, 774 P.2d 935 (1989), that “[i]f upon review of the entire record it can be determined that the pleas of guilty were knowingly and voluntarily made, the error resulting from failure to comply strictly with K.S.A. 22-3210 is harmless.” Citing Trotter v. State, 218 Kan. 266, 269, 543 P.2d 1023 (1975).
Our reading of the parts of the record available in both Trotter and Browning leads us to conclude that the information given in both far exceeded the information given B.S.
This court addressed the voluntariness question and whether the record supported such a plea in Clinkingbeard v. State, 6 Kan. App. 2d 716, 717, 634 P.2d 159 (1981), citing Trotter, and concluded that “[t]he record before us fails to ‘affirmatively disclose a knowing and voluntary plea.’ ”
Also in Clinkingbeard, we stated, “[B]ecause a guilty plea admits all elements of the crime charged, a voluntary guilty plea requires that the defendant understand those elements as they relate to the facts. McCarthy v. United States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969).” 6 Kan. App. 2d at 717.
The trial court’s reliance on B.S.’ attorney to inform B.S. of his rights is insufficient and. contrary to a clear reading of K.S.A. 38-1633. Therefore, we reverse and remand for further proceedings. | [
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Briscoe, C.J.:
Leta Mae Barrett and Russel Barrett (Barretts) appeal from an order quieting title to disputed property in Ninnescah Bow Hunters Association (Bow Hunters) and from a finding that a roadway easement exists in favor of the Board of County Commissioners of Sedgwick County.
Bow Hunters’ property is north of and adjacent to the Barretts’ property. The acreage in dispute lies between a fence line and a line of elm trees north of the fence line. The Barretts contend their property extends to the tree line; Bow Hunters contends the fence line marks the northern boundary of the Barretts’ property. The roadway in dispute abuts the eastern boundary of the Barretts’ property and provides access to Bow Hunters’ property.
I. Roadway easement.
The Barretts contend the court erred in finding an existing easement because the County did not order the trustees of the affected townships to open the road for public travel in 1875. The Barretts further argue that, since the road was not opened, the nonuser statute of 1879 applies and any purported dedication of the roadway was vacated as a matter of law.
In 1872, the legislature passed an act declaring all section lines in a variety of counties, including Sedgwick, public highways. L. 1872, ch. 181, § 1. In 1874, the legislature enacted the procedures necessary for establishing county roads. L. 1874, ch. 108. These procedures included the appointment of road viewers and the preparation and presentation of their report to the county commissioners:
“And the viewers shall make and sign a report in writing, stating their opinion in favor of or against the establishment, alteration or vacation of said road, or any part thereof, and set forth the reason of the same; which report shall be delivered to the county clerk by one of the viewers on or before the first day of the session of the county commissioners then next ensuing, and it shall be the duty of the commissioners, on receiving the report aforesaid, to cause the same to be read before their meeting; and if said report is favorable, and no legal objections appear against said report, and they are satisfied that such road will be of public utility, they shall order said road, survey and plat to be recorded, and irom thenceforth said road shall be considered a public highway, and the commissioners shall issue their order to the trustees of the respective townships in which such road is located, directing them to cause the same to be opened for the public travel.” L. 1874, ch. 108, § 6.
In 1879, the legislature passed an act for the vacation of unopened roads, commonly referred to as the “nonuser” statute (L. 1879, ch. 150, § 1):
“That any county road or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one time after the order made or the authority granted for opening the same, shall be and the same is hereby vacated, and the authority granted for erecting the same is barred by lapse of time.”
In 1875, pursuant to the 1874 act, the Sedgwick County Commissioners appointed road viewers. The road viewers prepared a report recommending to the county commissioners the establishment of “Central Road.” (Central Road is the section line bordering the Barretts’ property on the east and is the roadway at issue.) This report was received by the county commissioners, who then ordered the report “placed upon record.” In 1877, the first private person in the chain of title to the Barretts’ property received a patent from the United States Government.
In Kansas, a private party cannot obtain title to a public highway by adverse possession. Eble v. State, 77 Kan. 179, 184, 93 Pac. 803 (1908). A private person takes a patent to public land subject to any existing easements in favor of the public. Tholl v. Koles, 65 Kan. 802, 805, 70 Pac. 881 (1902). The nonuser statute applies only to roads authorized but otherwise never opened or used. Kiehl v. Jamison, 79 Kan. 788, 791, 101 Pac. 632 (1909). Subsequent nonuse of an opened road is not destructive of the public right. Gehlenberg v. Saline County, 100 Kan. 487, 495, 165 Pac. 286 (1917).
In the present case, the patent on the property was first issued after the legislature declared the section line a public highway and after the road viewers’ report was “placed upon the record” by the county commissioners. Therefore, if the acts of the county commissioners were sufficient to open the road, the patent was received subject to the roadway easement and any use or nonuse of the road by the public after that date is irrelevant.
The Barretts argue the commissioners’ actions in 1875 did not fully satisfy the statutory requirements for opening a road. Specifically, they argue the commissioners failed to order the trustees of the affected townships to open the road for public travel as required by law: “[T]he commissioners shall issue their order to the trustees of the respective townships in which such road is located, directing them to cause the same to be opened for the public travel.” L. 1874, ch. 108, § 6. They concede the County approved the road viewers’ report and placed the order on the record, but argue the present-day county commissioners’ failure to prove their predecessors ordered the township trustees to open the road renders the purported opening void and application of the nonuser statute results in the vacation of Central Road as a matter of law. We disagree.
Once the report of the road viewers is recorded, the road is established and the burden is on the complaining party to establish the invalidity of the actions taken. See Gehlenberg, 100 Kan. at 491. In Kansas, substantial compliance with the statute relating to roads and highways is sufficient to open a road:
“ ‘In determining the sufficiency of the records of inferior tribunals and public boards, to express their purposes or to preserve a memorial of their transactions respecting matters within their jurisdiction, technical precision should not be required; on the contrary, they should be liberally construed. They are not usually drawn by persons possessed of professional knowledge or skill in such matters; the law does not contemplate that such tribunals or boards shall be constantly attended by persons having such knowledge or skill, but rather, that their duties will be performed,' at least generally, without such assistance. To subject them to the test of technical precision would, in most instances at least, defeat the object sought to be attained by the legislature in creating inferior tribunals and public boards; and therefore, however informal their records may be, if enough appears to show with reasonable certainty that the requirements of the law have been substantially complied with, their proceedings should, upon grounds of public policy, if for no other reason, be sustained.’ [Citation omitted.]” Gehlenberg, 100 Kan. at 490-91.
As further stated in Gehlenberg:
“But flies in the county clerk’s office, and particularly files a third of a century or half a century old, may be misplaced or lost or destroyed. The rule is that absence of documents from the files is not conclusive evidence that they were never filed. [Citation omitted.] Section 6 anticipated the rule, and when the viewers’ report, the survey and the plat have been recorded, everything essential to legal establishment of the road shall be considered as having been done.” 100 Kan. at 493.
It is conceded by the Barretts that the recording of a survey and plat were not required in this instance because the road was to be located upon or along a section line. L. 1874, ch. 108, § 3. Finally, “a road can not be regarded as unopened or unused where the country through which it lies was open and unobstructed at the time it was authorized and established.” Kiehl, 79 Kan. at 791.
Here, the Barretts had the burden of proving the County did not order the township trustees to open Central Road. This they failed to do. The County substantially complied with the statute when it approved the road viewers’ report and ordered it “placed upon record.” The land that Central Road traversed was open prairie when the road was authorized and established. Thus, evidence of any use or nonuse after Central Road was established is irrelevant. Central Road was validly opened in 1875 and, to vacate it now, the Barretts must follow the procedures for vacating a road. Eble, 77 Kan. at 183. This they have not done.
The Barretts raise several evidentiary issues concerning the use or nonuse of the road: (1) whether the court erred in refusing to admit an 1882 atlas; (2) whether the court erred in admitting Rosalie Watts’ affidavit: and (3) whether the court erred in allowing Keith Harrington’s testimony. By its very terms, the nonuser statute applies only to roads authorized but otherwise unopened for a seven-year period after authorization. L. 1879, ch. 150. In the present case, Central Road was authorized in 1872 when the legislature declared all section lines in Sedgwick County public highways. L. 1872, ch. 181. Central Road was opened in 1875 when the county commissioners approved the road viewers’ recommendation and placed the road viewers’ report on the record. The nonuser statute has no application under these circumstances and subsequent nonuse of any section of Central Road is not determinative of the issue at hand. Gehlenberg, 100 Kan. at 495. Therefore, we need not address the three enumerated evidentiary issues.
II. Disputed acreage.
The Barretts next contend the district court erred in finding Meyer obtained title to the disputed acreage by adverse possession. The Barretts’ claim is multi-faceted: (1) The uncontroverted evidence establishes Meyer did not have exclusive possession of the strip after 1963; (2) Bow Hunters cannot be given equitable title when legal title was conveyed pursuant to the quitclaim deeds from Meyer’s residuary legatees; and, finally, (3) Rogers only received the north 10 acres in Meyer’s will and, thus, any attempt to give her successors more acreage is an impermissible collateral attack on the probate proceedings. Bow Hunters argues the evidence proved Meyer adversely possessed the property for more than 15 years and, as this is a question of fact, the decision must be affirmed if there is substantial competent evidence to support it. Schaake v. McGrew, et al., 211 Kan. 842, 845, 508 P.2d 930 (1973). Bow Hunters also argues Meyer intended to give Rogers all the property he owned and the misdescription of the property in Meyer’s will does not defeat its claim.
The district court found the fence line separating the two properties, by reputation in the community, constituted the boundary line for over 15 years. The Barretts were aware of the fence line and knew Meyer possessed all the land north of the fence; thus, Meyer obtained title to the strip by adverse possession. The court also found the Barretts could not defeat Bow Hunters’ superior claim by virtue of quitclaim deeds.
K.S.A. 60-503 provides: “No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.” Whether title is acquired by adverse possession is a question of fact to be determined by the trier of fact. See Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980). The standard of review therefore is whether there is substantial competent evidence to support the trial court’s findings. Schaake v. McGrew, et al., 211 Kan. 842, 845, 508 P.2d 930 (1973). Further, the reviewing court does not reweigh the evidence or judge the credibility of witnesses. See Boese v. Crane, 182 Kan. 777, 779, 324 P.2d 188 (1958).
In the present case, there is no question Meyer possessed the land north of the fence line from 1953 until his death in 1980. For purposes of 60-503, Meyer’s successors in interest need only establish Meyer’s adverse possession for a period of 15 years or until 1968. For 27 years, Meyer’s possession of the land north of the fence line was open and continuous and was based on a belief of ownership. The only question is whether the evidence supports a finding of “exclusive” use for the 15-year period from 1953 to 1968.
The Barretts purchased the south 70 acres in 1963 and began farming the land in 1976. Prior to 1976, the only use they made of the land north of the fence line was an occasional weiner roast and picnic with the Campfire Girls. The rest of the various uses listed by the Barretts did not begin until 1971. Is such incidental use sufficient to conclude Meyer did not exclusively possess the land?
For 27 years, Meyer used the property as a vacation “get away” on a regular basis. He maintained a cabin, a pole bam, and a windmill on the property and kept horses there for quite awhile. Meyer also leased the land to a neighbor for cattle grazing. The Barretts knew of the fence line in 1963 and knew Meyer had been in possession of the land north of the fence since 1953. Yet they did not dispute the location of the true boundary until after Meyer’s death in 1980. The trial court found most, if not all, of the Barretts’ activities north of the fence occurred after 1976 and did not act to dispossess Meyer or his successors. The record supports this finding.
Having concluded that Meyer’s adverse possession of the disputed strip was established, we also must address whether his subsequent devise of the property limited the interest of his successors. If the successors’ rights are so limited, the quitclaim deeds obtained by the Barretts from the residuary legatees would effect transfer of the strip to the Barretts.
Meyer’s will gave to his friend Ida Rogers land described as the “North 10 acres of the East half of the Southwest quarter, Section 25, Township 29, Range 3 West, Sedgwick County, Kansas.” The probate court made a correction in the journal entry of final settlement of Meyer’s estate when it distributed to Rogers the “North 10 acres of the East half of the Southeast quarter.” (Emphasis added.) Barrett argues this devise gave Rogers only the north 10 acres and any remaining acreage fell to the residuary legatees. Bow Hunters argues the district court implicitly found Meyer intended that Rogers receive all of the acreage and misdescription of the property does not adversely affect its claim.
K.S.A. 59-614 provides: “Every devise of real estate shall pass all the estate of the testator therein, unless it clearly appears by the will that he or she intended a less estate to pass.” Here, Meyer did not express an intent to convey less than his entire interest in the acreage and it cannot be said the intent to convey a lesser interest is necessarily implied from the terms of the devise. See Zabel v. Stewart, 153 Kan. 272, 279, 109 P.2d 177 (1941).
Additionally, where there is a latent ambiguity in the description of the land conveyed, parol evidence may be admitted to explain the ambiguity. Hoover v. Roberts, 146 Kan. 785, 792, 74 P.2d 152 (1937). Here, Meyer owned all of the land north of the fence line. Both he and the prior owner, Thomas Jaycox, obviously assumed that Jaycox owned an 80-acre tract of land out of which Meyer purchased 10 acres. The attorney who probated Meyer’s estate testified that Meyer intended to give the acreage to Rogers and did not intend to pass a strip to the residuary legatees. The attorney for Meyer’s widow testified that Meyer intended that Rogers receive all of the acreage. Rogers testified that Meyer told her on more than one occasion that “the farm” would be hers and indicated “the farm” encompassed all of the land north of the fence line. There was no evidence that Meyer intended anything other than passing all of the acreage to Rogers. The acreage referred to in Meyer’s will was merely a descriptive name and not the exact quantity that Meyer intended to convey to Rogers. See Mayberry v. Beck, 71 Kan. 609, 612, 81 Pac. 191 (1905).
It is clear that Meyer obtained title to the acreage between the fence line and the line of elm trees by adverse possession. Rogers inherited the acreage upon Meyer’s death and Bow Hunters, as successor in interest, has title to the disputed strip north of the fence.
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Brazil, J.:
St. Joseph Medical Center (St. Joseph) appeals from the trial court’s finding that Helen Harlow’s attorney was entitled to 25% of the $5,000 hospital lien filed against Harlow for medical services after Harlow received a settlement of $35,000 for her injuries. We remand with directions.
St. Joseph argues K.S.A. 65-406 does not allow for a hospital lien to be subject to attorney fees in favor of the patient’s attorney. It claims the language creates a priority allowing the patient’s attorney to recover his fee before payment of the hospital lien. Harlow responds that the lien cannot prejudice or interfere with any contracts between the patient and her attorney; thus, attorney fees can be deducted from the lien.
This is an issue of first impression in Kansas. The resolution depends on the interpretation of K.S.A. 65-406, which provides:
“Every hospital in the state of Kansas, which shall furnish emergency, medical or other service to any patient injured by reason of an accident not covered by the workmen’s compensation act, shall, if such injured party shall assert or maintain a claim against another for damages on account of such injuries, have a lien not to exceed five thousand dollars ($5,000) upon that part going or belonging to such patient of any recovery or sum had or collected or to be collected by such patient, or by his heirs, personal representatives or next of kin in the case of his death, whether by judgment or by settlement or compromise to the amount of the reasonable and necessary charges of such hospital for the treatment, care and maintenance of such patient in such hospital up to the date of payment of such damages; Provided, however, That this lien shall not in any way prejudice or interfere with any lien or contract which may be made by such patient or his heirs or personal representatives with any attorney or attorneys for handling the claim on behalf of such patient, his heirs or personal representatives: Provided further, That the lien herein set forth shall not be applied or considered valid against anyone coming under the workmen’s compensation act in this state.”
K.S.A. 65-408 provides that, after a hospital lien is properly filed, any person making payment to the patient or the patient’s attorney or legal representative as compensation for the injury sustained without paying the hospital the amount of its lien is liable to the hospital for one year for the amount the hospital was entitled to receive.
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
“The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs; the court must give effect to the legislature’s intent ‘even though words, phrases or clauses at some place in the statute must be omitted or inserted. ’ [Citations omitted. ] In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citations omitted.] Ordinarily, courts presume that by changing the language of a statute the legislature intends to change its effect. This presumption, however, may be strong or weak according to the circumstances, and may be wanting altogether in a particular case.” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
Reading both K.S.A. 65-406 and 65-408 together indicates the legislature contemplated that the hospital receive the full amount of the lien, not the lien less attorney fees. The purpose of the hospital lien statute is to ensure payment of up to $5,000 to hospitals out of any recovery by patients for medical care provided to patients injured as a result of an accident. If Harlow’s method of apportioning the settlement were applied, this would erode some of the effectiveness of K.S.A. 65-406.
Furthermore, a comparison of K.S.A. 65-406 to K.S.A. 1990 Supp. 40-3113a(e) indicates the legislature would have expressly allowed the patient’s attorney to collect fees from the hospital had that been its intent. K.S.A. 1990 Supp. 40-3113a(e), the personal injury protection lien statute, expressly allows for recovery of fees in favor of the injured party’s attorney. K.S.A. 1990 Supp. 40-3113a(e) provides: “Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, such person’s dependents or personal representatives in the amounts determined by the court.”
St. Joseph has a lien “upon that part going or belonging to such patient.” K.S.A. 65-406. The lien, however, cannot interfere with Harlow’s contract with her attorney. K.S.A. 65-406. Harlow argues that, if St. Joseph’s method of apportionment is followed, the hospital lien interferes with or prejudices her contract with her attorney and her attorney’s priority to fees. As St. Joseph argues, however, the part “going or belonging” to the patient is the part remaining after the fee of the lawyer is deducted. This does not interfere with or prejudice Harlow’s contract with her attorney. The legislative intent, to provide a certain degree of protection to the lawyer while he or she effectuates a recovery for the client, is accomplished by making the hospital lien inferior to the attomey/client contract.
The law employs priorities when there are insufficient funds to satisfy all claims made against that money or property. See Bridge Co. v. Railroad Co., 91 Kan. 887, 139 Pac. 357 (1914). Even if it were necessary to prioritize the claims in this case, Harlow’s method does not follow general principles of priority. When the law prioritizes competing interests, it takes a portion of the pie and gives it to the first in line. The next in line gets the next piece of the pie. If there is enough for three pieces of pie, the first party in line does not take a sliver from each piece; the first party just gets the first piece.
In the instant case, Harlow’s attorney gets the first piece of the pie. Thus, he gets 1/3 of $35,000. St. Joseph Hospital gets the second piece of the pie, or $5,000. Harlow gets the rest. If Harlow had settled for only $6,000, the same rule should apply. The attorney would get $2,000 or 1/3 of the settlement, and St. Joseph would get $4,000.
Acceptance of the theory upon which Harlow’s lawyer appears to base his argument would result in the application of what Illinois calls the “fund” doctrine to 65-406 cases. The “fund” doctrine is a theory of recovery adopted by the Illinois courts in Baier v. State Farm Insurance Co., 66 Ill. 2d 119, 361 N.E.2d 1100 (1977). The doctrine is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from all those who seek to benefit from it. Wheaton v. Dept. of Public Aid, 92 Ill. App. 3d 1084, 416 N.E.2d 780 (1981). In Baier, the insurance company-subrogee made the insured-subrogor an interest-free loan thaf was to be repaid only if a recovery from the tortfeasor was effected. 66 Ill. 2d at 122. The Baier court held that, where a fund has been created as a result of an attorney’s services for his client, the attorney was entitled to a fee from the subrogee in proportion to the benefit received by the subrogee.
Illinois courts have found the doctrine is inapplicable to the liens of hospitals and physicians. Maynard v. Parker, 75 Ill. 2d 73, 387 N.E.2d 298 (1979); Wheaton v. Dept. of Public Aid, 92 Ill. App. 3d at 1086. Illinois follows the rule that a hospital lien is not subject to attorney fees in favor of the patient’s attorney when the settlement proceeds are sufficient to fully satisfy the attorney fees and the amount of the hospital lien. Maynard v. Parker, 75 Ill. 2d 73, Syl.
The instant case is distinguished from cases involving subrogation because, in those cases, the obligation of the subrogated insurer to share in the costs of recovery from a third-party tortfeasor arises because the insurer occupies the position of the insured with coextensive rights and liabilities and no creditor-debtor relationship between them. Sisters of Charity v. Nichols, 157 Mont. 106, 112, 483 P.2d 279 (1971). In comparison, Harlow was a debtor obligated to pay for the services she received from St. Joseph. Harlow’s liability to St. Joseph was not dependent upon creation of a fund by Harlow’s attorney.
In agreement with Illinois are Florida, Iowa, Oklahoma, Texas, and Montana, which follow the rule that attorney fees cannot be deducted from the hospital lien. All of these jurisdictions, when confronted with the question of apportionment when there are sufficient funds to satisfy attorney fees and a hospital lien, follow the rule that attorney fees cannot be deducted from the hospital lien. Hosp. Bd. of Directors of Lee v. McCray, 456 So. 2d 936, 939 (Fla. Dist. App. 1984) (citing Crowder v. Dade County, 415 So. 2d 732 [Fla. Dist. App. 1982]; Public Health Trust of Dade County v. O’Neal, 348 So. 2d 377 [Fla. Dist. App. 1977]); Broadlawns, Etc. v. Estate of Major, 271 N.W.2d 714 (Iowa 1978); Sisters of Charity v. Nichols, 157 Mont. 106; Hillcrest Medical Ctr. v. Fleming, 643 P.2d 868 (Okla. 1982); Bashara v. Baptist Memorial Hosp. System, 685 S.W.2d 307 (Tex. 1985). The Iowa court based its decision on the general rule that “ ‘[t]here is no implied promise to pay an attorney whom one has not employed, because of incidental benefits derived from his services.’ ” Broadlawns, Etc. v. Estate of Major, 271 N.W.2d at 716.
Oklahoma has a statute that is virtually identical to K.S.A. 65-406. Okal. Stat. tit. 42, § 43 (1990). In interpreting the Oklahoma statute, the court in Hillcrest Medical Ctr. v. Fleming held that, where the amount of settlement of a patient’s action against a tortfeasor exceeded the total of the hospital lien and the attorney’s lien for his contingency fee in representing the patient, the attorney could not deduct his contingent fee percentage out of a specific check from the insurer for the amount of the hospital lien that was made payable to the claimant, his attorney, and the hospital. 643 P.2d at 869. The court reasoned that, where the settlement fund was sufficient to satisfy both the attorney and the hospital lien, it was not necessary to determine priorities between the hospital’s lien and the attorney’s fee. 643 P.2d at 869.
In Fleming, the Oklahoma court distinguished the facts of its case from Vinzant v. Hillcrest Medical Ctr., 609 P.2d 1274 (Okla. 1980). In that case, there were insufficient funds to pay the attorney’s contingent fee and a hospital lien. The court held that the attorney was entitled to a percentage of the hospital lien. 609 P.2d at 1277.
Another state distinguishing between when there are sufficient funds to satisfy a hospital lien and attorney fees is Iowa. Matter of Guardianship of Hunter, 442 N.W.2d 94 (Iowa 1989). That court held that, where a hospital had a lien for $111,000 in medical treatment and a patient’s claims against two tortfeasors was settled for $15,000, the claim for attorney fees has priority over the claim of the hospital. 442 N.W.2d at 98. Maryland and New York have also held a hospital lien can be reduced where there are insufficient funds to pay the patient’s attorney fees and hospital lien. St. Joseph Hospital v. Quinn, 241 Md. 371, 216 A.2d 732 (1965); Abbondola v. Kawecki, 177 Misc. 122, 29 N.Y.S.2d 530 (1941).
Finally, Harlow argues there is an insufficient record on appeal for review. She points out there is nothing in the record as to the amount going or belonging to her. St. Joseph responds the record on appeal does not include a transcript of the hearing in district court because it is not appealing from an evidentiary hearing. The issue before the court is a legal issue; thus, the record on appeal is sufficient for the court to consider the issue without weighing any disputed facts or evidence and to determine whether the decision made by the district court judge was correct.
The interpretation of a statute is a question of law. “This court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Harlow does not deny that her settlement was for $35,000, only that the amount of the settlement is not included in the record. Likewise, Harlow has not argued on appeal that her settlement was insufficient to satisfy her attorney fees and the hospital lien. Such an argument would be the obvious response to St. Joseph’s argument that we adopt the rule that attorney fees cannot be deducted from the hospital lien when there are sufficient funds to satisfy both.
Remanded with directions to redetermine attorney fees in accordance with this opinion. | [
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Davis, J.:
The defendant, David Salinas, appeals from his sentence of a term of one to two years’ imprisonment following his guilty plea to one count of nonsupport of a child. K.S.A. 1990 Supp. 21-3605.
The State contends that this court has no jurisdiction to hear Salinas’ appeal because a minimum sentence was imposed following a guilty plea. The defendant contends that the trial court abused its discretion by ignoring the statutory criteria (K.S.A. 21-4606) and the policy mandates (K.S.A. 21-4601) in its imposition of sentence. We conclude that we have jurisdiction and that no abuse of discretion has been established.
Jurisdiction
“[A] decision whether or not to grant probation is exclusively a function of the trial court pursuant to K.S.A. 21-4603, and as a general rule a decision denying probation is not subject to appellate review.” State v. VanReed, 245 Kan. 213, 215, 777 P.2d 794 (1989). In State v. Haines, 238 Kan. 478, 712 P.2d 1211, cert. denied 479 U.S. 837 (1986), rev’d on other grounds State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), it was specifically held that K.S.A. 22-3602(a) precludes a direct appeal of a denial of probation following a guilty or nolo contendere plea.
An exception to this rule was created in VanReed when a statutory presumption of probation is found to apply, but Salinas does not contend any statutory presumption of probation applies in this case.
In the recent case of State v. Bruner, 15 Kan. App. 2d 369, 808 P.2d 440 (1991), it was held that when a defendant challenges imposition of the sentence, rather than denial of probation or denial of a motion to modify the minimum sentence, the appellate courts “have jurisdiction to hear appeals from the imposition of minimum sentences not involving presumptive probation after a plea of guilty or nolo contendere.” 15 Kan. App. 2d at 373.
In his brief on appeal Salinas challenges only the manner of imposition of his sentence and does not raise a challenge to the denial of his motion for probation. We find that we have jurisdiction to hear this case.
We note that the offense in this case occurred between July 1, 1985, and December 5, 1989. K.S.A. 1989 Supp. 21-4606b, dealing with a presumptive sentence of assignment to a community correctional service program, became effective on July 1, 1989. (L. 1989, ch. 92, § 13) It would appear that defendant is eligible for consideration under subsection b. However, the defendant does not raise this issue and we do not address it.
The Sentence
Salinas argues that the district court abused its discretion by completely ignoring the statutory criteria of K.S.A. 21-4606 and the policy mandates of K.S.A. 21-4601. Salinas contends that the district court determined his sentence by focusing solely on the nature of the offense.
A sentence imposed by a district court will not be disturbed on appeal if it is within the limits prescribed by law and within the realm of discretion of the trial court and not a result of partiality, prejudice, oppression, or corrupt motive. State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989). Nonsupport of a child is a class E felony and the sentence the district court imposed was within the statutory limits. K.S.A. 21-4501(e). Salinas does not contend that the sentencing court’s decision was the result of partiality, prejudice, oppression, or corrupt motive.
A review of the transcript of the sentencing hearing shows that the trial court did not engage in a detailed examination on the record of each of the statutory factors listed at K.S.A. 21-4606(2). Our Supreme Court has stated: “[W]hen the sentence exceeds the statutory minimum, it is the better practice for the sentencing court to place on the record a detailed statement of the facts and factors it considered.” (Emphasis added.) State v. Bennett, 240 Kan. 575, 578, 731 P.2d 284 (1987). In this case the sentence did not exceed the statutory minimum. When the sentencing court imposes a minimum sentence “a record of the factors it considered is even less important.” State v. Brewer, 11 Kan. App. 2d 655, 665, 732 P.2d 780, rev. denied 241 Kan. 839 (1987). Furthermore, failure to place a detailed examination of the sentencing factors on the record does not necessarily indicate the court abused its discretion. “[E]ach case is to be considered separately on its facts.” State v. Meyers, 245 Kan. 471, 479, 781 P.2d 700 (1989).
The factors which the court must consider when sentencing a defendant to a term of imprisonment are:
“(a) The defendant’s history of prior criminal activity;
“(b) The extent of the harm caused by the defendant’s criminal conduct;
“(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
“(d) The degree of the defendant’s provocation;
“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
“(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.” K.S.A. 21-4606(2).
At the sentencing hearing Salinas’ attorney was afforded the opportunity to make extensive remarks. He offered nothing which could amount to any provocation for Salinas’ crime or which suggested that the victims of Salinas’ crime induced or facilitated its commission.
Salinas’ attorney did attempt to offer justification for Salinas’ conduct, suggesting that Salinas’ relationship with his ex-wife was stormy and that he had lost his business in 1985. Salinas himself seems to have acknowledged before the court that his conduct caused substantial harm to his children.
The court also had before it the presentence investigation report prepared for its use. The court expressly noted that Salinas had an extensive record of prior misdemeanor convictions and diversions. The court further noted that Salinas was $36,690.91 in arrears in his child support payments and that this failure to pay had been harmful to his children.
The record demonstrates the sentencing court had before it facts which addressed all the factors set forth in K.S.A. 21-4606. There is no evidence that the court failed to consider the sentencing factors, and it is clear the court’s sentencing decisions were not based simply on the nature of the crime charged.
Affirmed.
See order reprinted on page 584. | [
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Lewis, J.:
This is an appeal by the defendant, Hugo Ribadeneira, from his convictions of two counts of securities fraud, one count of selling securities while not registered as a broker, and one count of selling unregistered securities. As a result of his convictions, the defendant was sentenced to a term in the custody of the secretary of corrections, and restitution was ordered in the amount of $35,272.80.
The facts of this case are complex and rather convoluted. We will not, however, state them in detail but only as necessary to discuss the numerous issues involved in this appeal. During the years of 1983, 1984, and 1985, the defendant was involved in a number of building projects in Wichita. In order to accomplish these projects, two limited partnerships were formed, and the defendant was involved in managing and selling units in the limited partnerships to investors. One of these limited partnerships was known as Emporia Street Limited Partnership, and will be referred to in this opinion as ESLP. The other limited partnership is known as North Rock Road Limited Partnership, and will be referred to in this opinion as NRRLP.
The State charged that the defendant committed various and sundry fraudulent, deceptive, and misleading actions concerning the sale of units in ESLP and NRRLP. There were a number of investors who the State alleges were defrauded by the defendant’s activities.
Ultimately, it appears that the ventures in which the limited partnerships were involved were failures. The individuals who had purchased units in those limited partnerships from the defendant lost some, if not all, of their money.
The defendant was charged with four counts and tried on the third amended information filed in this action. He was ultimately convicted, as noted above, and appeals those convictions. Further facts concerning the defendant’s crimes will be developed as necessary in dealing with the many issues raised by the defendant on this appeal.
The defendant has briefed and argued 13 separate specifications of error on this appeal. We shall deal with each specification of error on an individual basis.
WAS THE BURDEN OF PROOF UNCONSTITUTIONALLY SHIFTED TO THE DEFENDANT?
K.S.A. 17-1262 lists 17 types of transactions which are exempted from the provisions of K.S.A. 17-1254 and K.S.A. 17-1255. If any of the defendant’s activities fell within one of those 17 exemptions, the action would not be criminal. K.S.A. 17-1272 provides that the State need not negate, in the indictment or information, any of these exemptions. The statute provides that the burden of proving any of the exemptions “shall be upon the party claiming the benefit of such exemption.”
Since it is the defendant in this matter who wishes to claim the benefit of exemptions under 17-1262, the provisions of 17-1272 place the burden of such proof upon him. This, defendant claims, is an unconstitutional shifting of the burden of proof from the State to the defendant and deprives him of due process. We do not agree.
We dealt with this issue specifically and precisely in State v. Kershner, 15 Kan. App. 2d 17, 801 P.2d 68 (1990). In Kershner, the same issue was raised, and we decided it adversely to the defendant, holding that 17-1272 does not unconstitutionally shift the burden of proof to defendant. We held that 17-1272 merely required a defendant to produce such facts, if they existed, as might exonerate him from the crime charged. The exemptions listed in the statute constitute affirmative defenses which the defendant legitimately has the burden of proving. In addition to Kershner, a number of our sister states have taken the same approach to the issue. See Commonwealth v. David, 309 N.E.2d 484, 490 (Mass. 1974); State v. Fries, 214 Neb. 874, 883, 337 N.W.2d 398 (1983); State v. Hoephner, 574 P.2d 1079, 1081 (Okla. Crim. 1978); State v. Crooks, 84 Or. App. 440, 734 P.2d 374 (1987).
On the basis of Kershner and the other decisions listed above, we hold defendant’s claim of an unconstitutional shifting of the burden of proof is without merit.
IS A GENERAL PARTNERSHIP INTEREST A SECURITY?
Among other things, defendant was charged with defrauding Dr. Monty Menhusen. The facts show that Dr. Menhusen purchased a general partnership interest in ESLP. The defendant argues that a general partnership interest is not a security and, hence, the sale was not in violation of the law.
The question we must determine is whether, under the facts and circumstances presented, the sale of a general partnership interest in ESLP was or could be found to be the sale of a security.
There are a number of tests that have been applied to determine whether a particular item or interest sold is a security. The United States Supreme Court, in S.E.C. v. Howey Co., 328 U.S. 293, 90 L. Ed. 1244, 66 S. Ct. 1100 (1946), developed a three-prong test to determine whether an interest sold was a security. The Howey test defines a security as (1) an investment of money, (2) in a common enterprise, (3) with the expectation that profits will be derived solely from the efforts of others. 328 U.S. at 301. The third prong, as emphasized, is the key element in defining whether a particular investment is a security or is some other form of investment.
The Howey test was amended by the United States Supreme Court in United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 44 L. Ed. 2d 621, 95 S. Ct. 2051 (1975). The court in Forman held that a security was an investment “in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial and managerial efforts of others.” 421 U.S. at 852.
These definitions of a security have been largely adopted in Kansas in State ex rel. Owens v. Colby, 231 Kan. 498, 646 P.2d 1071 (1982), and Activator Supply Co. v. Wurth, 239 Kan. 610, 722 P.2d 1081 (1986). In Colby, the court indicated that, in determining whether a particular financial relationship constitutes an “investment contract” and, therefore, a security under K.S.A. 17-1252(j), the test to be applied is whether the contractual arrangement involves an investment of money in a common enterprise with profits to come from the efforts of others. This test is to be applied in light of the economic realities of the particular contractual arrangement rather than simply accepting the terminology employed by the parties. Colby, 239 Kan. at 504. The Colby test was approved and reapplied in Activator Supply. The court in Activator Supply modified, to a degree, the definition of whether profits came from the efforts of others:
“The Colby test for an investment contract requires a contractual arrangement which involves an investment with profits to come from, the efforts of others. We agree with the court in Securities & Exchange Comm'n v. Glenn W. Turner Ent., Inc., 474 F.2d 476 [9th Cir. 1973], that the test to be applied is whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise. To hold otherwise would make it easy to evade the existence of an investment contract by adding a requirement in the contract that the buyer contribute a modicum of effort. The Turner test was applied in Miller v. Central Chinchilla Group, Inc., 494 F.2d 414 [8th Cir. 1974].” 239 Kan. at 620.
With these definitions in mind, it should be obvious that the sale of limited partnership interests are always sales of securities. Bosco v. Serhant, 836 F.2d 271, 280 (7th Cir. 1987). By their very definition, limited partners are passive and precluded from any active participation in management by the terms of the agreement. Hence, the expectation of limited partnership profits will always come through the managerial or entrepreneurial efforts of others. See 12 Long, Blue Sky Law § 2.04(2)(d), pp. 2-119-21 (1991 rev.).
By the same token, the sale of a general partnership interest is generally not considered the sale of a security. In a true general partnership, management and control is shared by all general partners. An individual who is a bona fide general partner is working for a profit through his own managerial skills and not those of others.
However, our Supreme Court has made it very clear that the fact of labeling something as a general partnership does not make it so. As Justice Prager said in Activator Supply: “This test is to be applied in light of the economic realities of the particular contractual arrangement . . . .” 239 Kan. 610, Syl. ¶ 5. An interest labeled a general partnership interest can, in fact, be a security despite its denomination. To determine whether it is or not, it must be determined whether the investor does or does not have any real managerial functions. If, in fact, the efforts made by those other than the investor “are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise,” then the interest is a security despite its labeling as a general partnership interest. See 239 Kan. 610, Syl. ¶ 8.
In the final analysis, whether the sale of a general partnership interest in ESLP was the sale of a security was a decision for the jury. It is, pure and simple, a question of fact.
The jury was properly instructed as to the law to be applied to the facts in deciding the issue. The Howey test and the test applied in Colby were included in those instructions. The jury determined that the sale of the general partnership interest in ESLP was the sale of a security.
The scope of our review over a jury verdict has been often stated. We are required to view the evidence in the light most favorable to the party prevailing on the issue, in this case the State of Kansas. If, when viewed in that light, there is substantial competent evidence from which the jury might have found the defendant guilty beyond a reasonable doubt, we affirm the decision of the jury. State v. White, 246 Kan. 28, 37-38, 785 P.2d 950 (1990); State v. Kershner, 15 Kan. App. 2d at 22. A guilty verdict will not be disturbed if based on substantial competent evidence. State v. Williams, 234 Kan. 233, 239, 670 P.2d 1348 (1983); State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980).
Our review of the record reveals substantial competent evidence from which the jury could have concluded, beyond a reasonable doubt, that the sale of a general partnership interest in ESLP was the sale of a venture in which Dr. Monty Menhusen’s expectation of profits was to be derived from the efforts of individuals other than himself. We do not intend to recount all of that evidence in this opinion. The testimony of some of the other investors and general partners in ESLP indicated that it was the defendant who exercised all management authority. The offering memorandum used by the defendant for the sale of limited partnership interests in ESLP stated:
“Reliance on RIBADENEIRA. RIBADENEIRA will exercise full control over all activities of the Partnership. Participants will have no power over the conduct of Partnership operations. Accordingly, Participants must rely solely on RIBADENEIRA’S ability to manage the affairs of the Partnership.”
Although this statement was meant to apply to the purchase of limited partnership interests, in fact the evidence showed that it applied with equal vigor to interests purchased as general partnership interests. The ultimate success and control of the en deavor rested on defendant’s managerial and entrepreneurial skills. We hold the jury properly concluded the general partnership interest sold to Dr. Menhusen was the sale of a security.
INSTRUCTION 21
The defendant contends that the trial court erred in the giving of instruction 21. We agree, and we reverse the conviction of the defendant on count II of the third amended information.
Count II of the third amended information charged the defendant with certain unlawful acts in connection with the sale of units in NRRLP. In the bill of particulars filed at the behest of the defendant, the State indicated that among the actions alleged as a basis for the charge in count II was the failure to disclose to investors what occurred on an earlier offering described as made “on a best efforts minimum amount or none basis.”
The “best efforts minimum amount or none basis” offering was made in connection with the sale of units in NRRLP. The investors were told that any money invested would be held in a separate escrow bank account. They were further advised that a minimum sum of money would be raised, and if that amount was not raised by a certain date, all funds would be returned to the investors. In fact, the defendant did not deposit the funds in the separate account as promised, and the minimum amount required to be raised was not raised prior to breaking escrow. The State contended that the failure of the defendant to disclose this information to subsequent investors in NRRLP was a failure to disclose material facts.
Count II of the third amended information charged that the defendant in connection with the sale of securities to the NRRLP did
“directly or indirectly, employ devices, schemes or artifices to defraud, or make untrue statements or omit to state material facts necessary in order to make the statements made, in the light of circumstances under which they are made, not misleading or engage in an act, practice or course of business which operated or would operate as a fraud or deceit upon Gladys Anderson, Gerald Cass and Lois Ann Swartz.”
Instruction 13 advised the jury as follows:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant did one or more of the following:
“a. willfully and intentionally employed a device, scheme or artifice to defraud; or
“b. willfully made an untrue statement of material fact, or omitted to state a material fact; or,
“c. engage in an act, practice, course of business which would operate as a fraud upon one or more of the following individuals: Gladys Anderson, Gerard Kass, or Lois Ann [Swartz],
“2. That the unlawful act occurred in connection with the sale of a security, to wit: units of [NRRLP] ....
“3. That if the unlawful act was an omission to state a material fact, that the material fact was necessary in order to make other statements made to one or more of the following individuals: . . .; in the light of the circumstances under which they were made, not misleading.”
Instruction 21, of which the defendant complains, advised the jury as follows:
“You are instructed that when securities are offered as of this case, ‘$750,000 or NONE,’ the money or consideration received must be (1) promptly deposited in a separate bank account as agent for the person until the event or contingency occurs and then the funds are promptly transmitted to the persons entitled thereto or (2) all such funds are promptly transmitted to a bank which has agreed in writing to hold such funds in escrow for the persons who have beneficial interests therein and to transmit or return such funds directly to any person entitled thereto when the event or contingency has occurred. The failure of a broker or dealer to deposit in an agency or escrow account is a fraudulent, deceptive or manipulative practice. ” (Emphasis added.)
It is difficult to understand why instruction 21 was given in the matter under consideration. We are advised by both parties to this litigation that instruction 21 is simply a restatement of federal regulation 15c2-4, 17 C.F.R. § 240.15c2-4 (1990), of the Securities Exchange Act of 1934, 15 U.S.C. § 78 (1988). There is no question but that the failure of the defendant to comply with federal regulation 15c2-4 is a manipulative and deceptive act or practice under federal law. However, this case was not tried under federal law. The defendant was charged and tried for violating the statutes of the State of Kansas. While the defendant’s violation of regulation 15c2-4 may have been a manipulative or deceptive practice under federal law, no one has shown us where it has been defined as such under Kansas law. The instruction does not state the law of Kansas; it was clearly erroneous and inappropriate. We think the instruction clearly implies that the defendant has violated state law by his activities. This implication was incorrect and, in our judgment, highly prejudicial.
We believe the effect of the instruction is similar to what happened in State v. Puckett, 6 Kan. App. 2d 688, 634 P.2d 144 (1981), aff'd 230 Kan. 596, 640 P.2d 1198 (1982). In Puckett, the jury was instructed that certain actions by the defendant constituted fraud because of his failure to state a material fact, which fact was then stated to the jury. We held the instruction invaded the province of the jury and reversed, stating:
“The problem with the fraud instructions, exemplified by number 7, involves the first paragraph of each of the alternative portions of the instruction. Obviously, since this instruction was in the alternative, the jury could have found the defendant guilty on the first portion, or the second portion or the final portion of those instructions. That portion of the instruction preceding the first ‘OR’ is faulty for the following specific reason. Such instruction means to us that the jury was told that if it found the defendant did not reveal the facts of the carried interests that he was guilty of a scheme to defraud the investors. This would violate the right of the defendant to have the jury find that even though there was a failure to reveal the fact of the carried interests, such failure was not part of a scheme to defraud. Similarly under alternatives two and three of the instructions, the first paragraphs also instruct the jury that if they found the defendant did not reveal the facts of the carried interests that defendant was guilty of failure to disclose a material fact. The hotly contested issue in this case was whether the failure to disclose the fact of the carried interests was a failure to disclose a material fact. The trial judge specifically held that in view of the disputed evidence whether a carried interest was material was an issue for the jury. Yet the instructions take the issue of materiality from the jury and leave them only the issue of whether the defendant failed to disclose the carried interests. The jury was thus allowed to convict the defendant of a crime in the total absence of a finding of one of the necessary elements of the crime charged, i.e., materiality.
“Since we are unable to say that the jury would have convicted the defendant in the absence of the offending portion of the fraud instructions, it follows that those instructions are error, and that such error is of constitutional gravity.” 6 Kan. App. 2d at 701-02.
In the matter now before this court, instruction 21 has, we believe, an effect similar to the offending instruction in Puckett. As noted, instruction 13 is framed in general terms. Instruction 21, however, tells the jury that the failure of a broker or dealer to “deposit in an agency or escrow account is a fraudulent, deceptive, or manipulative practice.” Thus, the jury was told that, if it found that defendant failed to “deposit in an agency or escrow account,” he was guilty of a “fraudulent, deceptive, or manipulative act.” This is almost identical to the situation in Puckett, and it leads us to the same conclusion.
The State points out that it was not seeking to convict the defendant for having committed the acts which are described as fraudulent, deceptive, and manipulative in instruction 21. It was, it argues, only seeking to convict him of securities fraud for having failed to disclose that he committed the acts described in instruction 21. The State then argues that the trial judge instructed the jury as to what a material fact was in paragraph 6 of instruction 16. This is correct. The jury was advised in instruction 16 as follows: “6. ‘Material fact’ means that there is a substantial likelihood that a reasonable investor would consider it important in deciding whether to purchase securities.”
The State then argues that instruction 21 does not advise the jury that the failure to disclose the regulation 15c2-44 violation was a material fact.
We believe the State’s argument fails to appreciate the seriousness of the wrong done by the giving of instruction 21. This was a complex and somewhat confusing case which appears to have confused the judges and the attorneys and must also have been somewhat confusing to the jury. The jury is told by instruction 21 that defendant’s actions were fraudulent, deceptive, and misleading. The jury was instructed that a material fact was any fact that a reasonable investor would consider important in deciding whether to purchase securities. It is difficult to imagine how the jury could have concluded that a reasonable investor would not consider it important in deciding whether to purchase securities that the seller of those securities had committed a fraudulent, deceptive, and misleading act in connection with the sale of the securities. It is quite obvious to us, and must have been to the jury, that the failure to disclose fraudulent, deceptive, and manipulative acts must have been material.
Under the law of this state, the defendant’s actions in connection with the “breaking escrow” and his failure to keep a proper bank account were not fraudulent, deceptive, and manipulative as a matter of law. The jury should have been permitted to decide that issue. Instead, the jury was wrongfully told that defendant’s actions were improper, fraudulent, deceptive, and misleading as a matter of law. This instruction simply does not state the law of Kansas. The instruction invaded the province of the jury and was extremely prejudicial to the defendant.
The State further argues that, even assuming instruction 21 was erroneous, it is harmless error. The argument is that there were substantial alternative grounds on which the jury might have based its conclusion that defendant committed unlawful acts in selling NRRLP units to Anderson, Cass, or Swartz. This argument is, for the most part, an argument that the jury would have convicted him anyway, and, as a result, instruction 21 is harmless error. We disagree.
There were no special questions submitted to this jury, and the guilty verdict under count II is a general verdict. For that reason, we have no way of knowing why the jury convicted the defendant on count II. The Kansas Supreme Court in Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 524 P.2d 1194 (1974), faced a situation very similar to the issue at bar. In Franklin, the jury was given an instruction which was erroneous as a matter of law. In reversing, the Kansas Supreme Court based its decision on the fact that the verdict returned was a general verdict. The court stated:
“Under the rules of law this court should disregard errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining. [Citations omitted.] Misleading instructions given may become immaterial where it conclusively appears from special findings that the jury was not influenced thereby. [Citation omitted.] It has been said a general verdict in a case resolves all controversial issues in favor of prevailing party. [Citations omitted.]
“However, the difficulty we find in applying the foregoing rules in this case stems from the refusal of the trial court to submit special questions. There are no special findings from which to determine lack of prejudice. Here two of three theories of recovery were tried to a jury upon a general verdict with erroneous charges. It seems obvious in this case that the rules as to nonprejudicial error cannot be applied. In fairness and justice we must hold under the circumstances of the case the general verdict cannot be upheld. To hold otherwise would require speculation and conjecture that the general verdict was on the proper theory and not on improper theories.” 215 Kan. at 314-15.
The court continued:
“We state the rule as follows: In the absence of special findings by the jury, when an instruction is given on a theory of a case which is erroneous as a matter of law and the instruction is inclined to lead the jury to attach undue significance to evidence bearing upon another theory properly submitted, a reversal is required in the interest of fairness, even though the jury returned a general verdict. [Citations omitted.]” 215 Kan. at 315.
In State v. Spears, 246 Kan. 283, 788 P.2d 261 (1990), the Kansas Supreme Court reversed a criminal conviction on the basis of a misleading jury instruction. Although the court noted that the likelihood of prejudice was low due to overwhelming evidence, it had no way of guaranteeing the jury did not return a guilty verdict based on the erroneous instruction.
In the instant matter, we have no way of guaranteeing that the jury did not return a guilty verdict based upon erroneous instruction 21. For that reason, we have no choice but to reverse the defendant’s conviction on count II and remand for a new trial.
INSTRUCTIONS 12 AND 13
The defendant contends that his conviction on count I of the information should be reversed because of instructions 12 and 13 given to the jury. We do not agree.
Instruction 12 reads as follows:
“Defendant is charged in Count I with the crime of Unlawful Acts in Connection with the Offer, Sale, or Purchase of Securities. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant did one or more of the following:
“a. willfully and intentionally employed a device, scheme or artifice to defraud Monty [Menhusen]; or,
“b. willfully made an untrue statement of material fact, or omitted to state a material fact; or,
“c. engaged in an act, practice, [or] course of business which would operate as a fraud upon Monty [Menhusen].
“2. That the unlawful act occurred in connection with a sale of percentage of the General Partnership Interest in Emporia Street Limited Partnership, to Monty [Menhusen].
“3. That the general partnership interest sold to Monty [Menhusen] was a security.
“4. That if the unlawful act was an omission to state a material fact, that the material fact was necessary in order to make other statements made to Monty [Menhusen], in the light of the circumstances under which they were made, not misleading; and
“5. That the act occurred on or about the 17th day of June, 1985, in Sedgwick County, Kansas.”
Instruction 13 is identical to instruction 12 with the following exceptions: different victims are identified, the dates of the sales are changed, and the security involved is identified as units of NRRLP. Otherwise, the instructions are identical.
The defendant contends the instructions are erroneous because they are drafted so as to presume a scheme to defraud or to presume that any misrepresentations or omissions were “material.” This, the defendant argues, invades the province of the jury to determine what was fraudulent and what was material.
At trial, the defendant did not object to the giving of instructions 12 and 13. As a result, our standard of review is to determine whether the instructions were “clearly erroneous.” State v. Puckett, 6 Kan. App. 2d at 693. “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977).
The defendant relies on State v. Puckett as the principal support for his argument. His reliance is erroneous. In Puckett, we held the instruction improper because it essentially advised the jury that, if defendant failed to reveal certain facts, he was guilty of fraud. The instructions further advised the jury that the failure to disclose was a material fact. We held that the question of what was fraud and what facts were material were decisions to be made by the jury. An instruction which foreclosed this decision-making process was erroneous and invaded the exclusive factfinding domain of the jury.
We hold that Puckett is not controlling. The instructions complained of in the matter under consideration are not clearly erroneous. They do not purport to tell the jury that any action by defendant constitutes fraud or that any facts either disclosed or withheld are material. The decision on those factual questions is left with the jury. The complained-of instructions were correct and properly given. They are not clearly erroneous and do not require a reversal of defendant’s conviction.
DID THE TRIAL COURT ERR IN SENTENCING?
Defendant contends that the trial court erred in refusing to grant him probation. Defendant points out that he was convicted of class E felonies, which are his first and only convictions. He argues that the trial court failed to follow the presumptive sentence of probation statute and that, because the State failed to overcome this statutory presumption, the court erred in sentencing him to prison.
The presumption of probation statute in effect at the time of these offenses was K.S.A. 1985 Supp. 21-4606a. See State v. Sylva, 248 Kan. 118, 121, 804 P.2d 967 (1991). That statute provides that the presumptive sentence of a first time class E felon is probation. However, we have held that this presumption can be overcome by evaluating all of the circumstances and factors contemplated by K.S.A. 21-4601 and K.S.A. 21-4606. State v. Tittes, 245 Kan. 708, 715, 784 P.2d 359 (1989).
We have examined the record of the present controversy and find that the question of sentencing was very thoroughly considered. There are over 20 pages of transcript devoted to the question of whether the presumption of probation could be overcome. Defense counsel discussed each factor listed in K.S.A. 21-4606. The State then addressed and rebutted the arguments of the defendant. The State and defendant debated all of the elements that are involved in deciding whether to impose the presumptive sentence.
Our standard of review of a denial of presumptive probation is abuse of discretion. State v. VanReed, 245 Kan. 213, 217, 777 P.2d 794 (1989). Based on the record before us, we cannot say the trial court abused its discretion. The issues involving presumptive probation were discussed and considered by the court. The trial court considered all of the facts and concluded that the presumption of probation had been overcome. We agree and affirm that decision.
WAS THE INFORMATION DEFECTIVE?
The defendant contends that the information filed in the action was defective, thereby depriving the trial court of jurisdiction. We note that no fewer than three amended informations were filed in this action. The defendant was tried on the third amended information, and we focus on that particular information.
The defendant argues that the information is defective in failing to allege specific facts and details. He maintains that the information failed to inform him of what facts he had to defend against, such as how the frauds were committed, what statements made were material, what omitted statements were material, etc.
A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time. The sufficiency of the information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Although the accused has the right to know the nature of the charges against him, the information need not set forth all of the specific evidentiary facts relied upon to sustain the charge. If the allegations in an information charge an offense in the language or meaning of a specific statute, the information is sufficient. State v. Bird, 238 Kan. 160, 166-67, 708 P.2d 946 (1985); see State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985).
Tested by the rules set forth above, the information is not defective, and defendant’s argument lacks merit.
The information in this case charges the crime of securities fraud in the language of K.S.A. 17-1253, which defines that crime. The Kansas Supreme Court, in State v. Bird, 238 Kan. at 167, said:
“This court has repeatedly held that an information which charges an offense in the language of the statute is sufficient. State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985); State v. Lucas, 221 Kan. 88, 89, 551 P.2d 1296 (1976); State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308 (1974).”
We see no reason to belabor the point. The information in this case charges the offense in the language of the statute, and it is sufficient.
The defendant’s objections go more to the specificity of the language employed in the information. He complains of the lack of facts and details. As the court said in State v. Bird, 238 Kan. 166: “[T]he information need not set forth all the specific evidentiary facts relied on to sustain the charge.” A defendant who wants to know the “manner or means” specified to aid him in his defense may request a bill of particulars pursuant to K.S.A. 22-3201(5), and his failure to do so waives the objection. State v. Bird, 238 Kan. at 167. The defendant in the instant matter requested and received a bill of particulars. We have examined the bill of particulars and hold that whatever “specificity” the information lacked was supplied by the bill of particulars.
Defendant argues that securities fraud is a specific intent crime and the information fails to allege the element of scienter. We do not agree. We stated in State v. Kershner, 15 Kan. App. 2d 17, 20, 801 P.2d 68 (1990):
“Defendant argues that the crimes with which he was charged were specific intent crimes but, due to the trial court’s erroneous interpretation of ‘willful’ under K.S.A. 17-1267(a), the State did not sustain its burden of proof.
“While the Kansas Securities Act does not define ‘willful,’ our Supreme Court has. No specific intent is required where one violates■ the Securities Act ‘except the intent to do the act denounced by statute.’ State v. Hodge, 204 Kan. 98, 107, 460 P.2d 596 (1969).
“ ‘Willfully’ under 17-1267 means the defendant acted intentionally in the sense that he was aware of what he was doing. State v. Puckett, 6 Kan. App. 2d 688, 699, 634 P.2d 144 (1981), aff'd 230 Kan. 596 (1982). Sister states have also found that specific intent is not required to sustain a conviction under similar statutes. See, e.g., State v. Fries, 214 Neb. 874, 337 N.W.2d 398 (1983); State v. Sheets, 94 N.M. 356, 610 P.2d 760 (1980).” (Emphasis added.)
In the case under consideration, the information specifically alleges that défendant acted willfully. Since securities violations are not specific intent crimes, this is all that was required. Based on Kershner, defendant’s argument in this regard is without merit.
WAS DEFENDANT SUBJECTED TO UNCONSTITUTIONAL DOUBLE JEOPARDY?
The defendant next argues that his conviction cannot stand because it violated his right to be free from double jeopardy. The double jeopardy argument is based upon the occurrence of two unrelated events.
The defendant was convicted on the second effort of the State to try him on the charges. The first attempt ended in a mistrial being declared after the jury was impaneled and sworn but before any evidence was presented.
After the jury was impaneled, both sides pointed out that the trial court had only permitted them three peremptory challenges. Since the law clearly permits six such challenges per side, it became immediately obvious that an error had occurred. The court proposed calling six additional jurors and then allowing each side to exercise their remaining peremptory challenges against those six potential jurors. This proposal was not satisfactory, and, at this point, both the State and the defendant jointly moved for a mistrial. This motion was granted by the court.
Under the law, jeopardy attaches when a jury is impaneled and sworn. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977). In this matter, the jury had been impaneled when the mistrial was granted and defendant had been placed in jeopardy.
Under the circumstances presented, it appears that defendant was twice placed in jeopardy. The question is whether, under the facts, that was a violation of defendant’s constitutional rights. There are several circumstances in which a second trial may be had after a mistrial has been declared.
One common standard employed in resolving an issue of this nature is whether the mistrial was declared due to manifest necessity. When circumstances manifest a necessity for doing so, a trial court may, in its sound discretion, declare a mistrial, discharge the jury, and require a defendant to stand trial before another jury where failure to do so would defeat the ends of justice to either or both parties. State v. Bates, 226 Kan. 277, Syl. ¶ 5, 597 P.2d 646 (1979). We do not reach the question of manifest necessity.
Another exception to a double jeopardy claim on a second trial is when the first trial was terminated because of some action on the part of the defendant. See State v. Bates, 226 Kan. at 283. A defendant who successfully moves for a mistrial because of prosecutorial or judicial misconduct may not invoke double jeopardy against a second trial unless the misconduct giving rise to the mistrial was intended to provoke the defendant into moving for a mistrial to begin with. Oregon v. Kennedy, 456 U.S. 667, 679, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982).
In the matter under consideration, the mistrial was granted on the joint motion of both parties. The defendant is in no position to move for a mistrial, under the circumstances shown, and then argue that his second trial constitutes double jeopardy. The law would require a defendant under these circumstances to show that the trial court intentionally deprived him of three peremptory challenges to provoke him into requesting a mistrial. There is nothing in the record to even suggest that the trial court’s actions were designed to provoke defendant. We hold that, on the facts shown, defendant’s constitutional right against being placed in double jeopardy was not violated by the actions of the trial court in granting defendant’s motion for a mistrial.
The defendant next argues that, after the jury was impaneled in the second trial, the trial judge dismissed count I of the second amended information and, thereby, acquitted him. Defendant argues that, under the rules of Lowe v. State, 242 Kan. 64, 744 P.2d 856 (1987), the State should not have been allowed to amend the information and place defendant on trial under that information.
In Lowe v. State, the defendant was being tried on one count of theft and one count of burglary. After the State had rested its case, the trial court dismissed the theft charge on the grounds that the evidence was insufficient. The next day, the trial court changed its mind and reinstated the charge. Our Supreme Court held that the reinstatement of the theft charge placed the defendant in double jeopardy and reversed his conviction.
“It is conceded that in the present case jeopardy had attached in the original trial and the dismissal constituted an acquittal of the theft charge. The reinstatement of the theft charge the next day and its submission to the jury constituted ‘further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged’ which, under Smalis, constituted a violation of the prohibition against double jeopardy.” Lowe v. State, 242 Kan. at 67.
In reversing, our Supreme Court relied on the decision in Smalis v. Pennsylvania, 476 U.S. 140, 90 L. Ed. 2d 116, 106 S. Ct. 1745 (1986). In that case, the trial court sustained a demurrer to the State’s evidence at the close of its case. The question was whether the State could appeal that decision. The United States Supreme Court held that sustaining the demurrer had the effect of acquitting the defendant, and the State’s appeal was barred by double jeopardy. The Court explained:
“The Commonwealth argues that its appeal is nonetheless permissible under Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 [, 80 L. Ed. 2d 311, 104 S. Ct. 1805] (1984), because resumption of petitioners’ bench trial following a reversal on appeal would simply constitute ‘continuing jeopardy.’ . . . But Lydon teaches that ‘[a]cquittals, unlike convictions, terminate the initial jeopardy.’ 466 U.S., at 308. Thus, whether the trial is to a jury or to the bench, subjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause. Arizona v. Rumsey, 467 U.S. 203, 211-12 [, 81 L. Ed. 2d 164, 104 S. Ct. 2305] (1984).” 476 U.S. at 145.
The key element in Lowe and in Smalis was the acquittal of the defendant by the trial court after the State had rested its case. Thus, the question at hand is whether the trial court’s action in the instant matter amounted to an acquittal.
Although the record is confusing, it appears to us that the trial court’s action in this case did not have the effect of acquitting the defendant. Under the facts presented, the action of the trial court could not have been an acquittal based on the insufficiency of the State’s evidence. The action was taken prior to any evidence being submitted by either side. This fact alone distinguishes it from Lowe and Smalis, when the court acted after the State had rested its case.
Our examination of the record indicates that defendant was not seeking an acquittal in pursuing his motion to dismiss. His principal argument was that the information was deficient and did not charge the crimes with sufficient specificity. The trial court agreed and held that the information did not charge the crimes for which defendant was bound over and permitted the State to amend to correct that error. The court, in attempting to explain its action, stated:
“THE COURT: Well with respect to Counts 3 and 4, well, of course the burden of proof remains with the State at all times. He has to show whatever exemptions he is entitled to under that and I don’t think he is required to do that because exemptions are not set forth in the act. As in the rape case where it says a person not his wife, or not married to that person, then, that’s in the facts itself so the State has to prove the negative there. So I think Counts 3 and 4 are all right.
“I think Count 2 is all right but I don’t think Count 1 is. I will sustain the motion as to Count 1 because it doesn’t charge what he sold. I mean— in other words this is just the same if I charge Johnson from stealing from Bill Smith, I have got to define in that Count 1 that he stole his car or his chickens or whatever and this count doesn’t do it. I assume the State wants to move to amend?
“MR. WALTER: Move to amend Count 1 to conform with the bill of particulars: Beginning on the —
“THE COURT: Well, to conform to the evidence at the preliminary hearing.
“MR. WALTER: And to conform to the bill of particulars but specifically after the word in connection with the offer of sale the purchase of securities we would insert language that says, to wit, an interest in a limited partnership, Emporia Street Limited Partnership and a general partnership.
“THE COURT: Well, I will allow you to amend in accordance with the evidence at the preliminary hearing.
“MR. WACHTEL: My understanding of your ruling, and please correct me if I am wrong, my motion was to dismiss Count 1 and if your Honor did, is that your ruling?
“THE COURT: Well, I dismissed it subject to their being able to amend it or maybe you should say not dismiss it but I sustained your objections to it because I am in an awkward position on jeopardy here.
“THE COURT: Well, my dismissal was purely to the form of it and not to the effect that he was improperly bound over. He was bound over on a charge [on] which sufficient evidence was placed. He has never been charged correctly with respect to that binding over is what my ruling is.”
Although somewhat confusing, the trial court’s action amounted to a granting of defendant’s motion for specificity. The amendment permitted by the State simply specified that the crimes charged in count I were related to the sale of interests in ESLP and NRRLP. The information found wanting by the court charged thie defendant with fraud but failed to specify what specific items the fraud concerned. The court’s action corrected that situation.
The defendant’s reliance on Lowe and Smalis is misplaced. Those were actions in which the State had presented its evidence and rested. After the State rested, the trial court found the evidence wanting and took action to acquit the defendant. This did not happen in this lawsuit. The trial court was acutely aware of the jeopardy argument and did not take any action that can be construed as acquitting the defendant. In essence, the trial court agreed with defendant that the information was too vague, lacked specificity, and did not charge the crimes defendant was bound over on. This case is similar to State v. Love, 5 Kan. App. 2d 768, Syl. ¶ 1, 625 P.2d 7, rev. denied 229 Kan. 671 (1981). In that case, the defendant’s conviction was reversed because the information was defective and failed to give the court jurisdiction. We held: “Double jeopardy is not a bar to a second criminal prosecution based upon the same criminal act that resulted in a previous conviction when the judgment entered on the previous conviction had been arrested because the trial court lacked jurisdiction.”
The trial court in the instant matter, at most, dismissed a defective information which would have deprived it of jurisdiction. The filing of an amended information by the State did not, under these facts, subject the defendant to unconstitutional double jeopardy.
IS DEFENDANT ENTITLED TO A PRELIMINARY HEARING AND A NEW TRIAL ON COUNT I?
In the previous section, we dealt with the ramifications of the trial court’s action concerning count I of the third amended information. The defendant extends his complaints about that action by now claiming that the trial court lost jurisdiction over him by its actions and must now start over by giving him a new preliminary hearing on count I. We conclude defendant’s argument is without merit.
The defendant’s argument is somewhat duplicitous. On the one hand, he argued long and hard at the trial level, and on appeal, that the information was so defective that the trial court failed to acquire jurisdiction. He now complains that action taken by the trial court to rectify his original complaint resulted in a loss of jurisdiction. We can only remark, charitably, that defendant is attempting to “cover all of the bases.”
We view the action taken by the trial court as action intended to avoid loss of jurisdiction due to a defective information. That action did not violate defendant’s rights against double jeopardy and neither does it entitle him to a new trial and a new preliminary hearing. The information was amended to conform it to the crimes for which defendant was bound over. Neither the trial court’s action nor the State’s amendment of the information resulted in a loss of jurisdiction. We hold defendant’s argument in this regard to be unavailing.
WAS IT ERROR TO PERMIT THE STATE TO AMEND THE INFORMATION?
The defendant’s next issue concerns count II of the information.
Count II originally charged the defendant with committing fraud and deceit in connection with the “offer, sale or purchase of securities to the North Rock Road L.P. . . . which operated or would operate as a fraud or deceit upon North Rock Road L.P.” The second amended information, which was never filed, simply restated the original language and, after “deceit upon NRRLP,” added the words, “Specifically but not limited to Gladys Anderson, Gerald Cass, and Lois Ann Swartz.” The third amended information, upon which defendant was tried, eliminated the words “would operate as a fraud or deceit upon NRRLP” and added “would operate as a fraud or deceit upon Gladys Anderson, Gerald Cass, and Lois Ann Swartz.”
The defendant argues that the third amended information was amended in such a manner as to charge a new crime. Defendant states that, as originally drawn, the information charged him with committing securities fraud on NRRLP. The third amended information, he insists, charges him with defrauding Anderson, Cass, and Swartz — a new crime.
K.S.A. 22-3201(4) provides: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” (Emphasis added.)
The question is twofold: (1) Did the amendment charge a new or additional crime? and (2) Were the substantial rights of the defendant prejudiced?
We conclude that both questions must be answered in the negative. Under the circumstances, it was within the discretion of the trial court to permit the amendment, as to both form and substance, after the arraignment and plea but before the commencement of trial. State v. Osburn, 216 Kan. 638, Syl. ¶ 1, 533 P.2d 1229 (1975).
Under the settled law of this State, adding words to an information which changes the method by which the particular crime was committed does not charge a new additional crime. State v. Saylor, 228 Kan. 498, 504, 618 P.2d 1166 (1980). See State v. Bell, 224 Kan. 105, 106, 577 P.2d 1186 (1978); State v. Lamb, 215 Kan. 795, 798, 530 P.2d 20 (1974).
In the case under consideration, the court permitted the State to amend by adding the names of three investors of NRRLP who were defrauded. The change was made in response to defendant’s objections and to conform the information to the evidence presented at the preliminary hearing. We do not consider the amendment to charge a new or additional crime.
The information originally charged defendant with securities fraud. The amended information also charged securities fraud but with more specificity as to who was defrauded. The original information charged defendant with having defrauded NRRLP. This amounted to a charge of fraud against all of the partners in NRRLP. The amendment merely named specifically some of those partners. It did not name different victims, merely more specific ones.
In addition, there is no prejudice shown to defendant by the amended information. The addition of the three victims’ names was certainly no surprise to the defendant. He was present throughout the preliminary hearing and heard the evidence of the State which was offered to show how he defrauded Anderson, Cass, and Swartz. The bill of particulars filed by the State also detailed the alleged defrauding of the three individuals named. The defendant fails to show how he was prejudiced by the amended information.
In order to obtain a reversal of his conviction on the grounds asserted, defendant must show that a new or additional crime was charged and that he was prejudiced by the amendment permitted. He has shown neither.
PRELIMINARY HEARING
The defendant next argues that there was insufficient evidence presented at the preliminary hearing to justify binding him over for trial.
Although we consider this contention to be without merit, we do not believe it is properly before us.
The sufficiency of a preliminary hearing may only be challenged by a motion to dismiss or to grant appropriate relief. State v. Smith, 215 Kan. 34, 37, 523 P.2d 691 (1974). Under K.S.A. 1990 Supp. 22-3208(4), a “motion to dismiss shall be made at any time prior to arraignment or within 20 days after the plea is entered.” The Supreme Court in Smith held that a failure to raise the sufficiency of the preliminary hearing by such a motion within 20 days after arraignment constitutes a waiver and precludes review on appeal. State v. Smith, 215 Kan. at 37.
In the matter now before us, the defendant waived arraignment and entered a plea of not guilty. He filed no motion within 20 days of his arraignment as required by K.S.A. 1990 Supp. 22-3208(4). We hold that, pursuant to the holding in Smith, defendant is precluded from raising this issue for the first time on appeal. See State v. Matzke, 236 Kan. 833, 838-39, 696 P.2d 396 (1985); State v. Lashley, 233 Kan. 620, 623-24, 664 P.2d 1358 (1983); State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980).
WAS THE TRANSFER OF UNITS IN NRRLP TO DR. MENHUSEN A SALE?
One of the transactions proven by the State was the transfer of units in NRRLP to Dr. Menhusen. The State contended this transfer was a sale. The defendant insists that it was not.
This issue is germane to the question of whether defendant came within the isolated transaction exemption under K.S.A. 17-1262 and K.A.R. 81-5-3. Under the exemption provided, the defendant could have made no more than five sales of securities per year without being registered as a broker/dealer with the Kansas Securities Commission (KSC). The information in count III charged defendant with sales made while not being registered as a broker/dealer as required by law.
The facts show that the defendant sold an interest in NRRLP to Menhusen for $10,000. Menhusen made the check payable to the defendant, who then deposited the check in his personal bank account. Since the shares purchased by Menhusen came from NRRLP itself, the defendant then wrote a check to NRRLP for $10,000.
The defendant argues that no sale could have taken place as a matter of law because he made no gain or profit on the transaction.
The question of whether the transaction with Menhusen was or was not a sale was clearly a question of fact to be decided by the jury. We are aware of no authority, and none is cited to us, which indicates that a transaction is not a sale unless a profit is made. The facts clearly show that Menhusen purchased an interest in NRRLP for $10,000 and that the defendant sold him that interest. A “sale” under K.S.A. 17-1252(h)(1) is the sale of a security “for value.” The defendant received $10,000 for the interest sold to Menhusen. The receipt of $10,000 for a security is clearly something of “value.” The determination of whether this was a “sale” turned on whether it was made by the defendant “for Value"; it has nothing to do with whether he made a profit. Thus, the argument that no sale took place since defendant paid the $10,000 back to NRRLP is without merit.
We hold that the evidence was clearly sufficient to show that the transfer made to Menhusen was a sale within the meaning of the Kansas securities laws.
INSTRUCTIONS ON COUNTS III AND IV
The defendant next argues that the instructions on counts III and IV were erroneous. His principal contention is that the manner in which the instructions were numbered and given unduly emphasized the State’s case and de-emphasized his. In summary, defendant appears to argue the instructions were biased against him.
As was the case in defendant’s earlier objection to instructions, the record shows the objection was not raised to the trial court. The question, therefore, for our decision is whether the instructions were clearly erroneous. We hold they were not.
Instructions 14 and 15 advised the jury, respectively, that defendant was charged with the crimes of selling securities when not registered as a broker/dealer and with selling securities not properly registered with the KSC. Both instructions tell the jury the alleged sales, concerning units of NRRLP, were made to Lois Ann Swartz or Ruth Gerstner and were made August 5, 1985, through August 8, 1985, in Sedgwick County.
The defendant was charged in counts III and IV with registration violations under K.S.A. 17-1254 and 17-1255. These violations concerned the sale of units of NRRLP to Lois Ann Swartz and/or Ruth Gerstner in count III and the sale of units of NRRLP to Gladys Anderson, Gerald Kass, Lois Ann Swartz, and/or Ruth Gerstner in count IV.
Any sale of a security while the seller is unregistered is a violation of the law. However, because of the isolated transaction exemption, such sales are not criminal until they exceed 5 in a 12-month period. The defendant relied on the isolated transaction exemption as a defense to counts III and IV. He complains that instructing the jury on the State’s case without reference to his affirmative defense was error. The jury was instructed on defendant’s isolated transaction defense by instructions 19 and 20. The defendant complains about instructing on the State’s case first and not calling the attention of the jury to instructions 19 and 20 within instructions 14 and 15.
We see no reversible error in the defendant’s position on instructions 14 and 15. Instructions 14 and 15 set out properly the elements of the crimes of selling unregistered securities and selling as an unregistered broker/seller as defined by K.S.A. 12-1254 and 12-1255. Each instruction clearly states the burden of proof was on the State.
We see no merit in defendant’s claim that instructions 14 and 15 unduly emphasize the State’s case. When determining the propriety of instructions, our standard of review requires us to examine all of the instructions together, and, if one side is not emphasized more than the other, there is no error. See Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986). The instructions setting forth the isolated transactions defense recounted the exact requirements of K.A.R. 81-5-3 that were in effect during the time frame in question.
Our review convinces us that the instructions of counts III and IV correctly and fairly stated the law. In reviewing all of the instructions, we do not find that defendant was prejudiced in any way by a bias in favor of the State. We hold that the instructions for the State were not emphasized more than were the instructions for the defendant.
The defendant argues that the evidence showed only 5 sales of units of NRRLP in a 12-month period and, thus, defendant should have been acquitted. We do not agree. The State’s evidence showed 6 sales of units of NRRLP in a 12-month period— enough to overcome the affirmative defense of the isolated transaction exemption.
DOES THE REVERSAL OF COUNT II REQUIRE US TO REVERSE COUNTS III AND IV?
We have reversed the defendant’s conviction on count II because of the erroneous giving of instruction 21. The defendant submits that, if count II is reversed, it would require the reversal of counts III and IV. We do not agree.
The defendant’s argument again goes to the isolated transaction defense. He argues that, in order to convict him on counts III and IV, the State must prove that he sold at least six units of NRRLP. Thus, he argues a reversal of count II will mean he was only guilty of five sales and is exempt from criminal liability.
We fail to see any connection between the affirmative defense to counts III and IV and the crime charged in count II.
In count II, the. defendant was charged with selling securities through the use of fraud, deceit, material misrepresentations, and omission of material facts. The isolated transaction defense is not a defense to the crime charged in count II. The law exempts one from criminal liability for selling securities while unregistered if those sales number less than 6 in a 12-month period. However, use of fraudulent devices to sell securities is a crime regardless of whether there are 1 or 100 sales involved.
While we may have reversed the defendant’s conviction for fraud on count II, it does not mean that the defendant did not make the sale in question. That sale may be used to overcome the isolated transaction defense and convict on counts III or IV. We simply see no connection or interrelation between the two.
The errors found as to count II are in no way interrelated to a claim of exemption under counts III and IV or to the total number of NRRLP sales which form the basis for defendant’s convictions under counts III and IV. We hold defendant’s argument to be without merit.
The defendant’s conviction on count II is reversed, and the matter is remanded for a new trial on the allegation of count II. The defendant’s convictions on counts I, III, and IV are affirmed.
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Davis, J.:
Defendant Harry Jene Fuller appeals his conviction for sale of marijuana (K.S.A. 65-4127b[b][3]) on the grounds that (1) the trial court erred by admitting the results of marijuana identification tests without requiring sufficient foundation and (2) the trial court erred in refusing to give a cautionary instruction regarding the testimony of a paid confidential informant. We reverse and remand on both issues.
The defendant was convicted of selling marijuana to a confidential informant for the Salina Police Department. S.B. testified that he called Detective Michael Marshall, his police contact, after setting up the buy. Marshall met S.B. at a park, searched S.B. and his car, and equipped S.B. with a wire.
Detective Marshall followed S.B. in a separate car to the defendant’s home. Marshall lost sight of S.B. only while Marshall was parking his car. S.B. testified that he went inside the defendant’s home and told the defendant he wanted to buy marijuana. S.B. made the purchase after a short discussion over price.
Detective Marshall testified that he was parked approximately 150 to 200 feet from the defendant’s mobile home during the buy and could not see the front door of the defendant’s home. The wire did not work while S.B. was inside conducting the buy, so Marshall relied on S.B.’s account of the buy.
S.B. testified that after he left the defendant’s home, he drove to a local airport followed by Detective Marshall. S.B. handed Detective Marshall the bag of marijuana, which was later introduced into evidence, and the change from the buy. Detective Marshall searched S.B. and his car.
S.B. testified that he had agreed to work as a confidential informant after he was arrested for selling drugs. He had agreed to make undercover buys and testify at trial for the police department. The drug charges against S.B. were dropped after he made a couple of buys. At the time of trial, S.B. had made over twenty buys for the police. After he had made a few buys, the police began to pay S.B. for each buy. At first the police paid him $25; later they paid $50.
S.B. further testified on cross-examination that he had a history of drug use and treatment, including use after his arrest, but not while he was working as an informant. He also had á bad check conviction for which he had paid restitution.
Lieutenant Harold Bonawitz testified that he had tested the contents of the bag using techniques he learned at a four-day training session held by the Kansas Bureau of Investigation. At the time of trial, Bonawitz had tested over 200 marijuana samples, and testified as an expert in marijuana identification between 100 and 150 times. Lieutenant Bonawitz testified about the marijuana testing procedures and positive test results in this case. At trial, the defendant objected to Bonawitz’s qualifications to testify as to the reliability of the testing procedure he had used and the results of the tests.
The defendant did not testify. In addition to Sergeant Soukup, who was called to verify chain of custody, the State called three witnesses: S.B., Detective Marshall, and Lieutenant Bonawitz. At the close of the testimony, the defendant requested a confidential informant jury instruction, which the trial court rejected.
The foundation for admissibility of marijuana identification tests.
Defendant argues that the trial court allowed the State to introduce the results of the marijuana tests without requiring it to establish that the tests are generally accepted as reliable within the scientific community. The State argues that sufficient foundation was established for the admission of the marijuana tests.
The general test for admission of scientific evidence was established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which was later adopted by Kansas in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). The Frye test requires that, “before expert scientific opinion may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” State v. Miller, 240 Kan. 733, 736, 732 P.2d 756 (1987).
K.S.A. 60-456(b) is a further limitation on the introduction of scientific opinion. Testimony by expert witnesses is limited to the “scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-456(b)(2). The fact that a person is qualified to testify as to the results of a test does not necessarily qualify that person to testify about the reliability of the test in general. See Miller, 240 Kan. at 734-35.
Miller involved an appeal by the State on a question reserved, pursuant to K.S.A. 1986 Supp. 22-3602(b)(3). The defendant in Miller had been charged with possession of marijuana and drug paraphernalia. 240 Kan. at 733. The prosecution had relied on marijuana identification techniques similar to those used in the present case. At trial, the defense objected to testimony by the officer who had performed the tests on the grounds that the State had not laid sufficient foundation. The defense argued that the State had to first prove that “the methodology used in making the test was generally accepted in the scientific community.” 240 Kan. at 734.
The trial court in Miller sustained defendant’s objection and required the State to present a qualified expert to testify as to the reliability of the tests. After a recess, the State called the laboratory administrator for the Kansas Bureau of Investigation to testify that the tests were reliable and generally accepted in the scientific community. 240 Kan. at 734-35. The court then allowed the testing officer to continue.
While the testing officer’s qualifications to testify as to the reliability of the marijuana tests were not directly at issue in the Miller case, Miller cites with approval the Frye test. State v. Miller, 240 Kan. at 736.
The State in this case failed to establish that Lieutenant Bonawitz was qualified to testify as an expert in the field of marijuana identification techniques or as to the general acceptance of the marijuana identification techniques used by him. The State did little more than introduce Bonawitz and then ask him whether the tests he used were generally recognized as the standard tests for the identification of marijuana. Bonawitz testified that he had 16 years’ experience with the police department as a shift supervisor and as a firearms, handgun, and self-defense instructor, and does marijuana analysis for the department. Bonawitz took a four-day course in marijuana identification at the Kansas Bureau of Investigation and has examined over 250 samples and testified between 100 and 150 times as an expert in marijuana identification.
The defense correctly argues that Bonawitz was only qualified to testify as to the operation of the tests. Bonawitz is not qualified to testify that the tests he used were generally accepted as reliable in the scientific community as required by Frye. In his testimony, Bonawitz answered that the techniques he used were “standard.” However, “standard” is not synonymous with “reliable.” Under these circumstances, the State did not establish that Bonawitz had the background or knowledge on which he could have based an opinion as to the reliability of the test as required by Frye and K.S.A. 60-456(b)(2). Accordingly, the trial court erred by allowing the test results into evidence.
The State further argues that admission of the evidence does not require reversal if we are willing to take judicial notice of the reliability of the. marijuana identification techniques employed by the State. In selected cases, scientific technique is “’so broadly and generally accepted in the scientific community that a trial court may take judicial notice of its reliability. Such is commonly the case today with regard to ballistics tests, fingerprint identification, blood tests, and the like.’” Tice v. Richardson, 7 Kan. App. 2d 509, 511, 644 P.2d 490 (1982) (quoting State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 [1981]). The fact that the trial court did not take judicial notice does not preclude an appellate court from doing so. State v. Wolfe, 194 Kan. 697, 698, 401 P.2d 917 (1965).
Kansas has not taken judicial notice of the reliability of marijuana testing. In Miller, the court discussed judicial notice of the reliability of marijuana testing. Miller, 240 Kan. at 738-39. Rejecting the idea that judicial notice could be taken of the reliability of such tests, Miller said that the State had made no showing that the method was “so generally acceptable throughout the scientific community in this country that the Kansas courts should take judicial notice of the reliability of the test and thus avoid the necessity of laying a foundation.” 240 Kan. at 738. The record in this case establishes the State made no showing that the tests used were so generally accepted that the court should take judicial notice of the reliability of the tests.
The majority of states considering this question, like Kansas, admit marijuana testing only after a foundation is laid for the introduction of the results of the test. See, e.g., People v. Escalera, 143 Misc. 2d 779, 786, 541 N.Y.S.2d 707 (N.Y. Crim. Ct. 1989) (long discussion of the evidence each side presented in briefs for the admission or exclusion of the results of Duquenois-Levine marijuana identification test); People v. Jackson, 134 Ill. App. 3d 785, 481 N.E.2d 1222 (1985); State v. Williams, 471 So.2d 255 (La. App. 1985); State v. Shelli, 675 S.W.2d 79 (Mo. App. 1984). Contra State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980) (trial court rejected Duquenois-Levine test, saying it was not generally accepted as reliable).
We conclude that Miller controls and do not take judicial notice of the reliability of marijuana identification tests. We further conclude that the trial court abused its discretion by admitting Lieutenant Bonawitz’s testimony on the results of the tests without a proper foundation. As Kansas courts have pointed out many times in the past, “lay jurors tend to give considerable weight to ‘scientific’ evidence presented by ‘experts.’ ” See, e.g., State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 698, 648 P.2d 249 (1982), aff'd 233 Kan. 223 (1983). This evidence “carries the mantle of impartial physical, or objective, fact.” 7 Kan. App. 2d at 698. Additionally, “[i]t is the general acceptance in the expert’s particular field of science which assures the validity of the scientific evidence.” Tice v. Richardson, 7 Kan. App. 2d at (510-11).
Cautionary instruction regarding the testimony of a confidential informant.
The defendant argues that the trial court erred by refusing to give a cautionary instruction regarding the testimony of the confidential informant. The State argues that a cautionary instruction would only be necessary in the case of an accomplice’s testimony.
The standard of review for criminal appeals involving jury instructions depends on whether the defendant objected to the instructions at trial. See State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989). “When a trial court refuses to give a specific instruction, the' appellate court must view the evidence in the light most favorable to the requesting party.” State v. Hickey, 12 Kan. App. 2d 781, 784, 757 P.2d 735, rev. denied 243 Kan. 781 (1988). While there are no reported Kansas cases discussing the necessity of giving a cautionary instruction for a confidential informant’s testimony, we conclude that the trial court errs in refusing to give the instruction when, as here, there is a request for such an instruction and when the informant’s testimony is uncorroborated and provides the sole basis for defendant’s conviction.
The courts that have considered this question have reversed convictions for failure to give cautionary instructions where there was a lack of corroboration of the informant’s testimony. In United States v. Garcia, 528 F.2d 580 (5th Cir. 1976), the court reversed the conviction of a defendant where the informant’s testimony was the only evidence incriminating the defendant. The fact that the jury had heard evidence attacking the credibility of the witness'did not diminish the need for cautionary instructions. 528 F.2d at 587-88. Instead, the court said that such information “cast a dark shadow on the credibility of [the] witness,” giving further support to the need for cautionary instructions. 528 F.2d at 588.
In Smith v. State, 485 P.2d 771 (Okla. Crim. 1971), the court reversed a drug conviction where the informer’s testimony was uncorroborated. The informant in Smith was searched, given money to make a buy from the defendant, and driven to within one-half block of the cafe where the buy allegedly took place. The informant returned with a package that contained drugs. The defendant’s defense, which was supported by two witnesses, was that he was elsewhere at the time of the alleged buy. The State had no other witnesses who saw. the defendant in the cafe. The court noted that the credibility of the informant had been questioned at trial, giving further support for a cautionary instruction. The court held that the failure to provide a cautionary instruction 'when there was no corroboration of. the informant’s testimony was plain error. 485 P.2d at 773.
In Todd v. United States, 345 F.2d 299, 300-01 (10th Cir. 1965), the court held that lack of cautionary instructions was not reversible error, although they would have been desirable, where testifying police officers witnessed the transfer of drugs from a distance and the informant’s credibility was attacked on cross-examination. 345 F.2d at 301. See James v. State, 105 Nev. 873, 875, 784 P.2d 965 (1989); see also State v. Spurr, 115 Idaho 898, 771 P.2d 916 (Ct. App. 1989) (informant’s testimony was corroborated by tape recordings and in-person conversations during which the drug sales were arranged and transacted and informant’s credibility was attacked; cautionary instruction not required).
In this case, the State failed to provide corroborating evidence to support the confidential informant’s testimony. While Detective Marshall searched the confidential informant before and after the alleged buy and kept him in view during most of the time between the searches, he did hot witness the actual transaction. The wire planted on the informant did not work. The defendant’s conviction is based solely on the testimony of a paid informant. The defendant was allowed to attack the credibility of the informant on cross-examination, but, as noted above, such attacks may further support the giving of a cautionary instruction.
The State argues that the need to give a cautionary instruction arises only in the case of accomplice testimony. Motivé to shift blame is present when an accomplice testifies but is not present when an informant testifies. While we acknowledge the difference between the motives of an accomplice and an informant, we base our decision not on that difference, but rather on the fact that defendant’s conviction in this case is based solely on the testimony of a paid informant. Under these circumstances, and given the fact the defendant requested a specific instruction, we conclude that the court erred in refusing to give a cautionary instruction regarding the testimony of the confidential informant.
The State further argues that this court has rejected the use of cautionary instructions in State v. DeVries, 13 Kan. App. 2d 609, 780 P.2d 1118 (1989). DeVries involved the use of a cautionary instruction which unduly focused on the credibility of the defendant, who was the sole witness on his own’behalf. 13 Kan. App. 2d at 618. DeVries has no application to this case.
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Lewis, J.:
This is an appeal by the defendant from his conviction on one count of rape. As a result of that conviction, the defendant was sentenced to a term of not less than 10 nor more than 25 years in the custody of the secretary of corrections.
A.S. is the complaining witness and victim of the alleged rape in the instant matter. She testified that she had known the defendant for a couple of months and that he had, during that period of time, driven her to and from work and other places. In addition, she testified that, during the period of their ac quaintanceship, she saw the defendant two or three times a week and sometimes more frequently.
On the night the crime was alleged to have taken place, A.S. met the defendant at her cousin’s home. In due time, the cousin’s boyfriend showed up, and the four drove around Wichita, performing various and sundry errands. After the errands were completed, all four went to the defendant’s apartment, where they ate, and drank some beer.
The group then left the defendant’s apartment and drove to A.S.’s apartment, where the cousin and her boyfriend remained. It developed that A.S. needed to buy some shoes for work, so A.S. and the defendant left her apartment in defendant’s car to purchase the shoes. A.S. was unable to obtain any money out of her bank auto teller, so A.S. and the defendant went to the defendant’s apartment to wait until approximately 6 p.m., when it was believed A.S.’s money would become available through the bank auto teller.
While A.S. and the defendant were waiting in the defendant’s apartment, A.S. testified that defendant started to question and pressure her about having sex. A.S. testified that she made every possible effort to discourage the defendant but to no avail. Ultimately, A.S. testified she was forced by threat of severe bodily harm to disrobe and engage in forced, nonconsensual intercourse with the defendant. Afterwards, defendant permitted A.S. to get dressed and drove her back to her apartment. There were a number of individuals who saw A.S. after she returned to her apartment, all of whom noticed that her face was bruised and swollen. These witnesses also noted that A.S. was very upset, and she indicated to several witnesses that she had been raped. Ultimately, A.S. was taken to the hospital where the usual procedures were employed to treat A.S. and to collect evidence of the sexual assault.
The defendant offered an alibi defense. His common-law wife testified that, during the time the alleged rape was taking place, the defendant was with her. She stated that defendant picked her up from work at about 6:30 p.m. and was with her the rest of the evening. This testimony was consistent with the explanation given to police officers by the defendant on the night in question. The testimony, however, was totally at odds with the description of events given by A.S.
As the trial court pointed out, the ultimate question for the jury was whether it believed the testimony offered by the State or the testimony offered by the common-law wife of the defendant. The trial court described the defendant’s wife as a credible witness but indicated that, apparently, the jury chose to believe the version offered by A.S. and the other witnesses for the State.
The principal issue on this appeal involves the defendant’s refusal to obey a court order to give a semen sample and the use of evidence of that refusal by the State.
As will be related, the defendant was invited both voluntarily and by a court order to provide a semen sample. The defendant refused to do so. Prior to trial, the defendant filed a motion in limine, requesting the court to order the prosecutor not to comment on defendant’s refusal to give the semen sample. The court refused to issue such an order, and substantial testimony concerning this refusal by the defendant was admitted. In addition to the testimony offered by the State showing the refusal of the defendant, the prosecutor, on final argument, mentioned this refusal to the jury on three separate occasions.
The questions presented are whether it was proper, under the facts shown, to order the defendant to give a semen sample and whether it was proper to permit the State to introduce evidence of defendant’s refusal to give the sample and argue that refusal to the jury on closing argument. In other words, our focus is on whether the trial court erred in refusing to grant the defendant’s motion in limine.
The issue of whether the defendant would give a sample of his semen came up on two different occasions. The first time, defendant was asked to do so voluntarily. The police officer testified that, during a conversation with defendant, he advised the defendant that, if he was telling the truth, his semen would not match that taken from the victim. This testimony followed:
“Q. What was his answer?
“A. He would — it would not match.
“Q. So then what did you ask him?
“A. I asked him if he would be willing to give us a semen sample.”
[At this point defendant’s counsel objected to the witness answering the question; the objection was overruled.]
“Q. Why — what did you ask him then?
“A. His response was ‘Today?’ And my response was ‘Right now,’ and he replied ‘No.’ Well — and I said, ‘Why?’ His response was T don’t know. I’m not into nothing like that. I don’t know.’ ”
The issue came up again after a court order was obtained, ordering defendant to give samples of blood, saliva, pubic hair, and semen. This order was issued rather perfunctorily, and the record shows no evidentiary foundation was laid by the State to obtain this order. In addition, the record indicates that there was no objection by defendant’s counsel.
“THE COURT: Michal Williams. There’s a motion for blood, saliva, seminal fluid and pubic hair.
“MR. SYLVESTER [Defendant’s attorney]: No objection, Your Honor.”
After the order was issued, a police officer was dispatched to obtain the samples. The samples of blood, saliva, and pubic hair were obtained, but no semen sample. The following testimony indicates what took place:
“Q. . . . You did — at some later time the defendant initially told you that he would not submit a semen sample in your first conversation, is that correct?
“A. A voluntary semen sample.
“Q. And later a court order was obtained to obtain that for us, is that correct?
“A. That’s correct. “Q. And with that, did you obtain blood, saliva and a semen sample?
“A. Yes, I did.
“Q. And were you able to do so?
“A. We obtained the blood, saliva, pubic hair. The semen sample was not obtained.
“Q. Why not?
“A. Mr. Williams refused to provide that sample to us.
“Q. Am I correct in my reading of your notes from that interview with Mr. Williams that he advised he would not give you that semen sample?
“A. That was my indications in the note, yes.
“Q. And he indicated that he would not do so because he was incapable of doing so at that time, is that correct?
“A. His exact wording as I recall it was ‘Man, I don’t jack off.’
“Q. Okay. What sample were you seeking that you did not obtain?
“A. Yes. The court order also requested a semen sample from the individual, Michal Williams.
“Q. Okay. And did you obtain one at that time?
“A. No, ma’am.
“Q. Why not?
“A. He refused.
“Q. Did you at some later time get that sample, semen sample?
“A. We never did obtain a semen sample from Michal Williams. There were two requests made on January the 3rd, one after his initial statement that he would not provide it and again immediately after the statement. There were no other requests.”
This testimony was permitted as a result of the trial court’s denial of the defendant’s motion in limine. The defendant made every possible pretrial effort to deter testimony concerning his refusal. During the trial, objections were made to the testimony outlined above and overruled. Finally, defendant requested that a continuing objection be noted to such testimony, and this request was granted by the trial court.
As a result of the denial of the motion in limine and the refusal of the trial court to sustain defendant’s objections, the jury heard substantial testimony to the effect that defendant had refused to give a semen sample. In addition to the testimony, the prosecutor, on final argument, commented on defendant’s refusal no fewer than three times, telling the jury:
“Once the standards, the known standards, were found and given by Michal — Michal Williams, except for the semen he wouldn’t provide, they were able to make comparisons, blood comparisons, and those comparisons showing up as secretors in the vaginal swabs.
“Beyond all that, there’s only one other thing that supports what [A.S.] says, and that’s what the defendant says, and he supports it right down the line, friendship, gives her a ride to work, everywhere they went that day. He supports it all the way until the going gets tough or it gets just a little too hot where he’s going to be found out and then he sort of gives himself away in saying that he won’t contribute semen.
“Besides when Michal Williams talked to Detective Moser, why didn’t he say, ‘Come on over to my house and take a look around?’ Well, no, just like with the semen, and, yes, he is a lay person, expecting that semen to prove something and maybe holding back on that because he knew his own guilt.”
The record clearly discloses that the State wanted the jury to believe that the semen sample would have provided the final proof of guilt. The implication made by the prosecution in its closing arguments is that the defendant refused to provide the semen sample because he was guilty and that the sample would have proven guilt beyond any reasonable doubt. In summary, the State wanted the jury to believe defendant had deprived it of relevant, probative evidence in refusing to give a semen sample.
A search of the record reveals that at no time did the State actually prove that the defendant’s refusal to provide a semen sample deprived' it of any relevant evidence. There is no factual support for the proposition that the missing sample would have given the State or the jury any more evidence of defendant’s guilt than it already had. In addition, as pointed out above, the State did not present any evidence in obtaining the court order to show the need for or relevance of the semen sample.
The serologist called by the State testified that she was able to perform the necessary serological tests by using the samples of blood, saliva, and pubic hair donated by the defendant. One of the most important determinations of defendant’s guilt or innocence was a test to reveal whether defendant was a “secretor” or a “nonsecretor.” The testimony of the serologist indicated that, in order to perform this test, all that was required was that known samples of defendant’s bodily fluids, either saliva or semen, be provided. The witness testified that she was able to make the determination in this case from the saliva sample furnished by the defendant. The following testimony is illustrative:
“Q. You did the Lewis typing, and as I understood your testimony, the main basis for the Lewis typing is to predict whether or not someone will be a secretor, is that correct?
"A. Or a nonsecretor, that’s correct.
“Q. And you’re able to determine that in Mr. Williams’ case from his saliva sample?
“A. Because of his Lewis type, I could not predict the secretor status.
“Q. But you were able to determine from his saliva sample that he was a secretor?
“A. Yes, I was.
“Q. And you did the group 1 analysis and PGM subtype?
“A. That’s correct.
“Q. Is that the normal kind of testing you would do in a rape case?
“A. When suspect standards are submitted, it is.
“Q. Would you normally do more testing on that?
“A. No, I would not.”
The testimony of the serologist demonstrates that, had defendant given a sample of semen, it would have proven nothing more than the blood, saliva, and pubic hair samples, which he had already provided. The State’s own expert witness verifies that she would not have done any more testing than she did in this or any other rape case. Clearly, the refusal of the defendant to provide semen did not deprive the State of any relevant evidence.
' Having set the factual basis for this appeal, we proceed to examine the legal questions raised.
DID THE COURT’S ORDER VIOLATE DEFENDANT’S FOURTH AMENDMENT RIGHTS?
The defendant argues that the order of the trial court to provide a semen sample violated the defendant’s rights under the Fourth Amendment to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution to be secure from unreasonable searches and seizures. During the course of our analysis, we shall refer to those rights as the defendant’s Fourth Amendment rights.
One immediate problem is the defendant’s failure to raise these constitutional grounds at the trial level. Generally, constitutional grounds for a reversal of a conviction may not be asserted for the first time on appeal. State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989); State v. Budden, 226 Kan. 150, 154, 595 P.2d 1138 (1979).
We have recognized exceptions to the rules stated above. We have said that “if a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights,” we will deal with the constitutional issue. State v. Anderson, 12 Kan. App. 2d 342, 343, 744 P.2d 143 (1987). The defendant suggests that we apply the exception to the rule because of the importance of the issue and of the fundamental rights involved. We are also advised that the court orders directing defendants to provide semen samples are common in Sedgwick County, and we should address the issue for these reasons.
We have determined that the ends of justice and the importance of the issue involved require that we deal with the constitutional question raised. In so doing, we are mindful that the order to provide the sample was not objected to by the defendant. We are further mindful of the fact that no attempt was made to enforce the order. The defendant refused to comply, and no move was made to hold him in contempt or to force medical extraction of the semen upon his refusal. However, we surmise that the existence of the order played a very large part in the denial of the motion in limine. To properly deal with that issue, we will examine the constitutional ramifications of the court order. In doing so, we caution that our analysis focuses only on the factual pattern presented on this appeal.
The State, in its brief, has only addressed a possible Fifth Amendment violation. It is clear that the court’s order did not violate the defendant’s right against self-incrimination. The order requiring the defendant to provide a semen sample did not compel him to testify against himself or provide evidence of a testimonial or communicative nature. It, therefore, could not have violated his Fifth Amendment rights. See Schmerber v. California, 384 U.S. 757, 765, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966).
The Supreme Court of the United States in Schmerber held that, as a general proposition, the procedures employed in obtaining bodily fluids constitute an intrusion into the human body and depend upon a seizure of the person. For those reasons, such procedures have been held by the Court to be governed by the Fourth Amendment protection against unreasonable searches and seizures. 384 U.S. at 767-68. The Court has further indicated that these procedures also involve an individual’s right to privacy. Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 616, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989).
Not every intrusion into the human body to retrieve evidence is unreasonable and prohibitive. Schmerber involved a question of whether the removal of blood through the use of a needle in a DUI case was prohibited. The court held that it was not because, among other reasons, the withdrawal of blood was done by a physician, “in a simple, medically acceptable manner in a hospital environment.” 384 U.S. at 759. The rationale of the court was to constrain only those intrusions into the body which were “not justified in the circumstances, or which are made in an improper manner.” 384 U.S. at 768. While indicating that the Fourth Amendment did not prohibit bodily intrusions to retrieve evidence, the court said:
“The interests in human dignity and privacy which the Fourth Amendment protects forbid . . . intrusions [beyond the body’s surface] on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” 384 U.S. at 769-70.
The court then upheld the withdrawal of blood for several reasons, one of which was that the State had shown that relevant evidence would be obtained and would disappear unless the search was conducted immediately.
It is apparent that, while the court in Schmerber opened the door for bodily intrusions to obtain evidence, it also set limits beyond which the State would not be permitted to pass. Schmerber established a balancing test between the State’s need for evidence and the substantial privacy interests of individuals. This balancing test was applied again in Skinner, 489 U.S. at 616, in which the court held that the government’s interest in regulating the conduct of railroad employees who were engaged in safety-sensitive tasks justified and permitted Federal Railroad Administration safety regulations mandating or authorizing alcohol and drug tests of employees without warrants and without individualized suspicion.
These perimeters were further explored in Winston v. Lee, 470 U.S. 753, 760, 763, 84 L. Ed. 2d 662, 105 S. Ct. 1611 (1985). In that case, the State sought a court order requiring a defendant to undergo surgery under general anesthetic so that the State might retrieve a bullet fragment in the defendant’s shoulder for use as evidence in the trial of the defendant for robbery. In this case, the Court applied the Schmerber balancing test and ruled that the Commonwealth of Virginia could not compel a defendant to have surgery to remove the bullet. The Court held that the medical risk of surgery involving a general anesthetic, although apparently not extremely severe, was uncertain; the intrusion into the defendant’s body was severe; and the Commonwealth failed to show a compelling need for the evidence. As a result, the Court determined that the proposed surgery would be an unreasonable search under the Fourth Amendment. 470 U.S. at 766-67.
As we read Winston, the case turns upon the failure of the State to show a compelling need for the evidence. After discussing the issue of forced surgery in general, the Court said:
“The other part of the balance concerns the Commonwealth’s need to intrude into respondent’s body to retrieve the bullet. The Commonwealth claims to need the bullet to demonstrate that it was fired from Watkinson’s gun, which in turn would show that respondent was the robber who confronted Watkinson. However, although we recognize the difficulty of making determinations in advance as to the strength of the case against respondent, petitioners’ assertions of a compelling need for the bullet are hardly persuasive. The very circumstances relied on in this case to demonstrate probable cause to believe that evidence will be found tend to vitiate the Commonwealth’s need to compel respondent to undergo surgery. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted Watkinson on the night of the robbery. No party in this case suggests that Watkinson’s entirely spontaneous identification of respondent at the hospital would be inadmissible. In addition, petitioners can no doubt prove that Watkinson was found a few blocks from Watkinson’s store shortly after the incident took place. And petitioners can certainly show that the location of the bullet (under respondent’s left collarbone) seems to correlate with Watkinson’s report that the robber ‘jerked’ to the left. . . . The fact that the Commonwealth has available such substantial evidence of the origin of the bullet restricts the need for the Commonwealth to compel respondent to undergo the contemplated surgery.
“In weighing the various factors in this case, we therefore reach the same conclusion as the courts below. The operation sought will intrude substantially on respondent’s protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be ‘reasonable.’ In addition, the intrusion on respondent’s privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be ‘reasonable’ under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery.” 470 U.S. at 765-66.
We think the rationale of Winston applies in the instant matter. The court order required the defendant to provide a semen sam pie. The defendant argues that he considered the physical act necessary to provide this sample to be humiliating and degrading. He argues that the court’s order required him to either perform an act he considered degrading or to suffer the risk of the jury being told that he had refused to provide the sample requested and, thereby, conclude that such a refusal was evidence of guilt. He further points out that the State could not demonstrate a compelling need for the evidence he refused to provide.
We recognize that the sample defendant was requested to provide intrudes substantially greater on his privacy rights and his right to dignity as a human being than would an order compelling a'blood sample. Indeed, the requirement of the semen sample is a much more serious intrusion into the defendant’s right to privacy and dignity than an order requiring that he provide samples of blood, saliva, and pubic hair. This order involved a function which the Supreme Court of California in People v. Scott, 21 Cal. 3d 284, 294, 145 Cal. Rptr. 876, 578 P.2d 123 (1978), referred to as the “most intimate of bodily functions, traditionally and universally regarded as private, we think it is as extreme as the forced regurgitation at issue in [People v.] Bracamonte [, 15 Cal. 3d 394, 124 Cal. Rptr. 528, 540 P.2d 624 (1975)] and Rochin [v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952)], both supra.” We are of the opinion that such an order should not be issued absent a strong demonstration by the State of the most compelling need. Certainly, at a minimum, such an order should not be issued unless the State proves that the sample ordered to be given will provide substantial, and not merely cumulative, evidence.
We hold that, under the facts presented, the order by the district court requiring the defendant to provide a semen sample violated the defendant’s Fourth Amendment rights to be secure against imreasonable searches and seizures. Our conclusion is limited to the facts presented in the instant matter. These facts indicate that the State made no evidentiary showing of the need for a semen sample, and further indicate that the State’s own evidence disclosed that the semen sample, had it been provided, would have been of little or no probative value. The results of the serological tests performed by the State and introduced at the trial would have been no different had the sample been given. Under such circumstances, we hold that the State failed to show a compelling need for the sample, and the balancing test referred to in this opinion requires that we conclude that the State’s need for evidence did not, in the instant matter, outweigh the substantial privacy interests of the individual.
Since the court order in this case violated the defendant’s Fourth Amendment rights, it follows that the court erred not only in issuing that order but in refusing to sustain the defendant’s motion in limine. The evidence of the defendant’s refusal to provide the semen sample was highly prejudicial as were the references to that refusal in the State’s closing argument. We consider the evidence so prejudicial that we hold defendant was denied a fair trial, and we reverse his conviction and remand the matter for a new trial.
STATE LAW ANALYSIS
Aside from the constitutional analysis, we have concluded that the trial court erred in refusing to sustain defendant’s motion in limine on the basis of state law alone.
In State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979), the purpose of a motion in limine was discussed by our Supreme Court as follows:
“The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel. It is generally agreed a protective order issued on a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) The mere offer of or statements made during trial concerning the material will tend to prejudice the jury. [Citations omitted.] The material to which the motion in limine is addressed may be either inadmissible under an established rule of evidence, such as the hearsay rule, or it may be excludable under a statute, such as K.S.A. 60-445, because its probative value is substantially outweighed by its tendency to prejudice.
“As previously mentioned the primary purpose of the motion in limine is to prevent prejudice during trial. Its use should be strictly limited to accomplish that purpose. It must not be used to choke off a valid defense in a criminal action. See State v. Bradley, 223 Kan. 710, 713, 576 P.2d 647 (1978), where this court found that the motion in limine had been used to exclude relevant and material information pertaining to the defense, and that defendant’s fundamental right to a fair trial had been violated.”
We have concluded that the probative value of the evidence defendant sought to have excluded under the motion in limine was substantially outweighed by the tendency of that evidence to prejudice the defendant’s trial. For that reason, we believe the motion in limine should have been granted and that the trial court erred in refusing to do so.
There can be little doubt that introduction of defendant’s refusal to provide a semen sample carried with it an implication of guilt. See State v. Haze, 218 Kan. 60, 63, 542 P.2d 720 (1975). There also can be little doubt but that, considering the serologist’s testimony in this case, the probative value of the semen sample, even if it had been given, was zero.
Defendant argues that the probative value of the evidence sought was zero and that nothing in the record shows that the request for the semen sample served any other purpose other than to humiliate and prejudice him. Defendant contends, and we agree, the order placed him in a situation in which he would either be forced to comply with the court order and commit a humiliating act of coerced masturbation or place himself in a vulnerable position where the State could argue that his failure to provide semen was evidence of guilt.
The State relies on State v. Haze in its argument that the order was lawful and that the defendant’s refusal was relevant and probative to show his consciousness of guilt.
We do not agree with the State’s reading of Haze. In Haze, the Kansas Supreme Court held that a prosecutor’s comments on the defendant’s refusal to provide a handwriting exemplar were admissible in evidence against him. The court reasoned that, since exemplars are not self-incriminating testimony under the Fifth Amendment, the defendant could not refuse to provide one with impunity. The court stated the defendant’s refusal
“is in substance an indication of the conduct of the accused and it is this conduct, rather than the oral utterance, which provides the basis for the inference of a consciousness of guilt. Thus, the refusal should be treated as an act or conduct indicating consciousness of guilt, rather than a self-incriminating statement [under the Fifth Amendment].” State v. Haze, 218 Kan. at 63.
We believe Haze is completely distinguishable from the case at hand. In Haze, the exemplar sought would have provided relevant evidence because it could have presented exculpatory or inculpatory evidence linking the defendant to evidence found at the scene of the crime. In the matter now before this court, there has been no showing that defendant’s semen sample would have been relevant for any purpose. The test conducted by the serologist could have been conducted on any of the bodily fluid samples Williams submitted. Thus, it appears to us that the probative value of the evidence was very low and the prejudicial effect of admitting the evidence was very high. It is exactly this type of circumstance in which a trial court should grant a motion in limine. In refusing to grant the motion in limine, the trial court committed error.
The result of our conclusion on this issue is that the evidence of defendant’s refusal should not have been admitted, and the prosecution should not have been allowed to comment on the defendant’s refusal in closing argument.
The United States Supreme Court in Schmerber, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), found that requiring the defendant to provide a blood sample did not violate his Fifth Amendment rights against self-incrimination. The Court stated that there was “[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused,” because the blood test depended upon chemical analysis alone rather than requiring Schmerber to be a witness against himself. 384 U.S. at 765. In a footnote, the Court indicated a different question would be presented if the State tried to show Schmerber incriminated himself when told he would be tested. The Court stated:
“Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it [the State] wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the tests — products which would fall within the privilege. Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the ‘search,’ and nothing we say today should be taken as establishing the permissibility of compulsion in that case.” 385 U.S. at 765 n.9.
Thus, we have no hesitation in holding that, not only was it error to admit evidence of the defendant’s refusal to provide the sample, it was error to permit the State to comment on that refusal in its closing argument.
It is suggested to us that the error should be considered harmless. We are cited to State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986), which establishes the rule: “Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done.” This is essentially the harmless error rule, which has been applied by this court and the Kansas Supreme Court on many different occasions.
The harmless error concept is, at times, very troublesome. It permits an appellate court to sweep trial error under the rug and pretend that it did not happen. On occasions, the error is clearly de minimus and the rule functions well. However, in gray areas, the rule can be used to sustain a conviction under extremely troubling circumstances.
This appeal presents a particularly troublesome issue on harmless error. In approaching the harmless error issue, we are concerned about the arguments of the prosecutor to the jury in closing arguments. Because of what we consider to be the extremely prejudicial nature of the comments by the prosecutor, we adopt the rule from State v. Zamora, 247 Kan. 684, 803 P.2d 568 (1990), in considering whether the error in this case was indeed harmless. In Zamora, the Kansas Supreme Court held:
“In deciding whether improper remarks by the prosecution during closing arguments constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt. State v. Buckland, 245 Kan. 132, 141, 777 P.2d 745 (1989); State v. Abu-Isba, 235 Kan. 851, 859, 685 P.2d 856 (1984).” 247 Kan. at 690.
Because the prejudicial evidence in this case was not only brought to the jury’s attention by the State in proving its case but was also brought to the attention of the jury by the prosecutor on three occasions in closing argument, we adopt the standard which requires that we must be convinced beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. We are unable to conclude beyond a reasonable doubt that the error was harmless.
As pointed out earlier in this opinion, the defendant did present a defense. The witness who testified on behalf of the defendant was declared to be credible and believable by the trial court. The question of defendant’s guilt or innocence was, therefore, not simply a foregone conclusion. The jury had to determine whether it believed the evidence offered by the prosecution or that offered by the defense. Because the jury rejected the defendant’s version of the events, we have no way of knowing what weight the jury may have placed on the fact that the defendant had refused to provide a semen sample. The prosecution wrongfully implied to the jury that the semen sample was somehow very relevant and would have provided proof of the defendant’s guilt. This implication is simply not borne out nor is it justified by the evidence presented by the State’s own expert witness. Under the circumstances, we consider the error so prejudicial and so damaging to the entire trial that we are unwilling to stamp that error as being merely harmless error and sweep it under the rug.
We conclude that defendant’s conviction for rape must be reversed as the error may very well have affected the outcome of the trial. See State v. Colwell, 246 Kan. 382, 386-87, 790 P.2d 430 (1990).
Our decision rests primarily on the proposition that the State failed to show that it had a compelling need for the evidence the defendant refused to provide. Indeed, the State failed to show that the semen sample had any probative value or relevance to the issue of defendant’s guilt. At the very best, the evidence produced by a semen sample would have been cumulative to the evidence produced by the blood and saliva samples. The State, in its desire to obtain a conviction, was overzealous to a fault. There was no need for the State to engage in prosecutorial overkill by emphasizing defendant’s refusal to provide the sample. The same result might have been as likely obtained without attempting to mislead and prejudice the jury as to the effect of defendant’s refusal to provide a semen sample. We see, from time to time, overzealous prosecutors who exceed the bounds of propriety in their desire to obtain a conviction. We can only suggest that this approach to prosecution will inevitably result in action such as we are forced to take in the matter under consideration.
OTHER PROSECUTORIAL MISCONDUCT
The defendant argues that there was additional prosecutorial misconduct in the closing argument at his trial. He is particularly upset at the following statement made by the prosecutor in closing arguments: “The defense even acknowledges that there was sexual contact.” The defendant argues this was a glaring misstatement of the evidence and was prosecutorial misconduct. We do not agree. We consider the prosecutor s remarks to be in rebuttal to remarks of defense counsel during the closing argument of defense counsel.
To the extent that it remains relevant in view of our action on the other issues of this case, we hold that the prosecutor did not prejudice the defendant in closing argument by the statement quoted above.
Reversed and remanded. | [
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Brazil, J.:
In an action for breach of an insurance contract, plaintiffs Dodson Aviation, Inc., Dodson Investments, Inc., and Dodson International Parts, Inc., (Dodson) appeal decisions of the district court granting defendants Underwriters’ motion in limine, overruling Dodson’s objections to certain jury instructions, and denying its motion for a new trial.
Dodson was the owner of a Cessna 441 Conquest aircraft which was damaged in a hailstorm. The aircraft was insured by a hull insurance policy of which the defendants (Underwriters) were the individual underwriters. Hull insurance is defined as: “Marine or aviation insurance covering loss to vessel or plane or its machinery or equipment.” Black’s Law Dictionary 804 (6th ed. 1990).
Following the initial inspection of the plane by Joseph Kieszkowski, Jr., an insurance adjuster for Underwriters, Dodson obtained two estimates of repair and submitted them to Underwriters. Yingling Aircraft, Inc., estimated the repair at $89,112.45, and Kansas City Aviation Center estimated the repair at $151,000.
Allegedly acting upon a settlement offer from Underwriters, Dodson flew the plane to Goodner Brothers Aircraft, Inc., in Arkansas for what was described as a bottom-of-the-line repair in the amount of $10,000.
Kieszkowski believed the Yingling estimate to be too high and some of the work indicated in it to be excessive. For this reason, he made arrangements with Dodson to bring Warren H. Hartquist, an employee of Van Dusen Aviation Services, to Dodson to inspect the plane and render an estimate of repair. Although Goodner had not yet completed its repairs, the plane was returned to Dodson for Hartquist’s inspection. Hartquist estimated repairs at $17,770. The insurance policy contained a deductible of $25,000.
No settlement was ever arranged between the parties, so Dodson filed an action claiming breach of the insurance contract. Underwriters answered that the damage to the airplane was less than the deductible amount and that the policy was void due to misrepresentations, false swearing, and attempted fraud by Dodson.
Prior to trial, Underwriters filed a request for interpretation of the contract of insurance as it related to the measure of damages. The court issued a letter opinion in which it held that the measure of damages in this case would be the cost of repair and found certain other factors, including loss of value, which Dodson urged as the measure of damages, were not relevant. Underwriters also submitted a motion in limine seeking to exclude any testimony at trial concerning the fair market value of the airplane as irrelevant and, pursuant to K.S.A. 60-452, to also exclude any testimony concerning settlement negotiations. The motion was granted.
At trial, the jury found the cost of repair was $10,000 and that Dodson had concealed or misrepresented some material fact or circumstance or engaged in some false swearing concerning its claim for hail damage.
On appeal, Dodson argues that the trial court erred by (1) excluding all evidence concerning loss of value of the aircraft, (2) excluding testimony of Dodson showing that it believed a settlement had been reached, and (3) instructing the jury the insurance policy would be void if the insured concealed or misrepresented material facts. We reverse and remand for a new trial.
The trial court made two rulings which Dodson now disputes. Prior to trial, after examining the terms of the insurance contract, the court held that the measure of damages to the aircraft would be the cost of repairs and “no other factors, such as depreciation of value, deterioration, loss of use or reduction in fair market value, are relevant to the issue of damages in this case.” (Emphasis added.) Then, at trial, the court granted Underwriters’ motion in limine excluding any testimony at trial concerning fair market value or actual sales value of the aircraft at any time on the ground that such information was not relevant to the damages to which Dodson was entitled.
Dodson argued then, as it argues now, that according to Venable v. Import Volkswagen, Inc., 214 Kan. 43, Syl. ¶ 6, 519 P.2d 667 (1974), the proper measure of damages in Kansas, where repair fails to restore the property to its former condition and value, is the value of the property immediately before the damage less the value immediately after repairs are made, plus the reasonable cost of the repairs and minus the deductible. Dodson contends the district court misinterpreted Venable and erred by refusing to consider loss of value as a measures of damages. At trial, Dodson made a proffer of Dodson’s vice-president’s testimony, indicating he would testify to the value of the aircraft before the damage and after the repairs, to show a $99,000 loss in value.
The matters at issue concern a conclusion of law and this court’s review of conclusions of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
1. Exclusion of Evidence.
The limitations section of Dodson’s policy provides in part:
“LIMIT OF LIABILITY: SETTLEMENT OPTIONS: NO ABANDONMENTS.
“The liability of the Underwriters for . . . loss of or damage to the aircraft shall not exceed the amount of insurance set out in the Declarations, less the . . . deductible, nor what it would cost to repair or replace the aircraft or parts thereof with other of like kind and quality.....Underwriters may pay for the loss in money or may repair or replace the aircraft or parts thereof, as aforesaid ....
“In the case of partial . . . loss of or damage to the aircraft when repairs are effected by the Insured the liability of the Underwriters shall not exceed the actual cost of any parts or materials necessary to effect repairs or replacement plus 150% of the actual cost of labor to the Insured . . . when the repairs are made by other than the Insured, the actual costs as evidenced by bills rendered to the Insured ....
“In no event shall the liability of the Underwriters for partial physical loss of or damage to the aircraft exceed the amount for which the Underwriters would be liable were the loss payable as a total loss.” (Emphasis added.)
The trial court found Venable to be distinguishable from the present case because in Venable the repairs were made by and at the election of the insurer, while in the present case the insured made the repairs before any election was ever made by the insurer. The court seemed to believe that the rule in Venable would only apply where the insurer elects to repair, the repairs are faulty, and the amount of damages is based on the faulty work.
A careful reading of Venable provides little support for the trial court’s position. Venable states:
“When an insurer makes an election to repair or build under a ‘repair, restore or replace clause’ in its policy the insurer is then obligated to put the vehicle in substantially the same condition as it was prior to the collision so as to render it as valuable and as serviceable as before.” 214 Kan. at 48.
No matter whether the insurer elects to pay or repair, or whether the repairs are done by the insurer or the insured, the measure of damages would still include the loss of value. Nowhere in the opinion did the court suggest the rule would apply only when an insurer’s repairs were faulty.
Kansas, in Venable, has placed itself in the camp of the majority of jurisdictions interpreting such clauses to provide for determination of loss in value. See Boyd Motors, Inc. v. Employers Ins. of Wausau, 880 F.2d 270 (10th Cir. 1989) (applying Kansas law).
In the present case, the first paragraph of the limitations section of the policy is essentially the same as the limitations in Venable and it therefore is subject to the same construction. However, the policy in Venable apparently did not contain a limitation similar to the second paragraph of limitations in this case.
A search for cases discussing a provision like paragraph number two revealed only one case. That case, Hubbard v. Hartford Fire Ins. Co., 135 Wash. 558, 238 Pac. 569 (1925), held that a policy method of fixing loss or damage to a plane by allowing actual cost of materials plus one and one-half times actual labor costs was proper. In Hubbard, however, the policy in issue did not appear to contain a provision similar to paragraph number one in the instant case. No cases have been found which contain both provisions in the same policy.
The trial court here found “that the term of the policy relating to measure of damages, exclusions and limitations of damages are clear, concise and unambiguous.” We disagree.
“Whether an ambiguity exists in a written instrument is a question of law to be decided by the court.” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). “[R]egardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.” State v. Smith, 244 Kan. 283, 284, 767 P.2d 1302 (1989).
“A basic principle in the construction of contracts is that an ambiguity in the language of the contract will be strictly construed against the party who drafted the provision. Foltz v. Begnoche, 222 Kan. 383, 565 P.2d 592 (1977). This rule is particularly applicable to the interpretation of contracts of insurance and requires liberal construction in favor of the insured. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 597 P.2d 1080 (1979). Coverage clauses of automobile liability policies are to be broadly interpreted to afford the greatest possible protection to the insured while exclusionary clauses are interpreted narrowly. United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 580, 584 P.2d 1264 (1978).” Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 333-34, 681 P.2d 15 (1984).
A contract is ambiguous if the application of pertinent rules of the interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 499, 470 P.2d 821 (1970). Once an ambiguity is found, an insurance policy is to be construed in favor of the insured and against the insurance company. A contract may be found ambiguous when, after the application of the relevant rules of interpretation to the face of the insurance contract, the words intended to express the meaning and intent of the parties may be construed to reach more than one possible meaning. Anderson v. Nation wide Life Ins. Co., 6 Kan. App. 2d 163, 165-66, 627 P.2d 344, rev. denied 229 Kan. 669 (1981). The test to determine the intention of the parties is what a reasonable person in the position of the insured would have understood the policy terms to mean. Casey v. Aetna Casualty & Surety Co., 205 Kan. at 499.
In the instant case, the meaning of the term “repair” in the policy is at issue. Following the interpretation of “repair” by the Supreme Court in Venable, “repair” as used in paragraph number one of the limitations means to put the insured in substantially the same condition as he was before the occurrence. Conversely, “repair” as used in paragraph number two of the limitations, and as argued by Underwriters, refers to the actual cost incurred as evidenced by bills rendered to the insured.
It can be argued that the meaning of repair is not ambiguous, that it simply has two different meanings depending upon whether the insurer elects to repair or the repair is effected by the insured or at his direction. In the present case, Dodson had the repairs done; therefore, it is entitled to “repair” as used in paragraph number two. However, under paragraph number one, Underwriters had the option to repair or replace the aircraft or pay for the loss in money. Let us assume, for example, Underwriters had elected to pay for the loss in money and the parties, using the Venable measure of damages, agreed that the loss was $35,000 less the $25,000 deductible. Underwriters then paid Dodson $10,000, and Dodson then obtained a bottom-of-the-line repair job for $10,000. Would Underwriters then have a cause of action under paragraph number two to recover the $10,000, since the cost of repair was less than the deductible? The only distinction between this scenario and the facts of this case is that the parties had not agreed on the loss before Dodson had the repairs done. There is no evidence in the record that Underwriters intended to repair or replace the aircraft or to do anything other than pay for the loss in money.
“[W]here an insurance company desires to limit its liability under a policy, it should employ such language as will clearly and distinctly reveal its stated purpose. [Citing cases.]” Gowing v. Great Plains Mutual Ins. Co., 207 Kan. 78, 81, 483 P.2d 1072 (1971).
We believe that a reasonable person in the position of Dodson would have understood the limitations in the policy to cover the loss of value according to Venable as a result of hail damage less his deductible. In other words, Dodson’s loss is not to be determined by who repaired the plane or the extent of repairs made.
The trial court, therefore, erred when it excluded all evidence concerning the fair market value of the plane before and after the hail damage and repairs and the extent of any loss in value as a measure of damages under this contract.
2. Exclusion of Settlement Testimony.
Dodson contends agents for Underwriters initially offered to settle the case for $85,000. The trial court, in sustaining Underwriters’ motion in limine, excluded testimony on this matter, finding it to be irrelevant. Underwriters argue that it was not only irrelevant but it was also excludable under K.S.A. 60-452.
Dodson argues the testimony was relevant to show why it undertook repairs for $10,000 after having submitted a claim for $89,112.45 and to show it never considered the Goodner repairs to be sufficient. A formal proffer of what the testimony by Dodson would have been was properly offered at trial.
K.S.A. 60-452 provides:
“Evidence that a person has, in compromise or from humanitarian motives furnished or offered or promised to furnish money, or any other thing, act or service to another who has sustained or claims to have sustained loss or damage, is inadmissible to prove his or her liability for the loss or damage of any part of it. This section shall not affect the admissibility of evidence (a) of partial satisfaction of an asserted claim on demand without questioning its validity, as tending to prove the validity of the claim, or (b) of a debtor’s payment or promise to pay all or a part of his or her pre-existing debt as tending to prove the creation of a new duty on his or her part, or a revival of his or her pre-existing duty.”
The purposes of K.S.A. 60-452 are to promote settlement efforts and protect a defendant from an improper inference of liability. Ettus v. Orkin Exterminating Co., 233 Kan. 555, 567, 665 P.2d 730 (1983). All settlement offers or negotiations are not per se inadmissible. If the evidence is offered to prove something other than liability for the loss, the language of the statute does not necessarily exclude it. See 233 Kan. at 567. Dodson has not offered the testimony to show liability of Underwriters, so that evidence would not be excluded by K.S.A. 60-452.
The trial court, however, excluded the evidence on the ground of relevancy. “Relevancy is a matter of logic and experience and the trial court naturally possesses a certain amount of discretion in this area.” State ex rel. Murray v. Palmgren, 231 Kan. 524, 538, 646 P.2d 1091 (1982).
Dodson admits that there was not a settlement agreement; therefore, evidence of an agreement for a specific amount would not be relevant. Upon remand for new trial, the trial court might consider allowing Dodson some opportunity to explain that, when it proceeded to repair the plane, it did not realize that Underwriters would claim that its liability under the policy would be limited by the cost of repair. The specific testimony that the trial court should allow we leave to its good judgment. However, based on the evidence proffered, the court did not abuse its discretion.
3. Jury Instruction Regarding Concealment and Misrepresentation.
At trial the court issued the following instruction to the jury.
“No. 13: You are further instructed that the policy of insurance or contract between the parties provides that it shall be void if the insured has concealed or misrepresented any material fact or circumstances or the subject thereof or false swearing by the plaintiffs touching any matter relating to this insurance or their airplane insured under the policy, whether before or after the loss.”
Dodson made a timely objection to this instruction.
The instruction was based on a clause in the insurance contract which read as follows:
“17. MISREPRESENTATION AND FRAUD.
“This Policy shall be void if the Insured has concealed or misrepresented any material fact or circumstance whether under the Declarations or not concerning this insurance or the subject thereof or in case of any fraud, attempted fraud or false swearing by the Insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
Dodson argues the jury instruction was improper because it did not adequately state the law regarding false swearing sufficient to void an insurance contract.
It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Trout v. Koss Constr. Co., 240 Kan. 86, 88, 727 P.2d 450 (1986). “If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal.” Powers v. Kansas Power & Light Co., 234 Kan. 89, 92, 671 P.2d 491 (1983).
To determine whether the facts and law justified the instruction in question, it is first necessary to examine the facts to see if there was some substantial evidentiary basis upon which the jury could find a false swearing. Special question number four to the jury asked: “Did the Plaintiffs, through their agents or employees, conceal or misrepresent any material fact or circumstance or engage in any false swearing concerning their claim for hail damage to the subject aircraft?” To this the jury answered: “Yes.” Neither the court nor the jury set forth the specific nature of the concealment, misrepresentation, or false swearing that was the basis for this finding.
Underwriters, in their brief on appeal, set forth five incidents as providing substantial evidence for the jury’s finding and the court’s jury instruction.
First, Underwriters argue the insurance policy required Dodson to produce invoices for repair work done, but Kieszkowski testified Dodson did not submit any invoice for the work done by Goodner, amounting to a concealment. The jury, however, was never privy to the actual insurance contract, and it does not appear this particular term was made known to it. The clause to which Underwriters seems to be referring states:
“When loss occurs, the Insured shall:
“(c) file proof of loss with the Underwriters’ representatives within sixty (60) days after the occurrence of loss . . . and as often as required shall produce for examination all . . . invoices ... at such reasonable place as may be designated by the Underwriters or their representatives . . . .” (Emphasis added.)
There was no evidence Underwriters ever requested that Dodson produce the invoice from Goodner. There was no substantial evidence of a concealment based on those facts.
Second, Underwriters allege the jury could have found Dodson’s production of the Goodner invoice showing a $10,000 repair expense to have been fraudulent. Underwriters point to the fact that in the second invoice the amount had been increased from $5,500 to $10,000 and the work description had been changed to delete the words “sand and fill.” They seem to allege this was an attempt to conceal the repair work and falsify its cost.
The uncontroverted testimony of Goodner, however, indicated that the invoice was changed because the original invoice did not reflect the true charges, omitting a $4,500 credit received, and that Dodson did not request the deletion of the “sand and fill” wording. There was no substantial evidence here upon which a jury could properly find a misrepresentation.
Third, Underwriters allege Dodson testified at trial that repairs were performed only to the fuselage and not to the wings, yet Kieszkowski testified that, when he examined the aircraft the second time, the wings had also been repaired.
Robert Dodson gave deposition testimony on June 19, 1989, that he did not remember that any filler had been used in the left wing and was not aware repair work had been done to the wings. At trial, he testified that repairs had been done to more than just the fuselage but indicated his answers at the deposition were correct as far as his knowledge at that time. Goodner’s testimony was that Dodson’s work orders had only related to the fuselage.
There was no substantial evidence of a misrepresentation contained in this evidence. Underwriters did not choose to pursue the matter further. Moreover, any significance to this testimony was never emphasized at trial. Underwriters, in their closing argument which summarized the evidence for misrepresentations by Dodson, did not raise these facts. It is doubtful they served as the basis for either the court’s instruction or the jury’s deliberations.
Fourth, on November 29, 1988, Robert L. Dodson, Jr., in response to an interrogatory asking him to identify who had performed repairs to the hail damage to the aircraft, responded that there had been no repair but only a paint job by Goodner. In response to an interrogatory asking what repair had been performed, Dodson, Jr., replied by writing “N/A.”
Fifth, at a deposition apparently taken on July 12, 1989, Dodson, Jr., testified that the hail damage had not been repaired.
These last two incidents were, presumably, the basis for the jury instruction and the jury finding, and both occurred after litigation had begun. The overwhelming majority of jurisdictions hold that only false statements made before legal proceedings have begun can serve to void an insurance policy. See Annot., 64 A.L.R.2d 962 and Later Case Service for Annot., 64 A.L.R.2d 962-66. This rule is applied, despite the fact no such condition is expressed in the contract provision, usually on the basis of public policy, narrow construction, or a finding that this is what the parties must have intended.
The rationale for this rule was best stated in American Paint Service v. Home Insurance Co. of N.Y., 246 F.2d 91, 94 (3d Cir. 1957):
“The fraud and false swearing clause is one beneficial to the insurer and it reasonably extends to protect the insurer during the period of settlement or adjustment of the claim. When settlement fails and suit is filed, the parties no longer deal on the non-adversary level required by the fraud and false swearing clause. If the insurer denies liability and compels the insured to bring suit, the rights of the parties are fixed as of that time for it is assumed that the insurer, in good faith, then has sound reasons based upon the terms of the policy for denying the claim of the insured. To permit the insurer to await the testimony at trial to create a further ground for escape from its contractual obligation is inconsistent with the function the trial normally serves. It is at the trial that the insurer must display, not manufacture, its case. Certainly the courts do not condone perjury by an insured, and appropriate criminal action against such a perjurer is always available.”
The only false statements for which there was substantial evidence were made after the claim had been denied and the present action filed. As a matter of law, the statements could not serve to void the policy. The trial court erred in giving the jury instruction in question, resulting in prejudice to Dodson.
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Larson, J.:
The Board of Education of Unified School District No. 300, Comanche County, Kansas, appeals from a district court reversal of the Board’s decision to nonrenew the contract of Carl O’Hair, a tenured teacher, following a reduction in force of teaching staff for fiscal reasons.
O’Hair is one of two tenured teachers whose contracts were not renewed in April 1986 for the 1986-87 school year because of a Board-directed policy to reduce the budget following a drastic loss in district valuation resulting from decreased oil prices.
O’Hair had taught in the district since 1969. At the time his contract was nonrenewed, he was a part-time assistant principal and taught three classes — government, American history, and world history — all at Coldwater High School. The year following O’Hair’s contract nonrenewal, other administrators assumed his assistant principal duties and three tenured teachers (Carlos Amaro, world history; Charles Fiegel, government; and John McNeely, American history) took over his class load.
Amaro and Fiegel had less seniority in the district but were clearly certified in the subjects in which they replaced O’Hair. McNeely also had less seniority in the district than O’Hair, but therq was some confusion concerning his credentials. He had previously taught American history, but his certification had been dropped. Calls were made to his college and the State Department of Education to satisfy the administration that McNeely could teach American history. McNeely did not receive his provisional certifícate to teach American history until August 1988, although the school district received no complaint from the state about using a noncertified teacher for 1986-87 or 1987-88.
After he received notice that his teaching contract would not be renewed, O’Hair requested the hearing to which he is entitled under K.S.A. 1989 Supp. 72-5438. The hearing was inexplicably delayed until January 30, 1989, when district administrators presented evidence of the procedure they had followed in recommending O’Hair’s contract for nonrenewal. At the hearing, O’Hair presented evidence which included the allegation that he could have been given a full schedule by being allowed to teach high school physical education and American history at the other high school in the district, Protection High School.
At the conclusion of the hearing, the three-member committee ruled:
“Item 1, on a vote of 3-0, the committee found that the Board of Education of U.S.D. 300 did follow the RIF [reduction in force] policy GBQA-R. In so agreeing, one committee member felt that the policy was not clear on the ruling of a tenured teacher.
“Item 2, on a vote of 3-0, the committee found that the Board of Education of U.S.D. 300 did in fact discharge a more tenured teacher than those teachers who taught the classes of the discharged teacher in the ‘86-‘87 school year.
“Item 3, on a vote of 3-0, the committee found that the reason given on the notice of nonrenewal to Mr. O’Hair was not false.
“In conclusion, on a 2-1 vote, the committee found that the Board of Education of U.S.D. 300 was justified in nonrenewal of Mr. O’Hair. The dissenting vote came from the fact that the téachers with less tenure were hired to replace a teacher with more tenure.”
The Board heard the arguments of counsel on the findings of the due process hearing committee on February 15, 1989, but no action was taken at that meeting. Sometime prior to the next meeting, which was held on March 6, 1989, Superintendent James Chadwick had a resolution prepared at the request of the Board, confirming O’Hair s contract nonrenewal.
The Board went into executive session at its March 6, 1989, meeting, discussed the nonrenewal issue with the superintendent and reviewed the exhibits presented to the due process committee. The transcript of the ,due process hearing had been read by each Board member. After discussion, the Board reached a consensus as to the action it wished to take. The Board returned to an open meeting and voted unanimously to approve O’Hair’s contract nonrenewal.
O’Hair appealed to the district court, which reversed the Board’s decision and found (1) the preparation of the resolution in advance of the hearing precluded due process and indicated the Board acted in an arbitrary and capricious manner; (2) the Board’s failure to examine O’Hair’s competence, interest, and training as well as that of the teachers who replaced him was arbitrary, unreasonable, and capricious; (3) no good cause for O’Hair’s contract nonrenewal was shown because the three replacements had less tenure than did O’Hair and one was not certified to teach American history; (4) the Board failed to consider O’Hair for other full- or part-time positions for which he was certified; (5) the record discloses no evidence that O’Hair was incompetent and that he lacked skill and training to teach all the subjects on his teaching certificate; (6) the Board failed to produce substantial evidence of any good cause for nonrenewal; and (7) the Board made its decision prior to the March 6 meeting, as evidenced by a resolution having been previously prepared. The district court noted the decision to nonrenew was made in executive session which seemed to the court to be a violation of K.S.A. 75-4319 and was another indication that nonrenewing O’Hair s contract was arbitrary, unreasonable, and capricious. The Board was ordered to reinstate O’Hair and pay him the salary and fringe benefits he would have received had his contract been renewed, less credit for income O’Hair received during this period of time.
The Board appeals. We reverse.
Scope of Review
The Board erroneously cites Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm'n, 244 Kan. 157, 769 P.2d 1 (1989), as authority for the argument that the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., is applicable in this case. K.S.A. 77-603 declares the Act applies to “agencies.” K.S.A. 77-602(a) says “ ‘[a]gency’ means a state agency.” K.S.A. 77-602(k) defines a state agency as
“any officer, department, bureau, division, board, authority, agency, commission or institution of this state which is authorized by law to administer, enforce or interpret any law of this state but does not include any political or taxing subdivision of the state, or any agency thereof or the judicial or legislative branch of state government.” (Emphasis added.)
Professor David L. Ryan in his Comment, The New Kansas Administrative Procedure Judicial Review Acts, 54 J.K.B.A. 63 (1985), states:
“The recommendation of the Judicial Council was for a comprehensive statewide judicial review act for all agencies, state and local. It is at least partially attributable to the opposition of local municipalities that judicial review of local agency actions is left to the disparate treatment provided by (1) the peculiarities of local agency enabling acts, (2) K.S.A. 60-2101(d), fo.r quasi judicial action, and (3) for all other local level agency action, the eternal quagmire of the extraordinary remedies as interpreted and applied in Kansas.”
The Kansas Supreme Court was asked to apply the K.S.A. 77-618 and -619 standards to appeals of zoning decisions but refused to do so in Landau v. City Council of Overland Park, 244 Kan. 257, 273, 767 P.2d 1290 (1989), wherein it stated: “The Act specifically excludes municipal and county actions and, therefore would exclude review of rezoning decisions. K.S.A. 77-602(a) and (k). (The definition of ‘state agency’ does not include ‘any political or taxing subdivision of the state.’)” This is an appeal under K.S.A. 1989 Supp. 60-2101(d) from the decision of a school district sitting as a quasi-judicial body. Unified school districts are not state agencies. The Act for Judicial Review and Civil Enforcement of Agency Actions does not apply.
Our scope of review is fully set forth in Butler v. U.S.D. No. 440, 244 Kan. 458, 463-64, 769 P.2d 651 (1989), where Justice Herd summarized the duty of an appellate court in the following manner:
“K.S.A. 1988 Supp. 60-2101(d) gives the district court jurisdiction to review the Board’s decision. The district court may not hear the case de novo, but is limited to deciding whether: (1) The Board’s decision was within the scope of its authority; (2) its decision was substantially supported by the evidence, and (3) it did not act fraudulently, arbitrarily, or capriciously. In Gillett v. U.S.D. No. 276, 227 Kan. 71, 75, 605 P.2d 105 (1980), we held:
“ ‘In determining cases involving the dismissal or nonrenewal of a teaching contract, the courts are obligated to consider the rights of the teacher, the rights of the school board, and the rights of the school children to receive a quality education in a proper school atmosphere. In every such case, the challenge presented to the court is to provide a decision, fair and equitable both to the teacher and to the school board, with a minimum amount of disruption of the educational opportunity for the children.’
“We held in Million v. Board of Education, 181 Kan. 230, Syl. ¶ 1, 310 P.2d 917 (1957), that, while the Teacher Tenure Act protected tenured teachers from ‘unjust dismissal of any kind — political, religious or personal,’ it ‘does not confer special privileges or immunities upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public-school system.’
“Where the district court’s decision is appealed, we review the Board’s decision as though the appeal has been made directly to us, and we are subject to the same limitations of review as the district court. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 451, 436 P.2d 828 (1968).”
The limited scope of review was first stated in Foote as follows:
“ ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, the tribunal acted fraudulently, arbitrarily or capriciously, whether the administrative order is substantially supported by evidence, and whether the tribunal’s action was within the scope of its authority.’ ” 200 Kan. at 450.
For the purpose of determining whether the district court observed the requirements and restrictions placed upon it, we must make the same review of the administrative tribunal’s action as did the district court. Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 754, 648 P.2d 225 (1982).
Was the Board’s decision to nonrenew O’Hair s contract in order to reduce 1986-1987 expenditures valid?
The parties’ consideration of this issue is unnecessary. O’Hair concedes the district had the power to determine the necessity of a reduction in staff when he stated in his brief:
“The trial court did not find that the School Board exceeded its authority when it determined to reduce its budget, nor does the plaintiff assert that the School Board did not have the authority to make that determination. Both the District Court and the plaintiff do assert that the process for selecting Mr. O’Hair for nonrenewal as a means of achieving a reduction in force was flawed.”
The Supreme Court in Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980), made no mention of the rights of taxpayers to compel reductions in expenditures through Board action. The balancing required by Gillett involves the rights of teachers, school boards, and school children, which is all that is in issue herein. The decision to reduce the school’s budget neither warrants or needs any further discussion.
Was the Board’s decision to nonrenew O’Hair’s contract properly reached?
Both parties reduce this issue into two parts: one being whether substantial competent evidence existed and the second being whether Board policies were followed. The only real issue is O’Hair’s selection for dismissal.
The Board had a specific policy covering the reduction of teaching staff, which states:
“GBQA Reduction of Teaching Staff GBQA
“In the event the board decides that the size of the teaching staff must be reduced, guidelines in the rules will be followed. Insofar as possible, reduction will be accomplished by attrition due to resignations and retirement and by nonrenewal of nontenured teachers.
“GBQA-R Reduction of Teaching Staff GBQA-R
“The following steps will be utilized by the district’s administrative staff to reduce the teaching staff:
“To determine the number of teaching positions to be reduced, the administrative staff will ascertain the educational program for the district to meet the educational goals established by the board. The number of teachers needed to implement the district’s educational program will then.be determined by the administrative staff based on those educational goals as determined by the board.
“All teachers will be evaluated in relation to the educational goals of the district. Individual qualifications and specific skill areas or disciplines shall be ascertained and applied to the teacher needs of the district. Evaluation forms, instruments or tools will be used to measure each staff member’s teaching ability.
“In the event two or more teachers have similar qualifications and skills in a teaching area deemed necessary to fulfill the district’s educational goals, the superintendent may recommend the tenured teacher, if any, for the position in question.”
To determine if the decision was substantially supported by the evidence, it is necessary to review the actual selection procedure which was utilized.
O’Hair argues here that the school district failed to evaluate his “competence, skill, interest and training,” which was in violation of its own policy. The record shows O’Hair did not argue this point at the due process hearing or raise this issue at the district court. “Ordinarily, an issue cannot be raised for the first time on appeal. ” In re Appeal of City of Lenexa, 232 Kan. 568, 587, 657 P.2d 47 (1983).
When the district court found that “[n]owhere in the transcript or the exhibits does there appear any evaluation of O’Hair’s competence, skill, interest and training. In fact, nowhere in. the record does there appear any evidence of evaluation of Mr. Amaro, Mr. Fiegel and Mr. McNeely’s skill, interest and training,” this issue was raised for the first time.
A review of the record from the due process hearing shows that ample evidence was presented that school administrators followed the Board policy in selecting O’Hair’s contract for non-renewal. The record includes a transcript of the due process hearing, plus a binder of the documents presented at the hearing.
Those records show that, after a determination was first made that staff reductions were necessary, the administrators reviewed the credentials and teaching assignments of nontenured faculty to determine if any of them could be dismissed without negatively affecting the district’s educational program. Once it was deter mined that no nontenured teachers could be dismissed, the administrators evaluated the teaching skills and abilities of the tenured faculty in relation to the district’s desires to maintain then-existing programs.
Sam C. Rawdon, the Coldwater High School principal, testified at the due process hearing as follows:
“Q. After you reviewed nontenured staff qualifications and certifications, theii describe for me what you did from that point.
“A. We took an alphabetical listing of all the employees, I did, in Cold-water, and went down and said, can I eliminate this person and continue to offer, perhaps if it’s a second grade teacher, can we teach the second grade next year without this person. Can someone else cover it. If it was another academic area, in the secondary area, we said, can we eliminate that person’s position and maintain the program at the current level. And there was only one person, in my area, that met that situation.
“Q. And who was that person?
“A. That was Mr. O’Hair.
“Q. And I assume this reflects your conclusions, then, as to his ability to apply his certificate in these other areas?
“A. That was the next step. We said, is there anything, any position, that Mr. O’Hair could in effect bump, you know, in the Coldwater schools K-12, we took every single one of them, that’s every single person in our employ at that time, what their assignment was as listed there, and it’s spelled out on each one of them what Mr. O’Hair could not do in their area.
“Q. For example, you have Mr. McNeely as a science and social science teacher. That’s his assignment. Is that correct?
“A. That’s correct.
“Q. And Mr. O’Hair’s not certified in that area?
“A. That’s correct.
“Q. And you did that for each teacher?
“A. Uh-huh.
“Q. And following your evaluation of the staff, did you then make a recommendation to the administration and Mr. Chadwick as to what teacher fit the criteria and would fit into the reduction in force policy?
“A. We did.
“Q. And who was that individual?
“A. Mr. O’Hair.”
The results of this review and a similar one done with teachers in the Protection schools were discussed and evaluated in a series of administrative meetings and recorded on a chart on a blackboard reserved for this purpose.
The due process hearing committee reviewed this information as well as the documents provided by the Board of Education and voted 3-0 that the Board had followed its procedures, although one member felt the policy was not clear on the ruling involving a tenured teacher.
The record refutes the trial court’s finding that “[n]owhere in the transcript or the exhibits does there appear any evaluation of O’Hair’s competence, skill, interest and training.” The trial court is correct that the levels of competence to teach specific subjects were not compared, but it was not necessary for the administration to do so under the policy in effect.
O’Hair contended at the due process hearing that the Board could have provided him with a full schedule if he had been allowed to teach American history at Protection and high school physical education. The Board counters that to have done this would have required three tenured teachers to have been given part-time contracts for the 1986-87 school year.
Although our factual situation herein differs, it is necessary for us to consider if the decisions of several recent Kansas Supreme Court decisions require that O’Hair be retained.
In Coats v. U.S.D. No. 353, 233 Kan. 394, 662 P.2d 1279 (1983), the school board decided to eliminate one full-time high school English teacher because of declining student enrollment. Ms. Coats was selected for nonrenewal because she had the least seniority of the high school English teachers. Ms. Coats was not considered for a junior high English position for which she was certified and for which nontenured junior high school English teachers had been retained.
The Kansas Supreme Court held the school board’s action was arbitrary and capricious and ruled that “unless good cause is otherwise shown a tenured teacher may not be nonrenewed due to reduction in force until all nontenured teachers teaching subjects which the tenured teacher is qualified to teach' are first terminated.” 233 Kan. at 402.
Coats is not applicable to our case because here there were no nontenured teachers retained to teach the subjects O’Hair is qualified to teach.
The Kansas Supreme Court in Butler v. U.S.D. No. 440, 244 Kan. 458, 769 P.2d 651 (1989), considered the question of whether a board of education is required to reduce some teachers to part-time in order to retain a tenured teacher. Butler had the least seniority of three tenured industrial arts teachers. When declining enrollment resulted in the elimination of one of these positions, Butler contends he should have been assigned three physical education classes (being taught by a nontenured football coach) for which he was certified, two periods (assigned to a nontenured basketball coach) for which certification was not required, and a remaining hour of either freshman physical education (for which he was only partially qualified) or other positions for which' no certification was required.
Such changes would have required at least two nontenured teachers to be reduced to part-time. Their positions could not be eliminated because the basketball coach taught four hours of social science and the football coach taught three hours of elementary physical education for which Butler was not certified. The issue in Butler was whether the school board was required under Coats to create a position for a tenured teacher of three class periods which were being taught by nontenured teachers.
Before holding this issue must be decided on a case-by-case basis, Justice Herd in Butler cited the Minnesota rule, which requires realignment of schedules where reasonably practical to accommodate tenured teachers; the Pennsylvania rule, which requires realignment only if practicable; the Alabama rule, which holds realignment of schedules is not required; and the Illinois rule, which holds that to permit a teacher to create piecemeal positions by taking and combining courses from other teaching positions, even if held by nontenured teachers, “would usurp and, if extended, destroy the authority of the school board.” 244 Kan. at 469-70.
In Butler the court restated the Coats rule, recognized that Butler was a tenured teacher who was not certified to teach all of the nontenured teachers’ subjects, and concluded:
“Thus, the balancing test enunciated in Gillett must be used, looking to the rights of the students and Board as well as the rights of the teacher. Under the facts of this case, the test weighs in favor of the students’ rights. To arrange a schedule for Butler, the Board would have to overhaul the entire class schedule and would end up with three part-time teachers. In the absence of bad faith, a board is not required to make such a drastic rearrangement of its teaching assignments.” 244 Kan. at 470.
Because Butler holds that a school board is not required to rearrange teaching loads by taking subjects away from several nontenured teachers in order to give a tenured teacher a full schedule, it is apparent that we must not require the Board in this case to force three tenured teachers to become part-time teachers in order to accommodate O’Hair.
Our Kansas Legislature did not provide in either the Continuing Contract Law, K.S.A. 72-5410 et seq., or the Due Process Procedure Act, K.S.A. 72-5436 et seq., that reduction in size of teaching staffs must be accomplished on a seniority basis. If this were required, the kind of “selective bumping” which O’Hair suggests would be necessary, but that is not the law of Kansas.
The factual situation herein is much more compelling for upholding the decision of the Board than were the facts in Butler. We hold the balancing test enunciated in Gillett and applied in Butler requires a holding that the Board was not compelled to force three tenured teachers to become part-time teachers in order to allow a more senior tenured teacher (O’Hair) to enjoy employment and a full teaching load.
This decision follows the teachings of Butler. We are not extending the holding of Butler but, rather, are applying its logic in a more restrictive manner, for here we are comparing the rights of a tenured teacher to those of other tenured teachers. Butler compared the rights of a tenured teacher to those of nontenured teachers.
The only troubling issue in this comparison is that it appears in retrospect that McNeely, although thought by the administration to be certified and qualified, was allowed to teach American history for the years 1986-87 and 1987-88 when he was not certified. The evidence showed that an inquiry was made to the State Department of Education by the administration and it was believed that McNeely was certified. Anne Lousch who was certified to teach American history, testified that McNeely was more qualified than she to teach the subject.
This problem is not that of Bauer v. U.S.D. No. 452, 244 Kan. 6, 765 P.2d 1129 (1988), which held that when a teacher is “certified” a rebuttable presumption exists that the teacher is “qualified.” If Anne Lousch had been assigned the American history class, it would have been taught by a tenured certified teacher. In balancing the rights of students, we are not prepared to strike down the decision of the Board in utilizing the teaching services of McNeely. This set of circumstances does not justify a finding of bad faith on the part of the Board.
In summary, we hold the Board’s decision was supported by substantial competent evidence. The Board’s policies were followed. Based upon the balancing test of Gillett, the teachings of Butler, and the facts of this case, the Board was not compelled to make three tenured teachers part-timers in order to retain O’Hair. The educational opportunities of the students were not compromised by allowing McNeely to teach American history. The Board did not act in bad faith.
Did the Board’s actions in considering the opinion of the hearing committee violate the due process rights of O’Hair?
The trial court never reached the central issue of the application of Butler because the Board’s actions were deemed to be “arbitrary, unreasonable and capricious conduct as well as being a denial of due process to the teacher” due to the following:
(1) The Board based its original determination and final decision on the superintendent’s recommendation, which failed to inform the Board of the problems with McNeely’s qualifications;
(2) the Board had made a decision to nonrew O’Hair’s contract prior to the March 6, 1989, meeting as evidenced by the resolution which had already been prepared;
(3) the decision to nonrenew O’Hair’s contract was made during executive session in violation of the open meetings law.
K.S.A. 72-5443 deals with the opinion of the hearing committee and states in applicable part:
“(c) If the members of the hearing committee are not unanimous in their opinion, the board shall consider the opinion, hear oral arguments or receive written briefs from the teacher and a representative of the board, and decide whether the contract of the teacher shall be renewed or terminated.”
In Haddock v. U.S.D. No. 462, 233 Kan. 66, 77-78, 661 P.2d 368 (1983), the role of the Board was recognized as both an administrator and a quasi-judicial body. Justice Herd, speaking for the court stated: “Regardless of the inherent difficulty in the conflict of these roles, the teacher’s entitlement to a ‘fair and impartial decision’ [K.S.A. 72-5439(f)], requires that the Board strive for a high standard of detached objectivity when performing its role as a quasi-judicial body.”
The role of an administrative body in performing a quasi-judicial function was considered in Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 648 P.2d 225 (1982). The non-renewal of two tenured teachers’ contracts was upheld and due process was found to exist where not all of the board members had read the entire record. 231 Kan. at 759.
In the present case, the testimony of the Board president, Merlin Wedel, was that each member of the Board read the transcript of the record of the hearing committee and listened to the arguments from counsel for the teacher and the school district.
Kelly approved the school board being “made acquainted with the record through Board discussion, staff briefing and argument of counsel.” 231 Kan. at 760. Because staff briefing was approved in Kelly, we cannot say that the superintendent’s involvement here was a violation of due process. We believe that the better procedure might be to require the absence of the superintendent once such questions as the Board might have were answered, but we are not prepared to hold that his presence during the executive session where the hearing committee’s opinion, the record, and the evidence were considered amounted to a due process violation requiring reversal of the Board’s actions.
O’Hair and the Board both agree that the facts in this case differ from those in Unruh v. U.S.D. No. 300, 245 Kan. 35, 775 P.2d 171 (1989). O’Hair points out that in Unruh the board members did not read the transcript of the due process hearing, while here, the decision to nonrenew was made, as evidenced by the request for the superintendent to prepare a resolution, before the Board ever met to discuss the situation.
Justice Allegrucci in Unruh commented on the fact that an alternate resolution to renew had not been prepared, but the actions of the board were so otherwise deficient that this fact received no additional mention. 245 Kan. at 37.
This case differs from the facts in Unruh in many respects, although it involves the actions of the same board of education.
Here, unlike in Unruh, an executive session was held, oral argument was received, nobody testified tó acting solely on the recommendation of the administrators, and everyone read the entire transcript of the testimony of the hearing committee before reaching a decision. The only similarity between the two cases is the preparation in advance of a resolution to approve later action, which we deem to be inadvisable. However, preparation of such resolution is not deemed fatal to O’Hair’s due process rights.
The trial court’s holding that the decision was made either prior to or in the executive session is incorrect. Board president Wedel’s deposition clearly states that no decision was reached and that all of the evidence was discussed. His specific testimony from his deposition was as follows:
“Q. There was no vote taken in the executive session?
“A. Huh-uh.
“Q. No vote, no action taken?
“A. No, huh-uh.
“Q. Did the discussion — let me ask you this. There was no decision made whatsoever in the executive session. Is that correct?
“A. That is correct. None made in the executive session.
“Q. In the executive session, was there a consensus among the Board members?
“A. Yes.
“Q. As to what they would do?
“A. Yes.”
When the executive session was concluded the Board, in open meeting, did vote that the contract of O’Hair be nonrenewed. The binding action was not taken in closed or executive session and the Kansas Open Meetings Act, K.S.A. 75-4317 et seq. was not violated.
The subject discussed in the executive session was “[p]ersonnel matters of non-elected personnel,” which is specifically allowed under K.S.A. 75-4319(b)(1).
K.S.A. 75-4318 specifically provides: “[A]ny administrative body that is authorized by law to exercise quasi-judicial functions shall not be required to have open meetings when such body is deliberating matters relating to a decision involving such quasi-judicial functions.”
In Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 562, 539 P.2d 1 (1975), it was not deemed fatal that an appeals panel, after its all-day public hearing, retired for a 25-45 minute deliberative session with only the director of health planning and an assistant attorney general present. Apparently there had been a technical violation of the then new Open Meetings Act because a formal motion to retire to an executive session had not been made, but Justice Schroeder, writing for the court, stated: “Knowing violation of the act is a misdemeanor, but there is nothing to indicate that the action taken at a meeting which is in substantial compliance with the act should be void.”
In this case, there was not a violation of the Open Meetings Act because, while the testimony indicated a consensus may have been reached by the parties as to how they intended to vote, the motion and the action thereon all took place in an open meeting.
We have considered all of the arguments of the parties whether specifically referred to or not. We have not considered the unpublished opinion cited in the Board’s brief and consider offensive the remark therein to the effect that, while an unpublished opinion cannot be cited as authority, our rules do not prohibit counsel from “calling the Court’s attention to its prior decision for whatever use of that prior decision the Court might desire to make.”
The ruling of the trial court is reversed. The decision of the Board approving the nonrenewal of O’Hair’s contract is reinstated.
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Elliott, J.:
Defendant Gary Kershner appeals from two convictions of engaging in business as a broker-dealer without being registered (K.S.A. 17-1254[a]) and two convictions of selling or offering for sale unregistered securities (K.S.A. 17-1255).
We affirm.
Kershner ran the business activities of Amhawk, Inc., a Kansas corporation which sold seasonings and distributorships. Kershner was involved in the sale of Amhawk securities. Amhawk incurred rather heavy indebtedness, so Kershner decided to organize a new corporation called Country Kettle in order to have a clean corporation from which to apply for a Small Business Administration loan. Amhawk was to be purchased by Country Kettle and its debt was to be satisfied from the SBA loan proceeds. Defendant was involved with the sale of Country Kettle stock.
Kershner was charged with some 14 counts of violating the Kansas Securities Act, K.S.A. 17-1252 et seq., plus one count of making a false writing and one count of perjury. As noted above, he was convicted of four counts.
We note initially that the Kansas Securities Act is patterned on the Uniform Securities Act, which, in turn, is patterned on the Federal Securities Act of 1933. Accordingly, the Uniform Act should be construed in such a way as to make its application uniform in those jurisdictions adopting it. In other words, the Kansas Act should be applied by giving particular attention to federal decisions and decisions of sister states adopting the Uniform Act. See State ex rel. Owens v. Colby, 231 Kan. 498, 501, 646 P.2d 1071 (1982).
Did the trial court err in ruling K.S.A. 17-1272 does not unconstitutionally shift the burden of proof?
Kershner argues K.S.A. 17-1272 is unconstitutional because it shifts the burden to him to show he did not intend to violate the Kansas Securities Act.
Kershner was convicted of violations of K.S.A. 17-1254 and -1255. Those statutes render it unlawful to engage in business as a broker-dealer without being registered, except for exempt transactions, and to offer or sell unregistered securities, except for exempt securities.
K.S.A. 17-1262 provides some 18 types of transactions exempted from the provisions of K.S.A. 17-1254 and 17-1255. K.S.A. 17-1272 provides that the State need not negate in an indictment any of the exemptions. Rather, the burden of proof of any exemption “shall be upon the party claiming the benefit of such exemptions.”
Defendant’s argument is, essentially, that the statute impermissibly shifts to him the burden of proof on intent, which he contends is an essential element of the crimes charged. We disagree.
The trial court held that the exemptions were affirmative defenses to the crimes charged and further interpreted 17-1272 as merely creating a burden of production. The trial court ruled that once defendant produced some evidence of the existence of an exemption, the ultimate burden of persuasion was on the State to show beyond a reasonable doubt that the exemption did not apply.
If proof of the existence or nonexistence of an exemption from criminal liability under K.S.A. 17-1254 or -1255 were an essential element of the offenses, due process would require the State to bear the burden on those exemptions. See In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). On the other hand, a true affirmative defense does not serve to disprove an essential element of the crime, but merely consists of facts which might exonerate a defendant. See Patterson v. New York, 432 U.S. 197, 206-07, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977).
The essential elements in K.S.A. 17-1254, as applied to defendant, required a showing that he (1) engaged in business in Kansas as a broker-dealer and (2) was not so registered. The elements in K.S.A. 17-1255, as applied to defendant, required the State to show Kershner (1) offered or sold a security in Kansas and (2) that security was not registered.
Statutes almost identical to ours are found in numerous other states. Those states having decided the question are virtually unanimous in ruling that the exemptions are affirmative defenses, and that proof of the existence or nonexistence of the exemptions are not essential elements of the crimes charged and do not merely negate an essential element. See, e.g., State v. Crooks, 84 Or. App. 440, 734 P.2d 374 (1987).
Where an affirmative defense does not negate an essential element of the crime, which the State has the burden of proving beyond a reasonable doubt, due process is not violated by requiring a defendant to carry the full burden of proving that defense by a preponderance of the evidence. Patterson, 432 U.S. at 207. Further, a statute requiring defendant to bear only the burden of production on an affirmative defense (as the trial court ruled in the present case) has been recognized as constitutional by all jurisdictions ruling on the question. See McCormick on Evidence § 347, p. 991 (3d ed. 1984).
A review of case law from sister states confirms that challenges to the constitutionality' of statutes essentially identical to 17-1272 have been uniformly rejected when the statutes have been interpreted to require only a burden of production or going forward on the existence of an exemption by the defendant. See, e.g., People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (1976); State v. Goetz, 312 N.W.2d 1 (N.D. 1981), cert. denied 455 U.S. 924 (1982).
K.S.A. 17-1272 does not shift the State’s burden of proof required for a conviction; the burden remains with the State to prove beyond a reasonable doubt all elements of the crimes charged.
Did the trial court err in finding proof of specific intent was not required to sustain the convictionsP
Defendant argues that the crimes with which he was charged were specific intent crimes but, due to the trial court’s erroneous interpretation of “willful” under K.S.A. 17-1267(a), the State did not sustain its burden of proof.
While the Kansas Securities Act does not define “willful,” our Supreme Court has. No specific intent is required where one violates the Securities Act “except the intent to do the act denounced by the statute.” State v. Hodge, 204 Kan. 98, 107, 460 P.2d 596 (1969).
“Willfully” under 17-1267 means the defendant acted intentionally in the sense that he was aware of what he was doing. State v. Puckett, 6 Kan. App. 2d 688, 699, 634 P.2d 144 (1981), aff'd 230 Kan. 596 (1982). Sister states have also found that specific intent is not required to sustain a conviction under similar statutes. See, e.g., State v. Fries, 214 Neb. 874, 337 N.W.2d 398 (1983); State v. Sheets, 94 N.M. 356, 610 P.2d 760 (1980).
In the present case, the trial court was careful to explain to the jury that it must find the crimes charged were committed willfully. Instruction number 25 stated: “The term, ‘willfully,’ as used in these instructions means the person acted intentionally in the sense he was aware of what he was doing.”
The trial court did not err.
Do the offenses for which defendant was convicted constitute crimes pursuant to K.S.A. 21-3102(1)?
Defendant argues that the offenses described in K.S.A. 17-1254 and -1255 are not crimes. This issue seems to be raised for the first time on appeal. Defendant cannot raise points here which were not presented to the trial court. State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986).
Even if we were to consider the issue, however, there is no merit to defendant’s argument.
K.S.A. 21-3102(1) provides:
“No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state, but where a crime is denounced by any statute of the state, but not defined, the definition of such crime at common law shall be applied.”
Defendant argues that since 17-1267(a) does not expressly refer to a violation of the Securities Act as a “crime,” it cannot be a crime.”
A crime is an act defined by law for which, on conviction, a sentence is authorized. K.S.A. 21-3105. K.S.A. 17-1267(a) authorizes, on conviction, imprisonment up to three years and/or a fine of up to $5,000 and speaks of “prosecution for any crime under this act.”
Further, 17-1254 and -1255 specify acts as “unlawful.” An act made unlawful under the Securities Act is, without question, “made criminal in . . . [a] statute of this state.” K.S.A. 21-3102(1).
The offenses for which defendant was convicted were crimes undei Kansas law.
Is a violation of the Kansas Securities Act a felony or a misdemeanor?
According to defendant, since 17-1267 does not expressly state that offenses under the Securities Act are felonies, they must be misdemeanors.
Kansas crimes are classified as felonies, misdemeanors, and traffic infractions. A felony is punishable by imprisonment in a state penal institution. K.S.A. 21-3105.
While the Securities Act provides for up to three years of imprisonment, it does not specify the incarceration to 10 be in a state penal institution. Clearly, if the crimes defined in 17-1267 are not felonies, they must be misdemeanors. See K.S.A. 21-3105(3).
But K.S.A. 21-4502(1), which sets the terms of confinement for misdemeanors, does not provide for any confinement exceeding one year. It is, therefore, clear to us that the legislature did not intend to make violations under 17-1267 misdemeanors. Further, our Supreme Court has accepted prosecutions under the Securities Act as felonies. See State v. Hodge, 204 Kan. 98, Syl. ¶ 10, 460 P.2d 596 (1969).
A sister state has construed a similar statute. Carr v. State, 359 P.2d 606 (Okla. Crim. 1961). There, as here, the defendant argued that since the statute was silent as to the place of imprisonment, the crime must be a misdemeanor. 359 P.2d at 608. And there, the court ruled that since authorized confinement could exceed a year, logic dictated the crime to be a felony. 359 P.2d at 609.
The trial court properly ruled the crimes to be felonies.
Was there sufficient evidence to support the jury’s finding that a commission or remuneration was given for soliciting the purchasers of stock?
Finally, defendant argues there is insufficient evidence to support a finding that the securities sold were not exempt under 17-1262(m), which provides a transactional exemption for an offer or sale of a Kansas security when no commission or other remuneration is paid or given for soliciting the purchaser.
Defendant argues there is no evidence that any commission was ever actually paid or given for any solicitation.
On this issue, we view the evidence in a light most favorable to the prosecution in determining whether a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. White, 246 Kan. 28, 37-38, 785 P.2d 950 (1990).
This issue revolves around Augie Meier, Jr. Meier testified that defendant told him that if he were to bring in investors for Country Kettle, he would receive approximately one share of defendant’s personal stock for every share sold. Subsequent to that conversation, Meier said he sent in potential investors, including Bruce and Russell Taylor.
The Taylors testified that after solicitation by Meier, they each purchased 21,000 shares of Country Kettle stock from defendant. Defendant’s convictions are based on the 12 sales to the Taylors. Russell Taylor also testified that at some point, Country Kettle and Ace Flying (or Flying Ace) merged to form Aunt Myra’s, Inc. When that occurred, shares in Country Kettle were converted to shares in Aunt Myra’s. The State presented evidence of a stock certificate to Meier of 200,000 shares of Aunt Myra’s stock.
Meier testified with respect to the stock certificates that:
“Because when the stock changed from Country Kettle to Aunt Myra’s, that my understanding was it went up in value when it was supposed to go into the shell corporation and — and that that made that go up as well as some of the people that l brought into the corporation and was part of that.” (Emphasis added.)
Defendant objected to the admission of the stock certificate on the basis that Aunt Myra’s had nothing to do with the present case. The prosecution responded by stating the stock certificate in Aunt Myra’s “related to commission paid to this witness [Meier] in the form of stock.”
Defendant responded: “His [Meier’s] testimony was that he was to get it in Country Kettle stock” — as opposed to Aunt Myra’s stock.
Viewing the evidence in a light most favorable to the prosecution, as we must, there was sufficient evidence from which a rational factfinder could have found beyond a reasonable doubt that defendant gave and Meier received stock as a commission for the solicitation of the purchasers of the unregistered stock which Kershner sold.
The convictions are affirmed. | [
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Davis, J.:
This is an appeal by the natural mother from the district court’s termination of her parental rights to S.R.H., a minor male child. We reverse and remand based upon our consideration of the first assignment of error raised by the natural mother: whether “[t]he district court denied [natural mother] her constitutional rights of due process of law by failing to appoint an attorney to represent her at all critical stages of the proceedings.”
Highly summarized, the facts are that the police were called to investigate a family disturbance at the home where the natural mother and her boyfriend were staying. Because the natural mother had been beaten by her boyfriend’s brother, an ambulance was called to transport her to the hospital. Based on an investigation conducted by the police department on October 19, 1987, and in conjunction with SRS protective service worker Sherry Snyder, the minor child, S.R.H. (date of birth 8-24-85), was placed in protective custody because the social worker did not feel the child could receive proper care in that environment.
On October 26, 1987, a child in need of care petition was filed. On November 12, 1987, at a hearing on the child in need of care petition, S.R.H. was adjudicated as a child in need of care and continued in foster care, with a review hearing scheduled to be held by the court on February 5, 1988. The record on appeal contains only the journal entry of the hearing on November 12, 1987. After checking with the district court, we are satisfied that the child in need of care adjudication hearing was not transcribed. The journal entry reflects the following appearances: “C.Y. Meek, Cherokee County Attorney; Juvenile by Larry A. Prauser, his guardian ad litem; the mother in person; there were no other appearances.” Evidence in the subsequent severance hearing indicates that the natural mother, consistent with SRS’ request, was to complete an in-patient drug and alcohol abuse treatment program and obtain a comprehensive psychological evaluation. The journal entry terminating parental rights filed January 30, 1990, reflecting a hearing on August 23-24, 1989, indicates that a review hearing was held on February 11, 1988, and it was ordered that the child should remain in the custody of social and rehabilitation services. The journal entry further indicates that a motion for termination of parental rights was filed on February 11, 1988. Other than this entry in the record indicating a review hearing was held on February 11, 1988, there is no transcript of the February 11 hearing in the record.
The record does not contain a formal reintegration plan but the court notes in its order severing parental rights that in November of 1987, a reintegration plan was adopted which contemplated the completion of in-patient drug and alcohol abuse treatment and a complete psychological evaluation by the natural mother. The severance hearing notes that this was never completed by the natural mother.
On February 11, 1988, a notice of hearing was filed with the court and served personally upon the natural mother. The notice provided as follows:
“A petition has been filed in the court requesting that the court find S.R.H. a Child in Need of Care.
“You are required to appear before this court at the Courthouse, Columbus, Kansas, on March 3rd, 1988, at 1 o’clock P.M. or prior to that time file your written response to the pleading with the clerk of this court. If, after the child has been adjudicated to be a child in need of care, the court finds a parent or parents to be unfit, the court may make an order permanently terminating the parent’s or parents’ parental rights.”
“Larry A. Prauser, an attorney, has been appointed as guardian ad litem for the child. Each parent or other legal guardian of the child has the right to appear and be heard personally either with or without an attorney. The court will appoint an attorney for a parent who is financially unable to hire one.
Clerk of the Court
by 1st Martha L. Rooney”
The notice published in the Columbus Daily Advocate contained the same information. Obviously, notice was defective in that it notified all parties and published on the basis that there was a petition filed for declaration and adjudication of S.R.H. to be declared a child in need of care. The motion filed February 11, was a motion requesting termination of parental rights. A child in need of care adjudication had previously been made on November 12, 1987.
The mother requested a continuance of the hearing which was granted by the court and set for March 24, 1988, at 1:00 p.m. The first indication in the record that the natural mother is rep resented by an attorney is March 31, 1988, four months after S.R.H. was adjudicated a child in need of care. On that date, there appears in the record a motion to produce documents filed by John W. Fink, who designates himself as attorney for the natural mother.
The next entry concerning counsel is an order appointing counsel for the natural parents dated November 4, 1988. This order was entered on petition of the county attorney for appointment of counsel for the natural mother. Alois R. Bieber was appointed counsel to represent and defend said natural parents in this proceeding. Mr. Bieber continued representing the interest of the natural mother from the date of his court appointment on November 4, 1988, through severance, at which time he was allowed to withdraw as counsel of record. On February 14, 1990, Mr. Darrell Shumake was appointed as attorney to represent the natural mother on the appeal. In the order appointing counsel on appeal, the court finds that the natural mother is an indigent under Rule 2.04(b) (1990 Kan. Ct. R. Annot. 7); that the appeal should be docketed in forma pauperis and the filing fee should be waived; and that the natural mother’s attorney fees and cost of the transcript should be assessed against the county general fund pursuant to K.S.A. 38-1685.
Before addressing the assigned error, we note that none of the parties focus upon the defective notice in the severance of parental rights case. Because of our disposition of this appeal, we do not address the question. It appears that all parties proceeded on the basis that a severance hearing was to be held even though the notices given all relate to a hearing for a child in need of care adjudication.
Whether the district court denied appellant her constitutional rights of due process of law by failing to appoint an attorney to represent her at all critical stages of the proceedings.
In response to the natural mother’s argument that she was denied counsel, the State argues that she chose to proceed with the hearing on the merits of the child in need of care petition without the benefit of counsel. K.S.A. 38-1505(b) provides that “[i]f at any stage of the proceeding a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent.” The State contends that the statute requires the appointment of an attorney only upon request of the indigent parent. Specifically, the State contends that the mother did not make such a request, despite the fact she was served with a summons apprising her of her right to counsel. Thus, according to the State, the natural mother waived her right to counsel.
We acknowledge that the statute relied upon by the State appears to require that a natural parent request the appointment of counsel before the statute operates. However, for the reasons set forth below, we do not think that the constitutional rights of due process of this natural mother depend entirely upon her request for counsel.
We note that this situation is not too much different from that presented to the court in the case of In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981). This base, like Cooper, deals with a temporary deprivation of the right to the custody of the child.
As noted in Cooper:
“It is universally held that constitutional due process requires the assistance of counsel in severance proceedings. The same is not true of proceedings for temporary removal of children from the family for care, treatment and assistance. Virtually all jurisdictions including Kansas recognize the parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause. [Citation omitted.]” Cooper, 230 Kan. at 64.
Because the courts recognize that the parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause, the court- noted that a determination of the safeguards necessary to afford constitutional due process with reference to a temporary deprivation of custody must be evaluated in light of the nature of the proceeding and of the interest affected. Thus, Cooper adopted a balancing of interests test in temporary deprivation cases:
“The extent to which procedural due process must be afforded a person is influenced by the extent to which the person affected may be ‘condemned to suffer grievous loss’ and depends upon whether the person’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” In re Cooper, 230 Kan. 57, Syl. ¶ 3.
In addressing the question, Cooper deals with a determination as to whether the child was deprived under the provision of K.S.A. 1980 Supp. 38-802(g). While there are differences between the old law and the Code for Care of Children, the similarity at least in this instance between Cooper and our case is that Cooper, like this case, deals with a temporary deprivation of the custody of a child. In that respect, a determination of whether the child is deprived is similar to a determination as to whether the child is to be adjudicated a child in need of care.
In Cooper, the statute relating to the procedure for finding a child deprived was set forth in K.S.A. 1980 Supp. 38-817, which governed the procedure when a petition is filed to declare a child deprived. The statute directed that summons be issued to the child and the parent to give notice of the time and place of hearing and further provided:
“Such notice and summons . . . shall include a statement advising such child and the parent ... of the right to retain counsel of their own choosing but that upon the failure to retain counsel and notify the court of the name and address of such counsel . . . the court will forthwith appoint counsel for such child and the cost of appointed counsel may be assessed to the parent.” K.S.A. 1980 Supp. 38-817(a).
The above language is contrasted with the present code for care of children, K.S.A. 38-1505(b), which provides in part:
“If at any stage of the proceeding a parent desires but is financially unable to employ an attorney, the court shall appoint an attorney for the parent. It shall not be necessary to appoint an attorney to represent a parent who fails or refuses to attend the hearing after having been properly served with summons in accordance with K.S.A. 38-1534 and amendments thereto. A parent or custodian who is not a minor, a mentally ill person as defined in K.S.A. 59-2902 and amendments thereto and a disabled person as defined in K.S.A. 59-3002 and amendments thereto may waive counsel either in writing or on the record.”
Keeping in mind that the provisions of the statute in effect at the time Cooper was decided did not expressly provide for the appointment of counsel, Cooper nevertheless concluded:
“In deprived child hearings the district court should safeguard the due process rights of an indigent parent and have counsel appointed at the expense of the county when the circumstances appear to require it and, should a request for counsel be refused, grounds for such refusal shall be stated in the record so that a meaningful judicial review can be had.” (Emphasis added.) 230 Kan. at 69.
Cooper further notes:
“In some deprived child hearings the parent or parents involved may voluntarily waive their rights to appointed counsel after being fully advised of their rights. Such waiver should be entered on the record of the proceedings and, in such case, violation of due process rights could not successfully be raised later when the evidence at the deprived child hearing is used to support a petition to sever parental rights.” (Emphasis added.) 230 Kan. at 67-68.
Employing the balancing test, the trial court must make a determination as to whether an indigent parent is entitled under the Due Process Clause of the United States Constitution to be represented by counsel in a deprived child hearing. Not unlike Cooper, we deal with a hearing that will determine whether a minor child is to be adjudicated a child in need of care. While such adjudication does not necessarily always lead to severance, clearly, under some circumstances, such adjudication may, in fact, lead to severance. Because such hearing at least raises the issue of whether the parent is entitled to the appointment of counsel under the Due Process Clause, the failure of the district court to inquire into this issue as required by Cooper requires us to reverse this case.
It is clear to us that Cooper requires the court to consider on the record the parent’s representation by counsel in cases of temporary deprivation even though the statute then did not provide for appointment of counsel. Likewise, under the Code for Care of Children, Cooper remains good law. The right of an indigent parent to be represented by counsel in a hearing to determine whether the parent’s minor child shall be adjudicated a child in need of care is not dependent upon a request by the parent to be represented by counsel. While the statute speaks in terms of a desire, it also speaks in terms of waiver on the record or in writing. The Cooper case, while not requiring the appointment of counsel in every case of temporary deprivation, certainly requires a court hearing a petition to declare a child in need of care to make an independent determination as to whether the parent should be represented by counsel in this proceeding.
“At the onset of every deprived child proceeding the court should require the State to make an opening statement outlining the evidence which the State expects to introduce in support of the petition, and making suggestions as to recommended solutions for those problems which the State believes necessary and in the best interest of the child. In any case where the conditions outlined prior to the hearing appear to be serious and have remained so for a considerable time counsel should be appointed for the indigent parent or parents. In such cases if no attorney is appointed for the parents any evidence introduced at the deprived child hearing may well be inadmissible in a later severance hearing. Without an attorney to represent the parents, the evidence would be taken in violation of the due process rights of the parent.” 230 Kan. at 67.
We hold this same procedure is required under the provisions of K.S.A. 38-1505(b).
In addition to the balancing test, Cooper sets forth those factors which a district judge must consider in determining whether to appoint counsel: “(1) length of anticipated separation the parents may face, (2) the presence or absence of parental consent to State assistance, (3) the presence or absence of disputed facts, (4) the parents’ ability to cope with relevant documents and to question the State’s witnesses at the hearing.” 230 Kan. at 68.
The record in this case merely states by journal entry, dated November 12, 1987, that the mother appeared personally. Facts within the file indicated that the mother was receiving welfare in the form of ADC for the child, had been severely beaten by a brother of her boyfriend, was 20 years old, and had received only a 10th grade education. Under these circumstances, we hold that, under the provisions of K.S.A. 38-1505(b), the court was required to consider the balancing test and factors set forth in Cooper consistent with its duty to “safeguard the due process rights of an indigent parent” in deciding whether to appoint counsel for the mother even absent her request for appointed counsel.
Because the district court failed to do this and because we may not assume a waiver, we reverse and remand for further proceedings consistent with our decision.
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Rulon, J.;
Timothy C. Chapman, defendant, appeals his conviction for speeding (K.S.A. 1990 Supp. 8-1336), claiming that he was denied his right to trial by jury. We reverse and remand for further proceedings.
The material, undisputed facts are as follows:
On March 23, 1990, Chapman was issued a traffic citation for driving 73 miles per hour in a 55 mile per hour zone in Decatur County. On April 18, 1990, Chapman filed a demand for jury trial.
K.S.A. 1989 Supp. 22-3404(1), effective at the time of the offense, provided:
“The trial of misdemeanor and traffic infraction cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant.”
The 1990 Kansas Legislature amended 22-3404, adding the following language: “The trial of traffic infraction cases shall be to the court.” L. 1990, ch. 109, § 1; K.S.A. 1990 Supp. 22-3404(5). The amended law became effective on July 1, 1990.
On July 31, 1990, the district court sent a letter to counsel saying:
“Pursuant to Senate Bill 629, infractions are now tried to the Court with the exception of cases with the possibility of imprisonment or a fine over $500. Therefore, the above referenced case shall be a trial to the Court and is scheduled for August 22, 1990 at 9 a.m. in the Decatur County Courthouse.”
At trial, Chapman’s counsel renewed his request for a jury trial. The district court again denied the request, saying:
“The Court would find that the issue in question is a procedural question and not a substantive right, and it’s procedural. The time and place of trial is the one which controls. So, the Court finds that the Legislature intended that it’s appropriate that a jury trial is not awarded in this case. Further, the United States Supreme Court affirmed the Florida statute which was similar in nature, which did not require jury trials in those cases which had penalties of less than six months in jail or $1,000.00 fine, I believe. So, the motion is noted and denied.”
Chapman contends that the new version of 22-3404 should not be applied retroactively to deny him a right to jury trial for an offense committed in March 1990. Our Supreme Court recently restated the law of prospective versus retroactive application of statutes in State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991):
“The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. 228 Kan. at 287.”
The question present here is whether Chapman’s right to a jury trial is substantive or procedural. At the outset, it should be noted that the right to trial by jury is guaranteed by both the United States and Kansas Constitutions. U.S. Const. Amendment 6; Kan. Const. Bill of Rights, § 5. In Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444, reh. denied 392 U.S. 947 (1968), the United States Supreme Court held that trial by jury was a fundamental right which must be preserved by the states under the due process clause of the Fourteenth Amendment. The Duncan court said:
“Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee.” 391 U.S. at 149.
Chapman concedes that the legislature has the power to make jury trials unavailable in the case of traffic infractions. He notes the recent case of Blanton v. North Las Vegas, 489 U.S. 538, 103 L. Ed. 2d 550, 109 S. Ct. 1289 (1989), which stated:
“It has long been settled ‘that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.’ [Citations omitted.] . . . The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is ‘far better equipped to perform the task, and [is] likewise more responsive to changes in attitude and more amenable to the recognition and correction of their misperceptions in this respect.’ [Citation omitted.]” 489 U.S. at 541-42.
The Blanton Court went on to hold that there was no Sixth Amendment right to trial by jury in the case of a first offense for DUI. 489 U.S. at 545.
We believe the fact that the legislature may deny jury trials to persons accused of petty offenses does not end the inquiry into whether the right to jury trial is substantive or procedural. In State v. Sutherland and its companion case, State v. Sylva, 248 Kan. 118, 804 P.2d 967 (1991), the Kansas Supreme Court found that K.S.A. 1989 Supp. 21-4603(3), which dictates how a sentencing court should apply the recommendations of the State Reception and Diagnostic Center, was substantive in nature and was to be applied prospectively only. Arguably, if a statute detailing the procedure to be used for sentence modification is substantive, then a statute conferring a right to jury trial should also be substantive.
The line between substantive and procedural laws is difficult to discern. In State v. Sylva, the court relied on the earlier case of State v. Hutchison, 228 Kan. 279, 615 P.2d 138 (1980), which stated:
“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” 228 Kan. 279, Syl. ¶ 8.
Courts in other states have wrestled with the distinction between substantive and procedural law; one fairly representative definition is found in State, ex rel. v. Ind. Comm., 11 Ohio St. 2d 175, 178, 228 N.E.2d 621 (1967):
“It is doubtful if a perfect definition of ‘substantive law’ or ‘procedural or remedial law’ could be devised. However, the authorities agree that, in general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress. [Citations omitted.]”
The Kansas statute which sets forth rules of statutory construction is K.S.A. 77-201; it provides in part: “The repeal of a statute does not revive a statute previously repealed, nor does the repeal affect any right which accrued, any duty imposed, any penalty incurred or any proceeding commenced, under or by virtue of the statute repealed.” (Emphasis added.) We believe Chapman had a substantive right to a jury trial under the previously existing state law. Although this right could be modified, the repeal of the law which conferred the right should not have a retroactive effect so as to deprive Chapman of the jury trial to which he was entitled.
It is difficult to conceive of a more fundamental right than an accused’s right to a jury trial. In the absence of clear statutory language to the contrary, we believe the legislature intended the statutory changes, discussed here, to operate prospectively only, and not retroactively.
Reversed and remanded for further proceedings. | [
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McAnany, J.:
Sheriffs deputies posted signs for southbound traffic on U.S. Highway 75 in Brown County stating “Drug dog working ahead” and “Narcotics officers working ahead.” Officer Mickey Gruber sat in a lawn chair at the side of the road watching southbound motorists as they approached these signs. Two other officers, Corey Lay and Justin Koontz, were positioned approximately Vz mile south of Gruber s position.
Gruber observed Roger Kelley driving southbound on Highway 75. Upon approaching the signs Kelley leaned over toward the passenger’s side of his car and began moving around frantically. Kelley’s vehicle drifted left of the highway centerline, and Gruber alerted Lay and Koontz by radio of Kelley’s traffic infraction.
Lay signaled Kelley to stop his car at the side of the road. Koontz checked out Kelley’s driver’s license with the police dispatcher while Lay used his narcotics dog, Memo, to sniff the exterior of Kelley’s car. Memo alerted Lay to the front passenger’s side door of Kelley’s car. When Lay directed Kelley to step out of the car, Kelley yelled “No” and drove away.
Lay pursued in his patrol car. Kelley ultimately pulled into a parking lot where Lay placed him under arrest. Lay then used Memo to search the interior of Kelley’s car. Memo alerted Lay to a case on the passenger’s side floorboard which was later determined to contain marijuana and methamphetamine. Lay also found approximately $4,060 in cash on the passenger’s side seat and in Kelley’s wallet.
Kelley was charged with possession of methamphetamine, possession of marijuana, felony obstruction of official duty, possession of drug paraphernalia, and fleeing or attempting to elude a police officer.
Kelley filed a motion to suppress the evidence obtained from his arrest, which tire district court denied. Kelley was found guilty at trial of felony obstruction of official duty, possession of drug paraphernalia, and fleeing or attempting to elude a police officer.
Felony Obstruction
Kelley argues that there was insufficient evidence to convict him of felony obstruction since his flight had been from a stop for a traffic infraction, not a felony.
K.S.A. 21-3808 defines obstruction of official duty as follows:
“(a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in tire attempt to serve or execute any wilt, warrant, process or order of a court, or in the discharge of any official duty.
“(b) (1) Obstructing legal process or official duty in the case of a felony, or resulting from parole or any authorized disposition for a felony, is a severity level 9, nonperson felony.
(2) Obstructing legal process or official duty in a case of misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case is a class A nonperson misdemeanor.” (Emphasis added.)
The complaint charged Kelley as follows:
“COUNT II. That within two years from date of filing, the above-named defendant, within the County of Brown, State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas knowingly, intentionally and feloniously resist or oppose an authorized Law Enforcement Officer, to-wit: Sgt. Mickey Gruber, Corey Lay & Justin Koontz, while said officers was [sic] in the discharge of an official duty, to-wit: traffic stop. In violation of K.S.A. 21-3808. OBSTRUCTING OFFICIAL DUTY, a level 9 non-person felony.” (Emphasis added.)
The jury was not asked to determine the quality of any obstruction they might find Kelley engaged in, i.e., whether it was in connection with a felony or misdemeanor. The jury was instructed on this charge as follows:
“The defendant is charged in Count II with the crime of obstructing official duty. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That Sgt. Mickey Gruber, Corey Lay, and Justin Koontz were authorized by law to discharge of an official duty of a traffic stop (sic);
2. That the defendant knowingly and willfully resisted or opposed Sgt. Mickey Gruber, Corey Lay, and Justin Koontz in their discharge of an official duty of a traffic stop;
3. That the act of the defendant substantially hindered or increased the burden of the officers in the performance of the officers’ official duty;
4. That at the time the defendant knew or should have known that Sgt. Mickey Gruber, Corey Lay, and Justin Koontz were law enforcement officers; and
5. That this act occurred on or about the 15th day of July, 2005, in Brown County, Kansas.” (Emphasis added.)
Crimes are classified as felonies, misdemeanors, traffic infractions, and cigarette or tobacco infractions. K.S.A. 2006 Supp. 21-3105. Kelley was stopped for crossing the centerline in violation of K.S.A. 8-1514. Some violations of the Uniform Act Regulating Traffic, K.S.A. 8-1501 et seq., do constitute misdemeanors, such as reckless driving (K.S.A. 8-1566), driving under the influence (K.S.A. 8-1567), and fleeing or attempting to elude (K.S.A. 8-1568). Kelley was separately convicted of violating this latter statute, fleeing or attempting to elude. However, a violation of K.S.A. 8-1514 is categorized as a traffic infraction. See K.S.A. 21-3105(2) and K.S.A. 8-2118(c). The traffic stop cited in the complaint upon which Kelley s obstruction conviction was predicated involved a traffic infraction which is neither a misdemeanor nor a felony. Under K.S.A. 21-3808, obstructing officers in their official duty of conducting a stop for a traffic infraction is not a felony. Kelley’s conviction for felony obstruction is based upon conduct which does not constitute a felony under the statute. Accordingly, we must reverse his conviction for felony obstruction.
Motion to Suppress
Kelley argues that the officers detained him beyond the period needed to investigate a traffic infraction and that, in any event, the stop was pretextual.
The facts material to Kelley’s suppression motion are not in dispute. Thus, whether to suppress the evidence becomes a question of law over which we have unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
The fact that Kelley crossed the centerline provided a valid reason for the officers to perform a traffic stop of his vehicle. A traffic violation, even if pretextual, provides an objectively valid reason to effect a traffic stop. Once the driver is stopped, the officer is entitled to request a driver’s license and vehicle registration and to run a computer check. State v. Anderson, 281 Kan. 896, 901-902, 136 P.3d 406 (2006). Memo was used to sniff the exterior of Kelley’s car while Koontz ran a computer check of Kelley’s driver’s license, so the duration of traffic stop was not extended by this activity. Lay’s use of a narcotics dog to sniff the exterior of Kelley’s vehicle did not constitute a search for Fourth Amendment purposes. See State v. Barker, 252 Kan. 949, 957-58, 850 P.2d 885 (1993). There was extensive testimony regarding Memo’s training as a drug dog. The officers had a reasonable, articulable suspicion of illegal drug activity, justifying continued detention of Kelley for further investigation based upon Memo’s reaction while sniffing the exterior of the car. The evidence Kelley sought to suppress was obtained in the course of that continued investigation. The district court did not err in denying Kelley’s motion to suppress.
Criminal History
Kelley argues that the district court erred in sentencing him without proving his prior convictions to a jury beyond a reasonable doubt. This argument was rejected in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), which we are bound to follow absent some indication our Supreme Court is departing from its holding in Ivory. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). There being no such indication, this argument fails.
Affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiff sought benefits under the Employment Security Law found in G. S. 1949, 44-701, et seq., and amendments thereto in G. S. 1959 Supp. The appeal is from an order of the district court overruling a motion of the Board of Review of the Employment Security Division to dismiss plaintiff’s petition on the grounds the district court had no jurisdiction of the subject matter or of the person of the plaintiff.
The plaintiff-appellee, Richard W. Johnston, filed his petition for judicial review in the district court of Sedgwick County pursuant to G. S. 1959 Supp., 44-709 (h), in which he named the Board of Review of the Employment Security Division Department of Labor, as defendant. The petition alleged that plaintiff applied for unemployment compensation benefits during the months of September, October, November, December, 1959, and received the sum of $640; that on April 22, 1960, he was informed by the Board that he was found to be ineligible for unemployment compensation benefits because he was “unavailable for work”; that he duly perfected an appeal from the ruling of the referee denying benefits, and on August 10, 1960, the Board ordered that a hearing be held for the plaintiff’s attorney-in-fact in Wichita and that the transcript be forwarded to it for its review and decision; that at the hearing on August 19, 1960, evidence was presented showing that plaintiff had made a reasonable effort to obtain employment and at all times was available for immediate employment, and that on November 15, 1960, the Board denied plaintiff unemployment compensation benefits “because he was unavailable for work, being enrolled as a student.”
It was further alleged the decision of the Board was invalid and void and should be reversed for the reason that the findings of the Board as to the facts were not supported by and were contrary to the evidence; that the findings of fact were insufficient as a matter of law to support the Board’s decision; that no evidence was presented at the hearing to show plaintiff had failed to meet the eligibility requirements or was guilty of any misconduct under G. S. 1959 Supp., 44-705, or any other provisions of the Employment Security Law, or that the plaintiff had violated any regulation prescribed by the State Labor Commissioner, and that plaintiff had exhausted all of his administrative remedies within the meaning of the Employment Security Law. The prayer was that the court judicially review and overrule the decision of the Board and award plaintiff his costs as provided in G. S. 1949, 44-718 (b).
Pertinent provisions of G. S. 1959 Supp., 44-709 (h), read:
. . Within ten days after the decision of the board has been mailed, any party aggrieved thereby may secure judicial review thereof by commencing an action against the board for the review of its decision in the district court of the county in which such party resides, or has his principal place of business. . . . In such action, a petition which need not be verified, but which shall state the grounds upon which a review is sought, shall be served upon the board or upon such person as the board may designate and such service shall be deemed completed service on all parties. . . . With its answer, the board shall certify and file with said court all documents and papers and a transcript of all testimony taken in the matter, together with its findings of fact and decision therein. . . .” (Emphasis supplied.)
Instead of following the command of the statute by answering, the Board, appearing specially, filed its motion to dismiss plaintiff’s petition for the reasons that,
“This Court is without jurisdiction to hear said cause in that there is no testimony for the Court to review since plaintiff at no time during the administrative phase of the proceedings availed himself of opportunities for hearing accorded him by the Kansas Employment Security Division and the defendant Board.
“G. S. 1959 Supp., 44-709 (h), provides that plaintiff may secure a judicial review of the orders of the Employment Security Board of Review only in that county in which plaintiff resides; that plaintiff resides at 731 Clarkson, Denver, Colorado. The court, therefore, is without jurisdiction of either the subject matter or the person of the plaintiff.”
It is well settled that the Employment Security Law is complete within itself and provides its own procedure for obtaining judicial review, and rules of the common law and other statutory provisions are inapplicable. (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550; Craig v. Kansas State Labor Commissioner, 154 Kan. 691, 121 P. 2d 203; Smith v. Robertson, 155 Kan. 706, 128 P. 2d 260.) The only reference made to the code of civil procedure is where provision is made that an appeal may be taken from the decision of the district court to the supreme court “in the same manner, but not inconsistent with the provisions of this act, as is provided in civil cases.” With respect to procedure for obtaining judicial review, the Act contemplates the filing of “a petition which need not be verified, but which shall state the grounds upon which a review is sought.” The Board is required to file an “answer” and to certify and file with the court all documents, papers and a transcript of all testimony taken in the matter together with its findings and decision therein. In other words, the only pleadings to be filed are a petition by the plaintiff who seeks judicial review and an answer by the Board. While the statute is specific that the plaintiff shall seek review in the district court of the county in which he resides or has his principal place of business, any question with respect to the plaintiffs residence should be raised in the answer of the Board so that the court may pass upon the question of its jurisdiction, and if it determines it has jurisdiction, it shall proceed to hear the action in a summary manner, which is given precedence over all other civil actions except cases arising under the Workmen’s Compensation Law.
The Board’s motion to dismiss the plaintiff’s petition was not authorized by G. S. 1959 Supp., 44-709 (h), and the district court did not err in overruling it. It has been repeatedly and uniformly held that an order of the district court overruling a defendant’s motion to dismiss an action is not a final order as defined by G. S. 1949, 60-3303, and is not one from which an appeal lies to the supreme court until final disposition of the cause below. (Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571; Maichel v. Coleman, 167 Kan. 93, 204 P. 2d 731.) Moreover, the question of the plaintiff’s residence is one of fact, and this court does not propose to permit the Board to raise that question by a motion to dismiss the action before joinder of issues and trial upon the merits. (Billups v. American Surety Co., 170 Kan. 666, 670, 228 P. 2d 731; Breidenthal v. Breidenthal, 182 Kan. 23, 31, 318 P. 2d 981.)
The appeal is dismissed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmens compensation case from an order and judgment of the district court of Nemaha County reversing, vacating and setting aside an award of compensation made by the workmen’s compensation commissioner to the claimant.
Basically, the controlling question is whether the 1955 amendment to G. S. 1949, 44-504, now appearing as G. S. 1959 Supp., 44-504, applies to the factual circumstances presented by the record in this case. The injury occurred to the workman prior to the effective date of the amendment, but the recovery by judgment in a suit against the third party occurred subsequent to the effective date of the amendment to the statute.
The essential facts necessary to a complete understanding of the issues presented on appeal may be stated as follows:
For almost a year prior to the 29th day of November, 1954, the claimant (appellant) was employed by the Wenger Mixer Manufacturing Co., (appellee) of Sabetha, Kansas, as a salesman and sales manager. He called on feed mills and made sales of feed mixing and other feed producing machinery manufactured by his employer. He was also responsible for laying out the installation of such machinery. His average weekly wage during the six months’ period immediately preceding his accident was $165.95.
On the 29th day of November, 1954, the appellant met with personal injury by accident at Shenandoah, Iowa, while employed by the respondent. It is unquestioned that the injury arose out of and in the course of his employment with the respondent, and that the relationship of workman and employer existed at the time of his injury. The parties were and are governed by the Kansas workmen’s compensation act. The insurance carrier was the Hardware Mutual Casualty Company (appellee).
The appellant was injured by falling into the revolving hammers of a hammer mill which was used to crush and grind feed. The revolving hammers were on a cylinder driven by a 125 h. p. motor. The appellant’s feet and legs were severely mangled causing him to sustain a temporary total disability. At the hearing the appellant testified he was totally unable to perform ordinary manual labor and in his opinion his disability was permanent.
On the 4th day of June, 1955, the appellant filed an action in the United States District Court for the Southern District of Iowa, Southern Division, against Johnson Bros. Mills, Inc., for the recovery of damages on account of his injuries sustained by the accident of November 29, 1954. The appellant testified that Carl Keller, an adjuster for Hardware Mutual Casualty Company, called upon the appellant with one or more of the attorneys in the law firm of Baylor, Evnen & Baylor of Lincoln, Nebraska, while the appellant was in the Sabetha hospital, and also on a subsequent visit. According to the appellant Mr. Keller stated that said law firm was representing “them” for the purpose of this particular lawsuit. This firm filed and prosecuted the damage suit for the appellant.
On the 11th day of May, 1956, the appellant recovered a judgment against Johnson Bros. Mills, Inc., for $50,000.
In July, 1956, by agreement of the parties, after Johnson Bros. Mills, Inc., had filed a motion for a new trial and was threatening to appeal, the $50,000 third party judgment was settled for $45,000.
On the 29th day of August, 1956, the attorneys, Baylor, Evnen & Baylor of Lincoln, Nebraska, had collected and had in then-possession the $45,000, plus some court costs reimbursed that had been advanced by Hardware Mutual. On this date the appellant, accompanied by Harry A. Lanning, an attorney of Seneca, Kansas, met the Hardware Mutual adjuster at the law office of the above attorneys in Lincoln, Nebraska, at which time a settlement between the appellant, Hardware Mutual and the Lincoln attorneys was agreed upon. Hardware Mutual had paid compensation and medical bills pursuant to the Kansas workmens compensation act to and for the appellant prior and up to the date the judgment was paid in the amount of $6,018.48, and in the settlement Hardware Mutual was paid or credited with this amount out of the judgment proceeds. The accounting made in settlement was as follows:
“In Account Witi-i Baylor, Evnen & Baylor
cr. DR.
Received in settlement .........................$45,000.00
Reimbursement of court costs .................... 447.84
Subrogation, Hardware Mutual Casualty Company .... $ 6,018.48
Proportionate share of expense, figured at 3898/4500ths of $1435.88, being total costs and expense of $1,-883.72 reduced by reimbursed court costs of $447.84 .................................... 1,243.78
Remittance of court costs to Hardware Mutual Casualty Company................................... 447.84
Fee, figured at % of $37,737.74, being settlement of $45,000.00 less subrogation of $6018.48 and proportionate share of expense $1243.78 ................ 12,579.25
Remittance herewith........................... 25,158.49
$45,447.84 $45,447.84
I hereby August 31, 1956 approve of the above accounting and agree to distribution in accordance therewith.
Lee Flott”
The appellant testified that at the time this settlement was agreed upon Mr. Keller, the adjuster for Hardware Mutual, stated, as a part of the discussion that led up to the agreement, that “all future medical and compensation would be paid by the company, the Hardware Mutual Insurance Company, up to the full amount of its obligation, under its policy;” that Mr. Keller offered a lump sum settlement as to workmen’s compensation but it was not agreed upon; and that the appellant relied upon Mr. Keller’s statements to the effect that the company would continue making medical payments and compensation to the extent of its liability under the policy in making such settlement.
The parties stipulated at the hearing before the examiner concerning statements made at the Lincoln office. It was stipulated the appellant was told that Hardware Mutual Casualty Company “would thereafter continue to pay claimant’s proper medical, surgical, nurse, hospital and medical or surgical apparatus and appliances and medicine for claimant to the extent of its liability under said policy,” identified as the policy of workmen’s compensation insurance that was in effect on the Wenger Mixer Manufacturing Co., giving its number, and “continue paying compensation to the claimant to the extent of its liability under the Workmen’s Compensation Law of the State of Kansas.” The policy of insurance was admitted into evidence and discloses an additional medical coverage endorsement to the extent of $10,000 attached to the policy.
After the above settlement Hardware Mutual continued paying compensation and medical or hospital expenses of the appellant up to the 12th day of April, 1959, compensation having been paid at the rate of $28 per week.
Application for hearing and claim for compensation was filed by tiie appellant with the workmens compensation commissioner on the 24th day of June, 1959.
At the hearing it was stipulated that medical and hospital expenses had been furnished the claimant by the respondent and insurance carrier in the amount of $3,195.42, all of which were itemized, and that compensation had been paid in the amount of $28 per week for 226 weeks totaling $6,328.
On the 28th day of September, 1960, the commissioner found that the appellant’s average weekly wage was $165.95; that as a result of his injury he sustained a temporary total disability; that he should be awarded compensation at the rate of $28 per week for 415 weeks; and that the respondent and insurance carrier should be ordered to pay all reasonable and necessary medical expense that appellant had incurred and all further medical and hospital expense necessary or required by the appellant not to exceed the applicable policy limits. Whereupon an award was made accordingly, a portion of which reads:
. . As of September 26, 1960, 303 weeks of compensation for temporary total disability are due the claimant at the rate of $28.00 per week, or $8,484.00 less compensation heretofore paid in the amount of $6,328.00, leaving a balance due the claimant of $2,156.00 which is ordered paid in one lump sum. The balance of compensation awarded herein is ordered paid at the rate of $28.00 per week for not to exceed an additional 112 weeks, or until the further order of the Commissioner.”
On appeal the district court reversed the commissioner and denied compensation. In his memorandum opinion the trial judge, after citing Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, regarding the construction of the workmen’s compensation act, and quoting the first three syllabi thereof, said:
"It is necessary to determine whether the amendment of 1955 was a change in substantive law or is merely procedural.
“The right of the respondent is against the money collected by the complainant in the third party action, and is an action in rem; the res was not created until subsequent to the adoption of the 1955 amendment in that the settlement was not made until time subsequent thereto. It would seem that the law in effect at the time of the creation of the res is applicable. The employer’s right .to .reimburse, credit or'lien does not attach until the employee effects a settlement or recovers a judgment against the third party. Until then any theoretical contingent Tights’ are best inchoate. It is the recovery which fixes the employee’s obligation to reimburse; just as it is the date of injury that fixes the employer’s obligation to compensation. In this case the 1955 amendment was in effect on the date recovery was made by the employee against a third party. It follows that the 1955 amendment is the controlling statute in this case and that. the award of the commissioner should be reversed and vacated.
“The question of whether the insurance carrier and respondent are entitled to recover any of the money paid to the complainant since the date of the third party recovery is not before the court in this case and no decision is made on that question.”
Appeal has been duly perfected presenting the issues hereinafter considered. The parties concede the credit for future payments under the workmen s compensation act is the only matter before the court.
On May 1,1955, an amendment to 44-504, supra, became effective. Prior to this amendment 44-504, supraf provided that in the event the injured employee should recover from a negligent third party by judgment, settlement or otherwise, the employer should be subrogated to the extent of the compensation and medical aid provided by him to the date of such recovery “and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien.”
The 1955 amendment added the following to this section of the statute:
“. . . Provided, That whenever any judgment in any such action shall be recovered by the injured workman, his dependents or personal representative prior to the completion of compensation or medical aid paymeiits, the amount of such judgment actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment shall be credited against future payments of said compensation or medical aid. . . .”
The 1955 amendment also added at the end of this section of the statute the following sentence:
“. . . The court shall fix attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court.”
Thus, briefly stated, it may be said the 1955 amendment made two changes in the 1947 act (G. S. 1949, 44-504): (a) It,provided that whenever any judgment was recovered and actually paid the portion thereof which is in excess of the amount of compensation and medical aid paid to the date of recovery, shall be credited against future payments; and (b) that the court shall fix attorney fee? to be paid proportionately by the employer and the employee in the amount determined by the .court. , , ...
It is argued by.the appellant that under the 1947 act, which was in effect at the time of this accident, when the appellant recovered from the negligent third party the employer was not entitled to be subrogated except to the extent of compensation and medical aid provided by him to the date of such recovery. (Clifford v. Eacrett, 163 Kan. 471, 183 P. 2d 861; and Babcock v. Dose, 178 Kan. 700, 290 P. 2d 1046.)
The appellant’s argument proceeds on the theory that the workmen’s compensation law fixes the liability of an employer to his employee where both parties are under the act, and this liability is founded upon the contract of employment, the terms of the statute being embodied in the contract. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; Johnson, Guardian, v. Milling Co., 116 Kan. 731, 229 Pac. 359; and Davis v. Reed, 188 Kan. 159, 360 P. 2d 847.)
The appellant further contends the rights of the parties under the statute in question are substantive, and are therefore determined by the law in effect on the date of the injury. (Ellis v. Kroger Grocery Co., supra.) It is argued a statute is to be given a construction of retroactive effect only when the intention of the legislature that it shall have a retroactive effect is clearly expressed. (Elam v. Bruenger, 165 Kan. 31, 193 P. 2d 225, and cases cited therein.)
On the other hand, the appellees contend the statute in effect on the date of the third party recovery is controlling and that no vested or substantive rights of the parties hereto were changed by the 1955 amendment, the only change being the distribution between the employee and the employer of the amount recovered from the third party.
The appellees also contend die prospective or retrospective operation of the 1955 amendment is not the basic question, as the primary point to be considered is whether any vested rights accrued between the appellant and the appellees under 44-504, supra, prior to recovery from the third party.
Relying upon language in Clifford v. Eacrett, supra, the appellees argue the interpretation to be placed upon the statute here in question cannot include, or be limited to, the contractual rights and obligations between the employer and employee, but must be interpreted strictly on the basis of the statutory language.
The question presented by the foregoing arguments of counsel has not heretofore been passed upon by the Supreme Court, but it would at best be academic to now decide such question based upon the record presented in this case. The parties at the time of settle ment in August of 1956 placed their own interpretation upon the statute and thereby fixed their respective rights and obligations.
The third party judgment was far in excess of the insurer’s liability under the applicable policy of insurance and the workmen’s compensation act for both medical and compensation payments, and, if the 1955 amendment was the governing law, it would not have had to pay any more after the recovery in the third party action — the amount of its credit would have exceeded its obligations by a large amount. In view of this, its promise to continue paying the claimant to the extent of its liability under the policy and to the extent of its liability under the workmen’s compensation law of the State of Kansas, coupled with its continued payments of both medical and compensation for two years and eight months, clearly established their construction of G. S. 1949, 44-504, and the nonapplicability of the 1955 amendment thereto.
Insofar as the appellees (the respondent and its insurance carrier) are concerned, they stand in the same position in this case, and the employer is bound by the acts of its insurance carrier. (See, 44-504, supra.)
The law favors the compromise and settlement of disputes and when parties, in the absence of any element of fraud or bad faith, enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it. (Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 349 P. 2d 931, including cases cited therein; and Sutherland v. Sutherland, 187 Kan. 599, 358 P. 2d 776.)
Obviously, the appellant changed his position by reason of promises and representations made by Hardware Mutual at the time of settlement. The lump sum settlement offer of Hardware Mutual as to future medical and compensation payments under the policy of insurance and the workmen’s compensation act was rejected by the appellant. Had the appellant not believed and relied upon the promises and representations that the insurer would continue the compensation and medical aid payments, or had Hardware Mutual told the appellant it would insist on the credit under the 1955 amendment, the appellant woud have considered the offer in an entirely different light. Furthermore, had the appellees insisted upon the application of the 1955 amendment, the subrogation credit would have been larger and the deduction for attorney fees smaller. The appellant may have been far more difficult to deal with as to the amount of attorneys fees he was to pay. In other words, there was consideration for tire promise of Hardware Mutual that it would continue to pay the appellant medical aid to the extent of its liability under its policy of insurance, and compensation payments to the extent of its liability under the workmen’s compensation law.
The appellees argue “if the contention of the appellees is upheld [as to the applicability of the 1955 amendment], then it is quite obvious a common mistake was made in May, 1956, and must and should be corrected at this time, as the claimant has been paid more compensation and furnished more medical and hospital aid than the provisions of the Kansas Workmen’s Compensation Law requires.” (Emphasis added.)
It is wholly gratuitous and self serving on the record here presented for the appellees to contend the appellant was influenced by mistake in making the settlement. If a mistake was made at all, it was the appellees who made it and not the appellant. Furthermore, the mistake, if any, was a mistake of law and not a mistake of fact. The parties at the time of settlement knew precisely what all the facts were and exactly what they were negotiating for in terms of dollars and cents.
It is a legal maxim that everyone is presumed to know the law. (Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225, cert. den. 362 U. S. 970, 4 L. Ed. 2d 901, 80 S. Ct. 956; In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689, 81 A. L. R. 2d 806; George v. Oxford Township, 16 Kan. 72; and McConnell v. Hamm, 16 Kan. 228.) The appellees, both doing business in Kansas, are presumed to have known the law of Kansas at the time of settlement, and if the 1955 amendment governed this case at that time they are presumed to have known it.
It has been held that a mistake of law does not excuse a party to a contract, unless it be a mutual mistake of both parties thereto, and then is analogous to a mistake of fact, but if there is mutuality of mistake, either of law or of fact, the party upon whom the burden rests must allege and prove such fact. (Grant v. Isett, 81 Kan. 246, 105 Pac. 1021.)
In Janicke v. Telephone Co., 96 Kan. 309, 150 Pac. 633, Justice Rousseau A. Burch, speaking for the court, said:
“No precise or comprehensive rule can be stated governing the subject of relief from the civil consequences of a mistake of lato. The mere fact that a contract was made or other conduct was induced by such a mistake is not enough. If it were, ignorance might be more profitable than knowledge, the certainty and security of property and other rights would be destroyed, and the stability and tranquillity of society could no longer be maintained by means of the law. The mistake must be such that the parties are in effect unintentionally made to do something which would confer undue advantage or cause unjust prejudice unless corrected. One party must be benefited or the other party burdened without consideration, or the circumstances must otherwise be such that it would be unconscionable to deny reformation, cancellation or rescission; and the party seeking absolvence must comply with all those conditions which are imposed on every one who invokes the aid of a court of equity. Besides this, the misconception must be of some plain rule of law which clearly would have governed if known and not of some principle of doubtful validity or uncertain application because not well established or defined; and if there be doubt or contention respecting legal rights, and instead of ascertaining and enforcing them parties with equal knowledge or means of knowledge settle the matter by fair compromise free from fraud, the compromise will stand, although it would not have been made had the law been understood." (pp. 311, 312.) (Emphasis added.)
It has also been held where a person elects to pursue one of two statutory remedies, and upon the hearing of his claims under it is defeated because of its constitutional invalidity, he cannot on appeal change his position and elect to treat his petition as filed under the other statute. (Enterprise v. Smith, 62 Kan. 815, 62 Pac. 324.)
It is, of course, recognized that the promise of Hardware Mutual to continue making payments to the extent of its liability under the policy of insurance in question, and to the extent of its liability under the workmen’s compensation law of the State of Kansas, was not incorporated in the written accounting heretofore quoted, but it was nevertheless made in the course of negotiations and relied upon by the appellant in making the settlement. It is therefore entitled to due consideration as a part of the contract of settlement. The appellees acknowledged their obligation as a result of the settlement and continued payment of compensation and medical aid from August 29, 1956, until April 12, 1959, a period of almost three years.
The right to subrogation may be waived or the subrogee may be estopped to assert his right thereto. It is said in 83 C. J. S., Subrogation, § 13, pp. 610, 611:
“Subrogation, being an equity springing from the relation between the parties, and created and enforced for the benefit and protection of the one in whose favor it is originated, may be modified or extinguished by contract, or may be waived, either expressly or by implication. . . .
“The ordinary doctrine of estoppel applies to the subrogee’s right to subrogation. . . .”
In practice, it is required of everyone to take advantage of his rights at a proper time, and his neglect to do so will be considered as a waiver. Thus, it has been held any positive act done by the subrogee at the time of or subsequent to payment, inconsistent with the enforcement of the right, will be considered as a waiver. (Davidson v. McKown, 157 Kan. 217, 139 P. 2d 421; and see, Shattuck v. Bank, 63 Kan. 443, 65 Pac. 643.)
Technically, a distinction exists between “waiver” and “estoppel.” Waiver is ordinarily the intentional relinquishment of a known right and is a voluntary act. It is the expression of an intention not to insist upon what the law affords. While it is consensual in nature, the intention may be inferred from conduct, and the knowledge may be actual or constructive, but both knowledge and intent are essential elements. Estoppel, on the other hand, is not consensual in character. It is recognized, not to give effect to a presumed intention, but to defeat the inequitable intent of the party estopped. It is the misleading of a party entitled to rely on the acts or statements in question, and a consequent change of position to his detriment. (Marett v. World Fire & Marine Ins. Co., 160 Kan. 125, 160 P. 2d 664; Seavey v. Erickson, 244 Minn. 232, 69 N. W. 2d 899; and 29A Am. Jur., Insurance, § 1010, p. 184; see, also, Pelischek v. Voshell, 181 Kan. 712, 717, 313 P. 2d 1105.)
On facts analogous to the instant case the Supreme Court of California in Jacobsen v. Industrial Acc. Com.., 212 Cal. 440, 299 Pac. 66, said:
“[7] The respondent corporation insists that in the ascertainment of the amount of its lien its expenditures for compensation not yet paid but which it is obliged to pay in the future should be included. The petitioner replies that the statute specifies 'expenditures for compensation’, which means, he argues, past expenditures for compensation only; that none but these may be asserted as a lien and that future expenditures under the award may not be included. We are inclined to agree that properly construed, the words 'expenditures for compensation’ would include expenditures paid and to be paid under the award of the commission and that both should be allowed as a first lien on the judgment to the extent to which they are entitled. [8] The respondent corporation has, however, been reimbursed for expenditures already paid and it may not now be heard to claim reimbursement for amounts it is under obligation to pay for the following reasons: Said corporation received the notice required by the statute of the pendency of the action brought by its employee. It presented its application for a lien on the judgment to be rendered in the form of a stipulation for judgment, specifying therein the amount of its past expenditures only. If it desired to assert a lien for future expenditures, then was the time to do it. It failed then to assert its right and must be deemed thereby to have waived it. Also by the terms of the stipulation for judgment, satisfaction of judgment and receipt of the amount of the lien successfully asserted, all of which documents were duly signed by its authorized representative, said corporation clearly led the peitioner herein to believe that no further lien would be asserted and thus estopped itself from making a claim for further reimbursement. The waiver of its right, assertable in court, would be all-sufficient, but in addition thereto we hold that the conduct of said corporation in the court proceeding has foreclosed it from taking a position before the Commission different from that assumed by it before the court. (Subd. 3, sec. 1962, Code Civ. Proc.; Morris v. Standard Oil Co., 77 Cal. App. 720, 723 [247 Pac. 583].)” (pp. 449, 450.)
Upon all the facts and circumstances presented by the record herein, we think the appellees waived their right to claim a credit upon the appellant’s third party judgment for future medical and compensation payments by their failure to assert such claim for credit at the time of settlement and distribution of the proceeds of the judgment, as agreed upon the 29th day of August, 1956. There could be no better proof that such was the intention, than the continued payment of compensation and medical aid from August 29,1956, until April 12, 1959, a period of almost three years.
Furthermore, the statement of Mr. Keller, the adjuster for Hardware Mutual, on behalf of the appellees at the time of settlement, to the effect that the insurer would continue making payments to the extent of its liability under the policy of insurance in question, and to the extent of its liability under the workmen’s compensation law of the State of Kansas, clearly led the appellant to believe that no further claim would be asserted for credit by way of subrogation, than the sum paid prior to the date of recovery of the third party judgment, and deducted as a subrogation credit in the accounting at the time of settlement. The appellees were thereby estopped from making a further claim for credit by asserting the 1955 amendment before the workmen’s compensation commissioner in these proceedings.
The judgment of the lower court is reversed with directions to reinstate the award made by the commissioner, subject to such modification as may be necessary by reason of the additional delay in time. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from decisions made by the district court in connection with a proceeding instituted by motion, under the provisions of G. S. 1949, 60-3220 and 60-3221, to revive a dormant alimony judgment.
The undisputed events leading up to the institution of the proceeding are necessary to a proper understanding of the appellate issues involved and should first be stated.
In what appears to have been a friendly divorce suit, at least so far as it related to a division of the existing property rights, Barbara May Weber, hereinafter referred to as Barbara, was granted a divorce from Warren Lamarr Weber, hereinafter referred to as Warren, by the district court of Geary County on August 16, 1957. By the terms of the divorce decree, approving a contract making disposition of the property and other rights of the parties, Barbara was awarded a judgment against Warren for $15,000.00, cash alimony, payable in stated installments.
Barbara left the Weber home in Junction City on or about the day the divorce was granted. Soon thereafter she and her mother, Isabel M. Green, who will hereinafter be referred to as Isabel or administrator, left Junction City for Colorado. They remained awhile in Colorado and then left for Las Vegas, Nevada, where they lived at the Thunderbird Hotel for a short time. Later they moved into an apartment.
The record as to how long the mother and daughter lived in Las Vegas is indefinite. However, it does disclose that in January and February, 1959, Barbara was back in Colorado and Isabel had returned to her home in Wichita. Later, and during the forepart of 1959, Barbara moved to Wichita where, following an automobile accident, she died intestate on August 10, 1959, leaving Isabel as her sole and only heir at law.
Subsequently, in probate proceedings not here in question, Isabel was appointed as administrator of Barbara’s estate. Thereafter, and on November 22, 1960, the proceeding referred to in the first paragraph of this opinion was commenced by the administrator, in manner and form as indicated, in the district court of Geary County.
The motion to revive the judgment came on for hearing in due course before the district court. At the outset counsel for the re spective parties made it clear to the court the judgment was subject to revivor in the name of Isabel, as administrator of the estate of Barbara. They then announced in open court the only issues between them were founded on their respective differences as to the balance due from Warren to the administrator on the alimony contract and agreed to submit those issues to the court for its decision and judgment. Following these announcements the district court, sitting as a court of equity, proceeded to hear all evidence adduced by the parties, found that the judgment theretofore rendered in the case on August 16, 1957, should be revived against the defendant, Warren Lamarr Weber, subject to a credit on said judgment of payments theretofore made in the total amount of $14,467.00, leaving a balance on such judgment of $533.00, and then rendered judgment reviving the judgment of August 16, 1957, in the name of Isabel M. Green, administrator of the estate of Barbara M. Weber, deceased, in the amount of $533.00.
Thereupon Isabel, as administrator of the estate of Barbara, perfected an appeal from the foregoing decision and judgment and brings the case to this court under specifications of error to which we shall presently refer.
A preliminary question requires attention. Appellee’s motion to dismiss the instant appeal, filed sometime before the case was set for hearing, was denied by this court with leave to renew at the hearing on the merits. The motion was renewed and argued in accord with the permission granted and has been considered. Contrary to Appellee’s position, we hold that a motion for a new trial is neither necessary nor required in order to obtain appellate review of a decision rendered after a hearing in a proceeding such as is described in the first paragraph of this opinion. Therefore the motion to dismiss the appeal must be again denied. For decisions fully demonstrating that our statutes (G. S. 1949, 60-3001, et seq.) do not provide for the filing of a motion for a new trial upon the hearing of a motion see Vole Irrigation Supply v. Knackstedt, 186 Kan. 143, 144, 348 P. 2d 602; Walker v. Meschke, 178 Kan. 149, 153, 283 P. 2d 424; Achenbach v. Baker, 157 Kan. 292, 139 P. 2d 407; Kessler v. Frost, 103 Kan. 711, 713, 175 Pac. 967; McDermott v. Halleck, 65 Kan. 403, 69 Pac. 335.
A further recital of uncontroverted facts is required in order to insure a proper understanding of the issues.
During the course of the hearing on the motion the parties, who will now be referred to as appellant and appellee, agreed that $8,-800.00 had been paid by appellee on the alimony judgment, prior to the death of Barbara by reason of the depositing, by appellee, of amounts totaling that sum to Barbara’s account in the First National Bank of Junction City, in accord with the terms of the contract theretofore approved and made a part of the divorce decree by the district court. Later, and on oral argument in this court, counsel for appellant, with commendable candor, frankly admitted that an additional $100, in controversy in the court below and hence included in the appeal, had also been paid by appellee. Thus it appears that credits of $8,900.00 of the total credit ($14,467.00), allowed by the district court in connection with the revival of the judgment, are conceded to be proper and require no further attention.
The remaining credits allowed by the district court on the judgment, amounting to $5,567, are subject to review and for purposes of this appeal, can be classed.
Class (1) includes:
(a) A claim that on February 10, 1959, while in Las Vegas, appellee paid for Barbara the sum of $3,000.00, pursuant to a statement of account presented to him by the Thunderbird Hotel, showing that while Barbara was in Las Vegas she became indebted to that institution in that amount on an account, which had never been paid.
(b) A claim that on August 16, 1957 (the date of the divorce decree), Barbara, while leaving the family home, preparatory to fulfilling her theretofore announced plan of moving to Las Vegas, surreptitiously picked up two checks, signed by the United Film Service, one for $270 and another for $250, belonging to appellee, which she subsequently cashed notwithstanding the fact that, under the terms of the divorce decree, appellee was the owner of the checks and she had no right, title or interest therein.
(c) A claim that in August 1959, immediately after Barbara’s death, appellee paid the appellant $1,000 in cash in order to make provision for the payment of Barbara’s funeral expenses.
Class (2) includes:
(a) A claim that in 1956 appellee made appellant and her husband a thirty day personal loan of $1,300 and that by a letter, dated after Isabel had been appointed as administrator of Barbara’s estate, Isabel advised appellee he could deduct $800, which she and her husband still owed on the loan, as a credit on the judgment. In passing we note the judgment was then an asset (Chapman v. Chapman, 184 Kan. 319, 320, 336 P. 2d 407; Bowman v. Bowman, 155 Kan. 602, 127 P. 2d 464) or Barbara’s estate.
(b) A claim that Isabel, in the same letter, had agreed to credit such judgment with the sum of $247 by reason of interest due appellee on the above mentioned personal obligation of Isabel and her husband.
The record, as it relates to claims set forth in subdivisions (a), (b) and (c) of class (1), discloses no evidence to refute appellee’s evidence to the effect that payments were made by him as therein indicated, for the benefit of his divorced wife. Indeed, from a factual standpoint, appellant makes no serious contention to the contrary. Under such circumstances we must assume the payments were made in the amounts and for the purposes indicated and that the trial court proceeded upon that basis in reaching its decision on the motion to revive the judgment.
So far as it relates to subdivision (a) of class (2) the record discloses evidence supporting the facts as therein set forth and stated. However, no such conclusion can be reached with respect to subdivision (b) of the same class. We find no evidence whatsoever to sustain appellee’s position that Isabel, either expressly or by inference, ever agreed to credit Barbara’s judgment with interest due, or claimed to be due, from her and her husband on their personal obligation.
Appellant specifies error on the part of the trial court in allowing appellee the three items, heretofore set forth in class (1) as credits on the original alimony judgment. Conceding the payments therein described were made in the manner and for the purpose previously mentioned, the essence of all contentions advanced by her with respect to the allowance of these claims is that, as a matter of law, such payments do not constitute credits which the court was authorized to allow against the judgment in a proceeding, such as is described in the first paragraph of this opinion. Let us see. We know of, and have been cited to, no Kansas cases where the question thus raised has been considered or decided. Moreover, our research discloses no decisions from foreign jurisdictions where it has been held that a district court, which originally rendered the alimony judgment, is powerless to allow credits of the kind in question when, by motion, it is called upon, under the conditions and circumstances here involved, to sit as a court of equity and revive its prior dormant judgment under the provisions of G. S. 1949, 60-3221.
Therefore, having carefully considered the matter, we hold that in this jurisdiction where the parties proceed by motion to revive a dormant alimony judgment under the provisions of G. S. 1949, 60-3221, the district court, under conditions and circumstances such as have been heretofore related, sits as a court of equity with power and authority to determine whether payments, claimed to have been made by the alimony judgment debtor for the benefit of the alimony judgment creditor, were made in the amounts and for the purposes claimed; and that when, based on evidence submitted, at the hearing of such a proceeding, the district court finds payments were made in amounts claimed for the benefit of the judgment creditor that tribunal, in the exercise of sound judicial discretion, has power and authority to allow the alimony judgment debtor credit for such payments in its determination of the amount for which the dormant judgment will be revived. We further hold that when a dormant alimony judgment is revived under the related conditions and circumstances this court, on appeal, will not disturb credits allowed by the trial court in reviving such judgment unless the record fails to disclose any substantial evidence sustaining their allowance.
After carefully reviewing the record we are convinced it discloses some substantial evidence to warrant the trial court’s action in allowing the three items (see class 1 [a], [b] and [c]) now under consideration as credits against the alimony judgment. Therefore it cannot be successfully argued the trial court erred in crediting those items against such judgment.
Appellant also claims that the trial court erred in allowing the two items, heretofore set forth in class (2), as credits on the alimony judgment. Heretofore we have indicated there was no evidence to sustain the credit, fully described in subdivision (b) of class (2), claimed by appellee.
We therefore turn to the claim made by appellee in subdivision (a) of class (2), which is the only remaining claim involved. Arguments advanced by the parties with respect to this item will not be labored. It suffices to say: First, that the record discloses no evidence to establish that the loan made by appellee to Isabel and her husband was Rarbara’s debt or that she had ever incurred any obligation whatsoever to pay it, hence it cannot be said appellee’s attempt to charge the amount of such item against the judgment inured to Barbara’s benefit. Second, that Isabel, in promising, as an individual, to pay appellee the amount which she and her husband still owed him on their personal loan, had no power or authority to obligate Barbara’s estate to pay that obligation. It follows the trial court erred in allowing appellee credit on the alimony judgment for the amount of the item claimed by him in subdivision (a) of class (2).
What has been heretofore stated and held requires that the action of the district court in reviving the dormant alimony judgment must be affirmed in part and reversed in part with directions to revive such judgment in the name of Isabel M. Green, administrator of the estate of Barbara May Weber, deceased, in the amount of $1,580.00.
It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an action brought by the owners of an oil and gas lease to determine the owners of the mineral interests in certain real estate, and the ownership of the one-eighth royalty interest due and payable under the terms of such lease.
The petition alleged in substance that plaintiffs are the owners of an oil and gas lease on the Southwest Quarter (SW11) of the Southeast Quarter (SEM) of Section Seven (7), Township Thirty-five (35) South, Range Twelve (12) East of the Sixth Principal Meridian, Chautauqua County, Kansas; that under the terms of the lease, plaintiffs are obligated to pay a royalty interest of an undivided one-eighth to the persons who are the owners of such royalty interest, but because of the conflicting claims between the owners plaintiffs do not know and are unable to ascertain the owners of such royalty interest. The petition asked that all the defendants be required to set up their purported claims, that the court determine their interests and bar all of the defendants from claiming any other right, title or interest therein.
The defendants, Ben J. and Lora B. Funk, answered alleging they had acquired the entire mineral interest by a sheriff’s deed in a tax foreclosure action. The defendants, Lewis and May Woodard, answered alleging they are the owners of a one-half interest in the minerals which was conveyed to them by the Funk’s. Any controversy heretofore existing between the Funks and the Woodards has been settled and they now appear in these appeals as appellees, having filed a joint counter-abstract and brief.
The 'defendants, Pauline Jack, William F. and Lena Claire Jack, husband and wife, and Margaret Lemmon, answered alleging that they owned an interest in the minerals, which was later stated by their counsel to be a total of three-tenths. They now appear as appellants in these appeals, claiming that, as they had no notice of the tax foreclosure proceedings and were not made parties, their interests could not be foreclosed.
The original plaintiffs have maintained an impartial attitude throughout all of the proceedings, including these appeals.
The facts alleged in the various pleadings are not disputed. A brief review of such facts, as gleaned from the pleadings, may tend to simplify the issues.
W. F. Lemmon owned the mineral interest in the land in question. He died and, under the residuary clause in his will, the mineral interest passed to numerous persons including these appellants. His will was admitted to probate in Montgomery County, Kansas, on September 30, 1931, and the estate was finally settled on May 25, 1933. On May 6, 1933, the will was recorded in the probate court of Chautauqua County. The specific interests claimed by appellants were never made a matter of record nor listed for taxes as provided by G. S. 1949, 79-420 (now G. S. 1961 Supp., 79-420).
The appellants never paid any taxes, never exercised any control and, according to statements made in the briefs which are not denied, made no claim to such mineral interest until, or shortly before, the petition was filed in this action on June 8, 1960.
On May 25, 1936, three of the beneficiaries under the will of W. F. Lemmon conveyed a three-fourths interest in the minerals to C. R. Ross. On May 26, 1936, another beneficiary conveyed a one-fourth interest in the minerals to C. R. Ross. Ross exercised full ownership over the mineral rights, all of which were listed for taxation in his name, and paid all taxes thereon until the year 1944, when such taxes became delinquent.
On October 7, 1953, an action was filed in the name of the Board of County Commissioners for Chautauqua County, Kansas, for the foreclosure and sale of the mineral interests in question. The petition alleged that C. R. Ross was the owner of the mineral interests and that Ross Oil and Gas Company and Chautauqua County claimed some interest in them; that they were unpaid taxes, describing them, levied against such mineral interests for the years 1944, 1945, 1948, 1950, 1951 and 1952. Service was made by publication upon the above named defendants, naming them, and “all other persons who are or may be concerned.” The publication described the mineral interest being foreclosed and gave the amount of delinquent taxes due upon it. On January 21, 1954, the district court of Chautauqua County entered its order finding that there was unpaid taxes upon the mineral interest; that the owners and claimants were as set out in the petition; foreclosed the lien for taxes, and ordered the property sold to satisfy the costs and lien. On February 8, 1954, an order of sale was issued to the Sheriff of Chau tauqua County. Following publication of the notice of sale, describing the mineral interest, naming C. R. Ross as the owner and the amount of taxes and costs due, such Sheriff proceeded to sell the mineral interest on March 16, 1954, to the appellee, Ben J. Funk. On May 13, 1954, the district court of Chautauqua County confirmed the sale and ordered the Sheriff to execute and deliver a deed to the purchaser at the tax sale. On May 15, 1954, a sheriff’s deed was delivered to Ben J. Funk and Lora B. Funk.
The controversy was presented to tire district court on pretrial conference, at which time it was agreed that the court should first determine the effect of the tax foreclosure action. On April 15, 1961, the court filed a memorandum opinion in which it stated:
“It is the opinion of the court that the determination of one question fully disposes of the case and that the consideration of other questions presented is not necessary. The particular question involved is whether the interests of defendants Pauline Jack, William F. Jack and Margaret Lemmon were extinguished by the sale of the mineral rights involved under the tax foreclosure proceedings stipulated to as having taken place at the time and in the manner stated into the record. It is the opinion of the court that the interests of the said defendants were extinguished.”
Judgment was entered in accordance with the memorandum opinion and a separate appeal perfected therefrom was here docketed as Case No. 42,664. A subsequent appeal from the trial court’s order overruling a motion for a new trial was here docketed as Case No. 42,783. Later the appeals were consolidated.
Appellants, conceding that their contentions constitute a collateral attack on the tax foreclosure judgment, present the following questions for appellate review.
“Can an interest in real estate be extinguished in a tax foreclosure suit in which the known owners of such interest are not made parties to the tax foreclosure suit?
“Does a sheriff’s deed issued in a tax foreclosure proceeding purporting to convey the interest of owners of real estate who are not parties to the foreclosure proceeding become final and absolute after the lapse of twelve months under Section 79-2804 (b), G. S. 1949, and if this section be so construed, does it violate the Constitution of the State of Kansas and the Constitution of the United States?”
We will first consider the statutes relating to the taxation of real estate and proceedings to collect such taxes.
G. S. 1949, 79-101, reads:
“That all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.”
G. S. 1949, 79-1804 [now G. S. 1961 Supp. 79-1804], provides:
“All taxes shall be due on the first day of November of each year. A lien for all taxes shall attach to the real property subject to the same on the first day of November in the year in which such tax is levied, and such lien shall continue until such taxes and penalty, charges and interest which may have accrued thereon, shall be paid by the owner of the property or other person liable to pay the same: . . .”
G. S. 1949, 79-2301, et seq., contains provisions for the sale of real estate for taxes.
Proceedings to enforce a lien for unredeemed real estate bid in by the county by judicial foreclosure and sale are provided by G. S. 1949, 79-2801, which states in part as follows:
“That in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale and shall remain unredeemed on the first day of September of the third year after such sale, or any extension thereof as provided in section 79-2401a of the General Statutes Supplement of 1947 or any amendments thereto, the board of county commissioners shall order the county attorney and it shall be the duty of the county attorney to institute an action in the district court, in the name of the board of county commissioners, against the owners or supposed owners of such real estate and all persons having or claiming to have any interest therein or thereto, . . .” (Emphasis supplied.)
Appellants’ contentions apply chiefly to the interpretation of G. S. 1949, 79-2804b, which, insofar as here material, provides:
“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of section 79-2803 of the General Statutes Supplement of 1947 or amendments thereto, or any sale made under the provisions of section 79-2804 of the General Statutes Supplement of 1947 or any amendments thereof, but every such action or proceeding, including those brought to set aside judgments on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within twelve months after the date the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court. The time limitation herein fixed for the bringing of any such action or proceeding shall be construed as a condition precedent to the bringing of any such action or proceeding and shall not be construed as a statute of limitations. . . .”
The appellants contend that the provisions of the above statute do not apply to owners who were not made parties to the tax foreclosure action.
We cannot agree with appellants’ contention. The language used in the statute is clear and requires no interpretation. The time limitation is a condition precedent to bringing the action. Every action brought to set aside a tax foreclosure judgment must be brought within twelve months after the date the sale was confirmed by the court. The contention of the appellants might have been proper if addressed to the district court in a timely proceeding to vacate or set aside the tax foreclosure judgment.
The court, as early as 1880, in Pritchard v. Madren, 24 Kan. 486, held:
“Where the statute expressly authorizes service by publication of notice to all parties interested in lands upon which tax liens are sought to be foreclosed, such service must be held sufficient to sustain the jurisdiction, although the owner be a resident of the county, and not personally named in the notice, or otherwise served with process. Gulf R. Co. v. Shepard, 9 Kan. * 647; Fudge v. Fudge, 23 Kan. * 416.
“Under said chapter 39, a failure to state the name of the true owner of the land in the petition and j'udgment will not vitiate the proceedings or render the j'udgment void.” (Syl. |¶ 5, 6.)
Later in Sheridan County Comm'rs v. Acre, 160 Kan. 278, 160 P. 2d 250, we reached conclusions of law similar to those announced in the Pritchard case and, in doing so, said:
“The legislature also provided (G. S. 1943 Supp. 79-2804b), that legal or actionable proceedings may be brought to open, vacate, modify or set aside any j'udgment in a tax foreclosure action, or any sheriff’s sale in such an action. So, the legislature, recognizing the difficulty the county attorney might have to ascertain the owner, or supposed owner, or the names of all persons having or claiming an interest in the property, provided that any party to the action might file an answer which would present his claim to such ownership or interest, and then gave an additional time of six months for the bringing of an action to open, vacate, or modify the j'udgment. The appellee here took no advantage of any of the provisions of the statute above mentioned for its benefit in that regard . . .” (p.287.)
The question remains, does this strict application of the statute violate the due process clause of the Federal Constitution or Section 2 of our Bill of Rights?
We must answer this question in the negative. A tax levied on an interest in real property is levied against the property. It is not a personal charge against the owner. However, every owner knows, or if not by virtue of existing law is bound to know, that a tax will be levied against all real property; that if the tax is not paid it will become a lien against the property; that in due time the tax lien will be foreclosed; and that in due time the property will be sold and he will have but twelve months after the sale is confirmed to challenge the proceeding.
The tax statutes, to which we have previously referred, give the owner of real property notice of the steps that will be taken in the levy and collection of taxes. If the owner sees fit to neglect the payment of the taxes he knows to be due, the duty is imposed upon him to watch the various tax proceedings and protect his interest. No other actual notice is required. (Consolidated Motors, Inc. v. Skousen, 56 Ariz. 481, 109 P. 2d 41, 132 A. L. R. 1040, 1045.)
An action to foreclose a tax lien is a proceeding in rem against the property. Here the property was properly described in the petition and in the publication notice.
The appellants rely chiefly on the case of Walker v. Hutchinson City, 352 U. S. 112, 1 L. Ed. 2d 178, 77 S. Ct. 200. The case is not a precedent for the question now before us. There the court was dealing with a condemnation case. The owner had no reason to anticipate that his land was being condemned and proper notice was necessary.
The well-considered case of Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P. 2d 183, appears to be decisive of the question now under consideration. Therefore we quote at length from the opinion, which reads:
“The constitutionality of statutes prescribing the method of collection of taxes, under which personal notice of the pendency of such proceedings has not been given, has been challenged from time to time on the ground that they violate the due process clause of the federal Constitution. Such statutes have been uniformally sustained on the ground that the proceedings for the collection of taxes are in rem, and require no personal service of notice upon the owner or lienor of the land.
“In Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 537, 538, 40 L. Ed. 247, 16 S. Ct. 83, Mr. Justice Brewer said:
“ ‘. . . That the notice is not personal but by publication is not sufficient to vitiate it. Where, as here, the statute prescribes the court in which and the time at which the various steps in the collection proceedings shall be taken a notice by publication to all parties interested to appear and defend is suitable and one that sufficiently answers the demand of due process of law.’ (Citing cases.)
“In Leigh v. Green, 193 U. S. 79, 48 L. Ed. 623, 24 S. Ct. 390, the Supreme Court of the United States, in effect, held: Due process of law is not denied the holder of a lien on real property by the lack of any provision for personal service on him of notice of the pendency of proceedings in rem to enforce the lien acquired by a purchaser of the property at a tax sale, which are authorized by the Nebraska statutes, where notice is given by publication to all persons interested in the property to appear and set up their claims. (L. Ed. headnote No. 2.)
“In Ballard v. Hunter, 204 U. S. 241, 51 L. Ed. 461, 27 S. Ct. 261, it was, in effect, held: Due process of law does not require that the nonresident owners of lands within a levee district should have personal notice of the pendency of a suit to collect the levee taxes assessed upon their lands. (L. Ed. headnote No. 5.)
“We hold neither the due process clause of the federal Constitution, nor section 2 of our Bill of Rights was violated when service by publication was obtained upon Phillips, and the notice given in the tax foreclosure action under 79-2801 and G. S. 1949, 60-2525, et seq., was such as to be reasonably calculated to apprise Phillips of the pendency of the action and afford it an opportunity to defend.” (pp. 489, 490.)
Based on what has been heretofore stated and held we conclude that neither the due process clause of the Federal Constitution nor Section 2 of the Kansas Bill of Rights was violated by the provisions of G. S. 1949, 79-2804b, limiting the time for challenging a tax foreclosure judgment to twelve months after the date the sale of the real estate was confirmed, even though the parties challenging the proceedings were not named in the petition or publication notice.
It follows the trial court did not err in rendering the judgment appealed from in Case No. 42,664 or in its order overruling the motion for a new trial in Case No. 42,783. Therefore the judgment and the order overruling the motion for a new trial must be affirmed.
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The opinion of the court was delivered by
Jackson, J.:
This appeal arises from an action growing out of an automobile collision which occurred on North Kansas avenue in the city of Topeka. The case was tried to a jury which returned a verdict for the plaintiff Holt and answered certain special questions. Upon the motion of the defendant Rills, the district court ordered a judgment in favor of the defendant notwithstanding the general verdict upon the answers to the special questions. Plaintiff appeals urging that the trial court was in error in making its above order.
The general facts leading to the automobile collision can be shortly stated. On August 22, 1959, the plaintiff driving a Henry J car turned off highway No. 24 on to North Kansas avenue driving south. At about the same time, near three in the afternoon on a clear day, defendant was driving north on the same street. From the evidence introduced, these two cars were the only vehicles using the street in that vicinity at the time. Plaintiff testified that he noticed defendant’s Chevrolet car approaching on perhaps three occasions as he drove down the street. When plaintiff had arrived opposite Cramer’s grocery, he made a left turn in the middle of the block intending to drive into the parking lot of the grocery. This left turn, of course, caused him to cross the north bound lane of traffic and defendant’s car struck plaintiff’s car in the rear quarter of the right side behind the right door.
The jury’s general verdict in favor of plaintiff was for the sum of $2,500. They also answered the following eight special questions as herein set out:
“1. Do you find from the evidence the defendant was guilty of negligence? A. Yes.
“2. If you answer the foregoing question in the affirmative then state of what such negligence consisted. A. Excessive speed.
“3. Do you find from the evidence the plaintiff was guilty of negligence? A. Yes.
“4. If your answer to the foregoing question is in the affirmative then state of what such negligence consisted. A. Inattentive driving. Failure to watch and judge the speed of on-coming car.
“5. Did the plaintiff, before starting to make a left turn into Cramer’s Grocery Store give a signal of his intention to make a left turn? A. Evidence not conclusive.
“6. If you answer question five in the affirmative, then state the distance plaintiff continuously gave such signal before starting to make the left turn into the Cramer Grocery Store. A.
“7. If you answer question five in the affirmative, then state what method the plaintiff used in giving the signal of his intention to turn left. A.
“8. Did plaintiff see the car of defendant approaching from the South before plaintiff began to make a turn into Cramer Grocery Store? A. Yes.”
Following the dismissal of the jury, plaintiff moved for a new trial and also moved to set aside the answers to questions 3 and 4. Defendant filed a motion for judgment notwithstanding the verdict. After full consideration of the above motions, the trial court overruled the plaintiff’s motions and granted defendant’s motion entering judgment for defendant.
Turning now to the answers to the special questions to examine the trial court’s ruling thereon, we observe first the answer to question 5, in which the jury found the evidence inconclusive as to whether plaintiff signaled before making, a left turn. In view of the provisions of G. S. 1949, 8-547, it was the duty of the plaintiff to show that he had given a proper signal, and the jury’s failure to be convinced by the evidence, which was in fact inconclusive, had the effect of a finding that no signal had been given, see cases cited in Hatcher’s Digest, Trial §§ 310 and 311; West Kansas Digest, Trial §365(1). Thus, we have a finding that plaintiff was guilty of at least one act of contributory negligence in making the left turn in the middle of the block.
Plaintiff states in attempting to avoid the jury’s answers to questions 3 and 4, supra, that: “The decisions in Kansas have uniformly held that negligence to bar a plaintiff’s recovery must contribute to and be a proximate causé Of the injury complained of (citing Hutchens v. McClure, 176 Kan. 43, 269 P. 2d 473).” There can be no doubt concerning the rule stated and a corollary of that rule is that any negligence of the defendant which is sufficient to make him responsible for an accident must have been a proximate cause of such accident. The court’s instructions are not shown in the record before us, and no complaint is made concerning them. Therefore, we must assume that the jury was properly instructed upon the issue of proximate cause.
The real burden of plaintiff’s argument is that none of the questions asked by the court refers to proximate cause, and the plaintiff would have this court now hold that all special questions must specifically limit the findings of negligence by stating the rule as to proximate cause in each question. Plaintiff attempts to find some encouragement from the case of Taylor v. Johnson, 186 Kan. 561, 352 P. 2d 436. Plaintiff admits that the Taylor case does not so hold. It will be seen that in that case we were discussing only a special question submitted to the jury in which the jury was asked about whether plaintiff had been guilty of any negligence “which caused or contributed to the collision.” There we simply said, in making a quick answer to an argument about causation, that the quoted words amounted to a definition of proximate cause. We would also direct attention to a sentence of the opinion in the Taylor case which the plaintiff may have overlooked. Near the close of the argument on causation, we said: “Obviously, the jury understood the judge to be referring to the action of the plaintiff at the scene of the accident.” (p. 565.)
It would indeed be a new rule to hold now that every special question on negligence must specifically include a statement as to such negligence being the proximate cause of the injury. The jury was instructed upon causation and the court is asking about the occurrences at the scene which caused the injury. No objection to the form of the questions is shown to have been made.in the court below. The following cases may be cited as showing special questions which did not raise the matter of causation under such circumstances and which were treated as entirely sufficient: Eastman v. Railway Co., 102 Kan. 400, 171 Pac. 1; Hausam v. Poehler, 120 Kan. 119, 242 Pac. 449; Mitchell v. Foran, 143 Kan. 191, 53 P. 2d 490; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P. 2d 270; Jelf v. Cottonwood Falls Gas Co., 162 Kan. 713, 178 P. 2d 992; Morrison v. Hawkeye Casualty Co., 168 Kan. 303, 212 P. 2d 633; Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605; Cosby v. Doskocil, 180 Kan. 367, 303 P. 2d 1107; Critchfield v. Ernzen, 181 Kan. 284, 310 P. 2d 930.
The above collection of cases is not intended to be complete and may be increased with ease, we believe. It would be strange for this court to hold contrary now to the above authorities and in effect say the special questions discussed in those cases were insufficient.
We all agree that under the rules of procedure in this jurisdiction nothing is to be presumed in favor of the special findings, and that the general verdict cannot be set aside unless the special findings, being consistent with each other, are contrary to the general verdict. (Unruh v. Kansas Turnpike Authority, 181 Kan. 521, 313 P. 2d 286, and cases cited; see also G. S. 1949, 60-2918.)
Suppose we look at the answer given by the jury to question No. 4 remembering that, as in most of the above cases, the court is asking about acts done “at the scene of the collision.” Can anyone really believe that the answer did not state acts of negligence which, if true, were not a proximate cause of the accident?
The jury answered that the plaintiff was guilty of: “Inattentive driving. Failure to watch and judge the speed of on-coming car.” That is, the jury is saying that the plaintiff merely saw the oncoming car, but failed to look carefully enough to see that it was approaching at a speed of sixty miles per hour, and that he made a left turn — without signaling — into the wrong lane of traffic, closely in front of the speeding car.
We might also remember that a sergeant of the Topeka police department testified that defendant laid down 115 feet of skid marks before he hit plaintiff’s car and 54 feet after the collision.
We might also note that plaintiff’s own testimony — plaintiff being a truthful man — would seem to support the jury’s answer to question No. 4. The only fortunate thing about the accident appears to be that neither plaintiff nor his small son who was riding with him seems to have been seriously injured.
Plaintiff makes certain other arguments about the answers to the jury’s questions and we have carefully considered them. For the most part, the very cases cited by plaintiff we think show the un availability of the points stated. We see no reason to discuss the other points.
The answers to the special questions are consistent with each other but contrary to the general verdict of the jury, therefore the trial court did not err in granting judgment for the defendant notwithstanding the verdict (G. S. 1949, 60-2918). The judgment must be affirmed, and it is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
Appellee as plaintiff brought this action in the court below seeking die sum of $3,300 actual damages and the further sum of $6,600 as punitive damages from the present appellant Hoisting and Portable Engineers Local Union 101, AFL-CIO, an unincorporated labor organization, and another defendant Parkhill Truck Company, a corporation. Both defendants filed demurrers to tie plaintiff’s petition which were overruled by the trial court. Whereupon both defendants filed separate appeals. Later, the trucking company dismissed its appeal, and the present appellant the Union remains the sole appellant. We are advised the truck company has received a covenant not to sue and has been dismissed from the case.
The only question in this appeal is on the remaining defendant’s demurrer, and that question depends on whether the trial court had jurisdiction over the action for damages. This depends upon the question of whether the facts alleged in the petition constituted an unfair labor practice under the National Labor Relations Act as amended, 61 Stat. 136, 29 U. S. C. A. § 141, et seq., and whether under the act exclusive jurisdiction was granted to the National Labor Relations Board to deal with such practices.
Turning now to the petition, plaintiff first alleges that he is a duly qualified, trained and experienced operator of caterpillar tractors and other heavy construction equipment, and throughout the petition plaintiff alleges that his work was eminently satisfactory to his employers. The petition then adequately describes the two defendants named in the petition.
Beginning with paragraph No. 4 and continuing through the pleading to the prayer the petition reads as follows:
“4. On June 15, 1960, and subsequently thereto, defendant Parkhill Truck Company was engaged in business within the State of Kansas, as a subcontractor, in hauling to and distributing pipe from its various pipe yards and distribution points, including Herington, Dickinson County, Kansas, along the right-of-way for the construction of a new interstate pipeline, said right-of-way therefor extending from a point near Seagraves, Texas, across the State of Kansas, to a point near Monticello, Wisconsin, with a separate loop to a point near Farmington, Minnesota, a total distance of approximately 2,300 miles.
“5. On the date aforesaid, and until his wrongful discharge hereinafter mentioned, plaintiff was employed as a caterpillar tractor operator by defendant Parkhill Truck Company near Herington, Kansas, in Dickinson County, Kansas, at a wage rate of $2.22 per hour, with time and half for over 40 hours per week, upon the understanding said wage rate would be increased to $3.15 per hour as soon as the operation reached the Morris County, Kansas, line. At said time plaintiff’s said employer was performing said subcontract by working out of Herington along said right-of-way from a generally southwest to northeast direction.
“6. Plaintiff is not and was not a member of defendant labor organization while working at his employment aforesaid, but duly notified both his said employer and said defendant labor organization that he was ready and willing to join said defendant labor organization. Plaintiff gave both defendants notice of his willingness to join said union at the time of and during Iris employment aforesaid.
“7. At all times while plaintiff was employed as aforesaid, he performed each and all of his duties and services as such employee in a careful, proper and entirely workmanlike manner.
“8. On or about June 16, defendants, and each of them, acting concurrently and jointly, knowing the quality and workmanship of plaintiff’s services to his said employer in his said employment were entirely satisfactory to his said employer, arid although defendants, and each of them, knew of plaintiff’s willingness to join said Union, and although defendant, and each of them, knew of plaintiffs’ rights under Article 15, Section 12, of the Con stitution of the State of Kansas, defendants did willfully, intentionally and oppressively refuse to permit plaintiff to join said union, and did willfully, intentionally and oppressively cause plaintiff to be discharged from his said employment because plaintiff was not a member of said union, and did willfully, intentionally and in complete disregard of plaintiff’s rights cause plaintiff’s said job and employment to be given to one Virgil Sheete, a union member.
“9. As a direct and proximate result of the willful, intentional and oppressive tortious acts of defendants, and each of them, aforesaid, plaintiff was deprived of his right to retain his said employment because of his nonmembership in said defendant labor organization. Said cause of action arose in Dickinson County, Kansas.
“10. As a direct and proximate result of defendants’ willful, intentional and oppressive tortious conduct, aforesaid, plaintiff has lost wages, sustained physical and mental suffering and humiliation, and incurred expense and inconvenience in trying to locate other employment to his actual damages in the amount of $3,300.00, and is further entitled to be awarded punitive damages in the sum of $6,600.00.”
The prayer requests damages in the amounts set out above. It requires no citation of authority to state that the demurrer filed by the Union admits the truth of all facts well pleaded.
There can be no question that it has long been the law of Kansas that one who willfully and intentionally intermeddles in the contract rights of another with the result of the loss of contractual rights possessed by one party may be sued in tort for the resulting damages. (Vaught v. Pettyjohn & Co., 104 Kan. 174, 178 Pac. 623; Nulty v. Lumber and Grain Co., 116 Kan. 446, 227 Pac. 254; Hilton v. Sheridan Coal Co., 132 Kan. 525, 297 Pac. 413; Russell v. Bovard, 153 Kan. 729, p. 735, 113 P. 2d 1064; and see Restatement, Torts §766.)
It will be noted in paragraph No. 8 of the petition quoted above, that plaintiff seems to base his right upon the provisions of Article 15, Section 12 of the Kansas state constitution. This section commonly known as the “right to work amendment” was adopted by the people at the general election of 1958. It would seem to us that plaintiff may still place his right to sue upon the common law of the state, and that section of the constitution merely provides that the defendant Union has no right to intermeddle in plaintiff’s contractual right to work. That is, the union is forbidden and has no right to urge plaintiff’s dismissal from his job because he is not a member of the union.
In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P. 2d 456, cert. denied _ U. S. _, 7 L. Ed. 2d 32, 82 S. Ct. 51, this court held that the above constitutional amendment was self-executory and needed no further act of the legislature before becoming effective. Thus the state constitution fully protects plaintiff’s right to bring his common law action for damages.
It may be noticed in passing that “right to work laws” commonly allow or provide that the party injured may resort to an action for damages under the common law. The Virginia statute would seem to provide specifically that one so injured might bring an action for damages, see Finney v. Hawkins, 189 Va. 878, 54 S. E. 2d 872.
In Willard v. Huffman, 247 N. C. 523, 101 S. E. 2d 373, a union employee sued his employer for damages alleging discrimination against union men. In Dukes v. Local Union No. 437, et al., 191 Tenn. 495, 235 S. W. 2d 7, 26 A. L. R. 2d 1223, the Tennessee court had a question of union interference with plaintiff’s right to work although no specific statute seems to have been involved. The annotation following the case in A. L. R. treats generally of the common law right to relief for tortious interference with contractual rights.
The sole argument of the defendant union in this case is that the National Labor Relations Act has pre-empted from the courts of Kansas all jurisdiction in a case such as this and placed all relief before the National Labor Relations Board.
It will be readily apparent that there was no labor dispute between the employer and the union in the case at bar. Plaintiff sued both the employer and the union in this case, and may well have obtained a settlement from the employer.
Defendant Union asserts that the alleged facts in the petition constitute a clear unfair labor practice upon the part of the union under section 8 (b) (2) of the National Labor Relations Act (29 U. S. C. A. § 158 [b] [2]), and especially relies upon the case of San Diego Unions v. Garmon, 359 U. S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773.
We have studied that case carefully and are of the opinion that its decision does not control the instant case. Wé note that the “second Garmon case” appears to be the first instance in which the Supreme Court of the United States set aside a judgment for damages when the National Labor Relations Board would have had jurisdiction over the case only because of an unfair labor practice. It may be noted that in the “first Garmon case,” San Diego Unions v. Garmon, 353 U. S. 26, 1 L. Ed. 2d 618, 77 S. Ct. 607, the court had observed that the California court seemed to be following the federal law, but had returned the case to the state court for a further expression as to the basis for the state court’s judgment for damages. Attention is also directed to the special concurring opinion of Mr. Justice Harlan in which three other members of the court joined.
In the case at bar there can be no question that the action is maintained under the common law of Kansas aided and fortified by the recent “right to work” constitutional amendment. Actually, there is little that the National Labor Board could give to this plaintiff. The job was one of temporary character and has long since been completed; the board could hardly restore plaintiff to his job. It might restore certain wages, but that is only a small part of plaintiff’s damages alleged in the petition supra. He is entitled under state law to attempt to prove these damages.
Defendant would distinguish all of the other cases in which the courts have allowed an action for damages, although the case might have been brought before the National Labor Relations Board, upon the ground that they involved a breach of the peace. Attention is directed to United Workers v. Laburnum Corp., 347 U. S. 656, 98 L. Ed. 1025, S. Ct. 833; Automobile Workers v. Russell, 356 U. S. 634, 2 L. Ed. 2d 1030, 78 S. Ct. 932; Machinists v. Gonzales, 356 U. S. 617, 2 L. Ed. 2d 1018, 78 S. Ct. 923; Kamper v. Fairbanks Local 1234, etc., 258 F. 2d 791; Benz v. Compania Naviera, Hidalgo, S. A., 233 F. 2d 62; and Selles v. Local 174, etc., 50 Wn. 2d 660, 314 P. 2d 456, cert. denied 356 U. S. 975, 78 S. Ct. 1134, 2 L. Ed. 2d 1149, rehearing denied, 358 U. S. 860, 79 S. Ct. 14, 3 L. Ed. 2d 95.
The defendant argues that in all of the above cases, the state court was allowed to retain jurisdiction because a breach of the peace was involved. While in some cases that may have been true, we fail to find that it was true in all of the cases. In Machinists v. Gonzales, supra, the syllabus in the United States report reads as follows:
“Claiming to have been expelled from membership in an international union and its local union in violation of his rights under the constitutions and by-laws of the unions, a former union member sued in a California State Court for restoration of his membership and for damages for his illegal expulsion. The Court entered judgment ordering his reinstatement and awarding him damages for lost wages and physical and mental suffering. Held: The National Labor Relations Act as amended, does not exclude this exercise of state power, and the judgment is affirmed. Pp. 618-623.
“(a) The protection of union members in their contractual rights as members has not been undertaken by federal law, and state power to order reinstatement in a union is not precluded by the fact that the union’s conduct may also involve an unfair labor practice and there is a remote possibility of conflict with enforcement of national policy by the National Labor Relations Board. Pp. 618-620.
“(b) Likewise, a state court can award damages for breach of the contract by wrongful ouster, since, even if the Board could award back pay, it could not compensate for other injuries suffered by an ousted union member, and the danger of conflict with federal policy is no greater than from an order of reinstatement. Pp. 620-623.
“142 Cal. App. 2d 207, 298 P. 2d 92, affirmed.”
In the Selles case, supra, decided by the supreme court of Washington sitting enbanc, part of the headnotes in the Washington report read as follows:
“[2] Where a union, through its officers, controlled employment in a member’s field of work and without their approval no work could be obtained, their refusal to dispatch him for work in retaliation for the part he played in organizing a meeting to discuss grievances constitutes “discrimination in regard to hire,” which is an unfair labor practice under §8 (b) (2) of the labor management relations act.
“[3] A controversy between a union member and his union is within the purview of the labor management relations act, where it appears that the member took part in organizing a meeting to discuss grievances respecting the conduct of union affairs, and in retaliation the union officers refused to dispatch him for work, resulting in his being without work for a year except for two short periods.
“[4] Although the Federal government, through the labor management relations act, has pre-empted the field as to many phases of labor relations, it was not the intention of Congress to deprive a workman of his right to sue in his own state court for damages resulting from a common-law tort and to relegate him for sole relief to the national labor relations board.”
The facts of the above two cases are quite similar to the case at bar. It must be noted that plaintiff was agreeable to the proposition of joining the union and offered to do so; that he was wrongfully excluded and further that he was intentionally discriminated against by both of the named defendants, and that he brings the present action at common law in tort buttressed by the “right to work amendment” of the state constitution for damages suffered because of the intentional discrimination on the part of the two defendants.
Section 14 (b) of the National Labor Relations Act (29 U. S. C. A. § 164 [b]) reads:
“Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”
The Kansas courts should have jurisdiction over the present case at bar as a means of enforcing the state constitution if for no other reason. (Plumbers Union v. Graham, 345 U. S. 192, 97 L. Ed. 946, 73 S. Ct. 585.) We are cognizant of the fact that the National Labor Relations Act was not involved in the Graham case, but the facts indicate the importance placed upon a state’s right to control its own policy in this field.
We believe the trial court was correct in overruling the demurrer based upon its jurisdiction to entertain this action. Therefore, that order must be affirmed. It is hereby so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action for personal injuries sustained by the plaintiff in an automobile accident. The defendants, the Santa Fe Railway Company and its truck driver, Willard E. Gentry, have duly perfected an appeal from a verdict and judgment for the plaintiff in the sum of $15,000.
The questions presented by the appellants are (1) whether the trial court erred in its failure to declare a mistrial after the plaintiff (appellee) in his own testimony injected the subject of appellants’ insurance, and in failing to admonish the jury by instruction or otherwise to disregard such testimony, and (2) whether the trial court erred in permitting the appellee’s counsel, in closing argument, to display a chart itemizing damages on a mathematical formula basis.
The appellee says that basically the question involved is whether prejudicial error was committed in the trial court’s ruling on the foregoing points so as to warrant a new trial for the appellants.
On the 27th day of November, 1959, at about 9:45 o’clock in the morning, Vernon D. Caylor (plaintiff-appellee) was driving his automobile east on Seventh Street in the City of Topeka, Kansas, between Jackson and Kansas Avenue. While so doing he stopped in his lane of traffic to permit another vehicle to back from the curb, and while stopped he was struck violently from behind by a Santa Fe truck driven by Gentry.
In his action Caylor sought damages for injuries to his back, neck and head in the sum of $35,000. Upon appropriate pleadings the case went to trial. The only evidence presented by the appellants was that of a medical doctor. Gentry, the Santa Fe driver, did not appear at the trial nor did he testify, either in person or by deposition.
The appellants concede the evidence presented at the trial was sufficient to support the findings of the jury which resolved the issues of negligence against them.
The evidence discloses that Caylor was hospitalized and in traction for about eight days; that he was off work for twenty-five days, although the company records show he lost only nineteen working days because of hospital or medical reasons. At the time of the trial, almost a year after the accident, Mr. Caylor testified he still had pain and headaches. For a period of about one year before the accident Mr. Caylor worked 112 hours of overtime, but for an approximate equal period after the accident he worked only 3.2 hours overtime. It was shown that Mr. Caylor’s work at the Goodyear Rubber Plant was heavy work, and according to his testimony he was unable to do overtime work after the accident; that he had difficulty with his neck and shoulders and in his ability to get around after the accident; that this condition still existed a week before the trial; and that he could not perform some of the jobs he had done before the accident. At times he would request assistance from fellow employees when the lifting was particularly heavy.
Dr. Roberts, Caylor’s family physician, testified that Caylor sustained acute cervical strain and headaches, back pain, pain in both arms and numbness; that he suffered severe pain and was in tears on one occasion; that he never had any trouble with his neck and spine before the accident and was in good health. Dr. Roberts testified that Mr. Caylor had some permanent disability.
Dr. Pusitz testified that Mr. Caylor’s difficulty involved partial tear of ligament structures and nerve injury, all related to the accident. That on subsequent examinations Caylor still had pain, particularly when lifting, twisting or bending. He was of the opinion that Caylor had a permanent partial body disability. In describing how this disability would affect this man and his ability to do manual labor, Dr. Pusitz testified:
“The disability in manual labor will be that if he overdoes, he will have disturbance and that the machine will wear out more quickly than in a person who doesn’t have this disability.”
He further testified that in his opinion Mr. Caylor will continue to have some pain and discomfort in the future.
The appellants contend the appellee voluntarily injected the word “insurance” into the case, which, the appellee argues, seems to be an assertion that the testimony concerning insurance was intentionally given. The only evidence in the record concerning insurance appears in the direct examination of Caylor as follows:
“Q. Now after you made your report to the police or with the police what did you do then?
“A. Well, may I go back when I called the police?
“Q. Yes.
“A. Well, I called the police, the first thing they asked me was there anybody hurt seriously. I told them as far as I knew I was the only one hurt and I thought I’d be all right. They wanted to know if I wanted an ambulance and I told them no, I didn’t think it was necessary. So after they made their investigation there and we exchanged our insurance companies and, you know, names—
“Mr. Treadway: (Interrupting) To which the defendant certainly objects. May counsel approach the bench, please?
“The Court: Yes.
“Mr. Treadway: The defendant Santa Fe Railway Company at this time moves for a mistrial for the reason that the witness has testified that there was an exchange of insurance papers.
“Mr. Bausch: That was not brought out as any overt act on our part.
. “Mr. Treadway: I think it’s prejudicial because we do not carry insurance. The inference was left with the jury that we carry insurance, but we are self-insured.
“The Court: Do you want to stipulate to that fact?
“Mr. Treadway: No. He’s testified they were exchanged.
“The Court: Possibly the plaintiff would stipulate that you do not carry insurance.
“Mr. Bausch: I don’t know whether they do or not.
“The Court: I will overrule the objection.”
Here the appellants contend the ruling of the district court was manifestly one of prejudicial error as evidenced by the excessive amount of the verdict. They point out that the testimony concerning the appellants’ insurance was permitted to remain of record as a part of the appellee’s evidence in chief for the unqualified consideration of the jury; that their prompt objection and the overruling of their motion for a mistrial had a prejudicial effect upon the jury particularly against the Santa Fe Raffway Company as a self-insurer. It is argued this ruling denied the appellants a fair and impartial trial on the issues of liability and of damages.
While the appellants here did not request the trial court to admonish the jury to disregard the appellee’s testimony concerning insurance, this was unnecessary. The trial court should have promptly advised the jury not to consider the matters when it overruled the motion for a mistrial, and it should have further instructed the jury to that effect. (Scott v. Vaughn, 140 Kan. 529, 37 P. 2d 1012.) In Pool v. Day, 141 Kan. 195, 40 P. 2d 396, the plaintiff voluntarily injected testimony of insurance into the case and it was emphasized that the trial court had a duty to see that prejudicial matter did not reach the jury, saying:
“. . . whether or not objections and motions to strike out have been promptly made, it has been held to be the duty of the trial court to carefully exclude all highly prejudicial matter from the jury, and admonish the jury to wholly disregard the same in the hope thereby of avoiding a mistrial or the necessity of ,a new trial on account of the possible prejudice and passion created thereby in the minds of the jurors.” (p. 200.)
In Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97, the plaintiff’s wife referred to the defendant’s liability insurance in the amount of $50,000, and upon motion of counsel for the defendant the trial court refused to strike such testimony. Plaintiff’s counsel said they just wanted “to show the whole conversation.” The deliberate introduction of evidence to show the defendant had stated he carried a large amount of liability insurance was held to be prejudicial error on appeal. In the course of the opinion it was said:
“. . . It would appear that in a damage suit for personal injury the inadmissibility of such testimony and of the trial court’s duty to exclude it is no longer a subject of fair debate in this jurisdiction. And not only so, but it is only when such testimony gets into the record inadvertently that its admission can be cured by a peremptory order of the court to strike it out and for the jury to disregard it. (Holloway v. Telfer, 136 Kan. 80, 12 P. 2d 826.) Where it has been deliberately brought into the case the presumption is that it was done to influence the jury improperly, and a mistrial should be declared. (Van Pelt v. Richards Paint & Paper Co., 132 Kan. 581, 296 Pac. 737; Crossler v. Safeway Stores, Inc., 51 Ida. 413, 80 A. L. R. 463; 20 R. C. L. 178.) . . .” (p. 181.)
In the foregoing case the further admonition was given that counsel for plaintiff should have made it clear to his witness before she took the witness chair that the question of defendant’s negligence was in no way related to the fact, if true, that he had insurance covering his liability for damages, and he should have cautioned her that she would inevitably ruin her husband’s seemingly good case if the matter of such a fabulous amount of liability insurance was lugged into the record.
This court has repeatedly stressed the impropriety of injecting the question of insurance into damage actions in which insurance companies are not parties, when it is obvious that the purpose is to produce prejudice in the minds of the jurors. Where the offending party secures a verdict and the opposing party makes timely objection, and otherwise has adequately protected the right of review, the offense is regarded as so inherently prejudicial as to require reversal unless unusual circumstances are shown which justify affirmance. (McGuire v. McGuire, 152 Kan. 237, 240, 103 P. 2d 884.)
In Cannon v. Brown, 142 Kan. 700, 51 P. 2d 1007, prompt action of the trial court in advising the jury that it should not consider an inadvertent reference to the defendants’ liability insurance prevented the defendants from being prejudiced, where the verdicts were not excessive and there was very little dispute as to the facts, although the court admonished that it frowns on the practice of using one means or another to give the jury a hint that the defendant is covered by liability insurance. (See, also, Shively v. Burr, 157 Kan. 336, 139 P. 2d 401.)
Cases where the defendant himself brings the fact of liability insurance into the record are quite another matter and distinguishable. (Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721; and Dirks v. Gates, 182 Kan. 581, 322 P. 2d 750.)
In the case at bar the mention of insurance by the appellee was in response to a question completely unassociated with the subject of insurance. The refusal of the trial court to sustain the appellants’ motion for a mistrial and the denial of the motion for a new trial amount to a finding that the testimony as to insurance got into the record inadvertently. (Cannon v. Brown, supra.)
It may be said the failure of the trial court to promptly advise the jury not to consider the testimony concerning insurance, and to further instruct the jury to that effect, was clearly erroneous. Nevertheless, counsel for the appellants admitted in argument before this court they did not desire any further reference made by the trial court to the jury on the matter of insurance, since this would only serve to emphasize the subject of insurance in the minds of the jurors. For this reason counsel requested no further action by the trial court. Under these circumstances, taking into consideration the evidence presented by the record and the amount of the verdict, the court is of the opinion that such error was not prejudicial to the appellants.
A case somewhat analogous is Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120. There reference to the defendant’s insurance company was inadvertently made by the plaintiff, and upon the defendant’s renewal of his motion for a mistrial counsel for plaintiff consented that the answer to the question be stricken and the jury admonished to disregard it, but counsel for the defendant refused to agree to such procedure on the ground the damage had already been done, and that any further reference to the subject of insurance would merely magnify and emphasize in the minds of the jurors the probability and fact that the defendants were covered by insurance. As a result, no admonition or instruction concerning the matter was given to the jury. In the opinion the court said:
“. . . as we read this record, it is not made to appear that any prejudice resulted from what manifestly appears to have been an inadvertent reference on the part of plaintiff while on the witness stand. Indeed, the trial court in denying the motion for a mistrial and to discharge the jury commented that he was well satisfied there had been no intentional misconduct by counsel and that the mention of insurance was purely inadvertent. We feel compelled to agree, . . .” (p. 389.)
In the opening argument after all the evidence had been presented counsel for the appellee unveiled a large chart exhibiting a mathematical formula for evaluating certain elements of damages as follows:
“Vernon Caylor
Age 29
Life Expectancy 38.6 yrs.
Medical Expense $ 717.00
Loss of Wages 1 144.00
Pain & Suffering 3 500.00
Future Pain & Suffering 5 000.00 (Approx. $130.00 per year)
Permanent Disability 14 040.00 ($30.00 per mo. for 39 yrs.)
Total Damage $24 401.00”
Over objection by the appellants the trial court permitted the foregoing chart to be displayed on an easel to the jury. Comment was made on the chart in the appellee’s closing argument. In the course of deliberations the jury requested to see the chart used and referred to by counsel for the appellee in closing argument, but this request was refused by the trial court.
At the time of unveiling the chart, appellee’s counsel told the jury:
“. . . The Court has instructed you that you can consider in assessment of damages pain and suffering, both past and present, and future, permanent disability, and loss of wages, and we have submitted to you here what we feel is a fair figure for this consideration. This is broken down in detail and Mr. Bausch will comment in more detail on those figures in just a moment.”
In closing argument appellee’s counsel said:
“Pain and suffering is worth something. You can’t see it. That is up to you folks. I suggest $3,500 up to date. He’s going to have it in the future. I suggest $5,000 for that. That is $130 per year for the rest of his life.
“Now as to his permanent disability, I suggest to you folks, and this is my suggestion only, with a life expectancy of 38 years, $30 a month, total fourteen thousand some-odd dollars. It comes out to this figure of $24,000. I suggest these figures at $30 per month because the government pays their people on less disability than that. You know of your own knowledge the workmen’s compensation amounts that they draw. . . . There is nobody else to blame but them and he cannot come back, so we submit that when you consider this, consider it seriously and allow him what you in your heart would want to have for your husband or yourself if you were in Mr. Gaylor’s seat.”
No question is raised on this appeal as to the items of “medical expense” and “loss of wages” shown on the chart. These are supported by evidence in the record and there is no discrepancy in these amounts which total $1,861. It is conceded these items of special damages could properly be used in argument to the jury.
The appellants contend, however, the fact that a verdict of $15,000 was returned for the appellee, clearly shows that the jury was seriously and prejudicially impressed by the chart and formula in allowing such substantial payment for pain and suffering and permanent disability. The appellants argue that there was no evidence in the record of any monetary value for pain and suffering, past, present or future, and that the value of such elements of damages is incapable of proof by any competent evidence. They further argue there was no evidence, in monetary value, of any permanent disability, and there was no evidence of the extent, kind or degree of any permanent disability.
The appellants argue: “That the jury considered this chart and mathematical formula as material evidence in support of appellee’s claim for damages is shown by the fact that during their deliberations, the jury requested that it be permitted to have and to see in their jury room, this chart used and referred to by appellee in argument. While this request was not granted, the District Court did not protect the appellants from the prejudicial effect obvious in the minds of the jurors by calling them back into the court room and informing or instructing them specifically that this chart and mathematical formula was not in evidence and was not to be considered as evidence.”
In recent years there has been an increasing resort to the blackboard and mathematical formulas by claimants’ counsel for the professed purpose of securing “a more adequate award” in personal injury cases. Kansas has not passed upon the “formula technique” used in arguing damages to a jury by counsel in personal injury cases. Other jurisdictions, particularly since 1958, have passed upon the question, some emphatically condemn the “formula technique,” (Botta v. Brunner, [1958], 26 N. J. 82, 138 A. 2d 713, 60 A. L. R. 2d 1331; Henne v. Balick, [1958], 51 Del. 369, 146 A. 2d 394; Appliance Company v. Harrington, [1959], 201 Va. 109, 109 S. E. 2d 126; Affett v. Milwaukee & S. T. Corp., [1960], 11 Wis. 2d 604, 106 N. W. 2d 274; and King v. Railway Express Agency, Inc., [1961, N. D.], 107 N. W. 2d 509), and some, although holding it to be error, require that the prejudicial effect be shown, (Faught v. Washam, [1959, Mo.], 329 S. W. 2d 588; Goldstein v. Fendelman, [1960, Mo.], 336 S. W. 2d 661; Missouri-Kansas-Texas Railroad Company v. Jones, [1960, Okla.], 354 P. 2d 415; and see, Braddock v. Seaboard Air Line Railroad Company, [1955, Fla.], 80 So. 2d 662, 668), others give it sanction, (Caley v. Manicke, [1961], 29 Ill. App. 2d 323, 173 N. E. 2d 209; Yates v. Wenk, [1961], 363 Mich. 311, 109 N. W. 2d 828; Louisville & Nashville Railroad Co. v. Mattingly, [1960, Ky.], 339 S. W. 2d 155; and Samuel L. Bowers v. Pennsylvania Railroad Company, Appellant, [1960], 281 F. 2d 953), and still others leave it to the discretion of the trial court (Seaboard Air Line Railroad Co. v. Braddock, [1957, Fla.], 96 So. 2d 127; Ratner v. Arrington, [1959, Fla.], 111 So. 2d 82; Olsen v. Preferred Risk Mutual Insurance Company, [1960], 11 Utah 2d 23, 354 P. 2d 575; Jones v. Hogan, [1960], 56 Wn. 2d 23, 351 P. 2d 153; and Imperial Oil, Limited v. Drlik, [1956], 234 F. 2d 4). The recent development of the law on this question is indicated by an annotation in 44 A. L. R. 2d 1205 [1954]. A later annotation appears in 60 A. L. R. 2d 1347 to 1353, inclusive, following citation of Botta v. Brunner, supra, 60 A. L. R. 2d 1331. An accumulation of the cases and legal literature on the subject may be found in Ratner v. Arrington, supra, and Affett v. Milwaukee & S. T. Corp., supra.
The use of the “formula technique” to argue damages in a case before a jury by the display of a chart or blackboard is to be distinguished from the use of visual aids or demonstrative evidence in the trial of a case. The latter, if competent and accepted, are properly before the jury as evidence. (See, Hamilton v. Harrison, 126 Kan. 188, 193, 268 Pac. 119.)
While the precise question concerning the prejudicial effect of using a mathematical formula as a basis for determining damages for pain and suffering was not before the court in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, the subject was discussed in the following language:
. . Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. . . .” (p. 141.)
The reasoning assigned by courts which disapprove the “formula technique” in arguing damages to a jury by making use of a chart or blackboard proceeds on the premise that there is no fixed basis, table, standard or mathematical rule which will serve as an accurate index and guide to the establishment of damage awards for personal injuries. And it is equally plain there is no measure by which the amount of pain and suffering endured by a particular individual can be calculated. The varieties and degrees of pain are almost infinite. Individuals differ greatly in susceptibility to pain and in capacity to withstand it. And the impossibility of recognizing or of isolating fixed levels or plateaus of suffering must be conceded.
As a consequence, the law has declared the standard for measuring damages for personal injuries to be reasonable compensation and has entrusted the administration of this criterion to the impartial conscience and judgment of the jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.
It is then said, use of the mathematical formula in argument to a jury by means of a blackboard demonstration of plaintiff’s counsel permits the plaintiff to put in the record evidence which he would not otherwise have been permitted to introduce. If this were proper it would be equally logical to permit expert witnesses to testify before the jury as to the reasonableness of the figures submitted for suffering consequent upon the injury, a revolutionary innovation which not even the most ardent zealots of the mathematical formula technique have proposed.
Whatever may be the cold logic or academic theory of the matter, it is said, the ungilded reality and purpose is that such argument is calculated and designed to implant in the jurors’ minds definite figures and amounts not theretofore in the record out of all proportion to those which the jury would otherwise have in mind, and to influence the jurors to adopt those figures and amounts with the view of securing a verdict much larger than that warranted by the evidence. Admonitions of the court that the jury should not consider per diem or mathematical formula arguments as evidence fail to erase all prejudicial effect.
It is further said that following such argument by the plaintiff, the defendants are prejudiced by being placed in a position of attempting to rebut an argument having no basis in the evidence, with the result that if they do not answer the plaintiff’s argument in kind they suffer its effect on the jury, but if the defendants do answer in kind they thereby imply approval of the per diem or mathematical formula argument for damage determination.
The use of a mathematical formula is branded by such courts as pure speculation by counsel, which is not supported by the evidence and presents matters which do not appear in the record.
It should be noted, contrary to the Kansas law, some of the courts which condemn the “formula technique” do not permit reference to the ad damnum clause of the complaint either by the court in its instructions to the jury or by counsel in argument. (See, Botta v. Brunner, supra.)
Courts which sanction the mathematical formula argument to a jury in personal injury actions say that to deny the use of such argument would be a curtailment of the right of argument since it precludes the use of a persuasive technique. It is said jurors should necessarily be guided by some reasonable and practical considerations. The determination of damages for pain and suffering should not be relegated to a blind guess, and the jury should not be required to determine the matter in the abstract. Illustrative is the language in Calay v. Manicke, supra, as follows:
“. . . Surely it is artificial restriction if we are to say to plaintiffs: ‘You can argue the gross figure but that is all!’ Such a dictate does not commend itself. Why not discuss the parts that make up the whole? We do not say that an advocate must or even should, but if in his judgment he deems such of greater persuasiveness, we can see no reason not to accord him that right. It is, after all, argument, not evidence. There is an approved cautionary instruction to that effect. lurors certainly know, even absent this instruction, that counsel in the case are not witnesses nor parties. They expect an argument. They are entitled to it. No one is seriously going to argue at this late date that they view lawyers’ arguments as evidence.” (pp. 339, 340.)
Further reasons advanced by courts taking this position are: That the very absence of a yardstick makes the contention, that counsel’s suggestions of amounts mislead the jury, a questionable one; that the evidence fails to provide a foundation for per diem or mathematical formula suggestion is an unconvincing argument because the jury must, by that or some other reasoning process, estimate and allow an amount appropriately tailored to the particular evidence in that case as to the pain and suffering or other such element of damages; that a suggestion by counsel that the evidence as to pain and suffering justifies allowance of a certain amount, in total or per diem figures, does no more than present one method of reasoning which the trier of the facts may employ to aid him in making a reasonable and sane estimate; that such per diem arguments are not evidence, and are used only as illustration and suggestion; that the claimed danger of such suggestion being mistaken for evidence, if present, can be dispelled by the court’s instructions; and that when counsel on one side has made such argument the opposing counsel is equally free to suggest his own amounts as inferred by him from the evidence relating to the condition for which the damages are sought. (See, Ratner v. Arrington, supra, where a summary of the reasons pro and con are enumerated.)
On the record presented by the instant appeal it is unnecessary to determine whether the trial court erred in permitting the display of the large chart from which damages were argued to the jury on the basis of a mathematical formula. This question we leave open. Assuming that it was error, the majority of the members of this court are of the opinion that the appellants were not prejudiced by the use of the chart or the arguments based thereon.
Here the appellee brought an action asking damages in the total sum of $35,000. In the trial of the case it was counsel’s duty to present such evidence to a jury as would logically justify this amount. The life expectancy of the appellee was agreed upon by the parties. Two physicians testified that the appellee was permanently injured. One said he could expect to suffer pain and discomfort the rest of his life.
The court gave the usual instruction to the jury that they should listen to arguments of counsel, who would endeavor to aid them in arriving at a just verdict by reviewing and discussing the evidence and showing die application and effect thereof under the law as given them in the instructions, but regardless of what counsel said it was their sworn duty as triers of the case to be governed in their deliberations and final conclusions by the evidence as it had been produced before them and as they understood and remembered it, and by the law as given them in the instructions.
The court also instructed the jury that they were to “allow the plaintiff such amount as you believe from the evidence will be fair and just compensation to him for the reasonable value of past and future medical and hospital services, the value of his time lost to date, past and future physical pain and mental anguish, and loss of future earning capacity or permanent disability, but in no event can the amount of your verdict exceed the sum of $35,000.00, the amount prayed for by the plaintiff in his petition.” (Emphasis added.)
True, the jury asked to see the chart after they entered the jury room, but this was not permitted. The court had instructed the jury that they were free to take any exhibits with them to the jury room or to request them during deliberations. The act of the trial court in declining to let the jury see the chart after commencing its deliberations emphasized that the chart was not evidence.
The appellee sued for $35,000; the chart itemized damages in the total sum of $24,401; and the verdict wag $15,000, which is less than half the amount sued for and a little over half the amount set out on the chart. The record discloses the jury deliberated approximately six hours. It can reasonably be assumed the jury devoted most of its time, if not all of it, to the question of damages, inasmuch as the liability of the appellants was hardly a controverted issue as viewed from the evidence.
Upon all the facts, conditions and circumstances presented by this record it may be said the verdict reflects careful consideration by the jury, rather than passion and prejudice, and the use of the chart and the argument based thereon cannot be said to have had prejudicial influence upon the jurors.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
On August 14, 1959, the condemnor, Linwood School District No. 1, commenced this proceeding to acquire three acres from a 15.75-acre tract for public school purposes. Appraisers were appointed who fixed the value of the land taken at $10,500 and found no damage to the land remaining. The landowner, Vic Regnier Builders, Inc., appealed to the district court from the award of the appraisers. The case was tried by a jury and resulted in a verdict for the landowner of $21,000 for the land taken and $6,500 damage to the land remaining. September 4, 1959, was stipulated as the date of the taking. The condemnor’s motion for a new trial was overruled, and this appeal followed.
The 15.75-acre tract in question is located at the southeast corner of the intersection of 95th Street and Mission Road, Overland Park, Kansas. 95th Street runs east and west and Mission Road runs north and south. The three acres acquired lie adjacent to the Marsha Bagby Elementary School. At the time of the condemnation and of the trial the entire 15.75-acre tract was zoned for residential purposes, however, Ranch Mart, a large shopping center, is located across 95th Street at the northeast corner of the intersection and there was expert testimony that the tract’s highest and best use was for commercial purposes and that it was probable the property would be rezoned for that use within three to five years.
The condemnor first contends the landowner exceeded the reasonable scope of cross-examination by inquiring of its expert witnesses their knowledge of a sale of a tract of land about which nothing appeared of record in the office of the register of deeds. The tract inquired about involved the sale of a one-third-acre tract across the street from the condemned tract to the General Service Administration of the federal government for the location of the Leawood post office. The sale was made in June of 1960, nine months after the date of the taking. Mr. Rliss, an expert witness for the condemnor, stated that he searched the records of the register of deeds but found nothing, and made no further inquiry. He admitted on cross-examination that he had heard of the sale, stating the superintendent of the school district told him about it.
The condemnor’s first contention relates to its second contention that it was error to cross-examine its expert witnesses where the form of the question concerning other sales of real estate in the vicinity of the land taken included the price and other details. It is contended that counsel for the landowner phrased the questions in an improper manner, always asking each expert witness if he knew about the sale of a specific tract for a certain price per acre between A and R, rather than to first inquire whether he was acquainted with the fact of such a sale leaving out the size of the tract and the selling price. It is argued that since a price and acreage was stated in the question and was before the jury, all the witness could do was answer either yes or no, and that in any event, it was immaterial to the landowner how the witness answered since counsel was trying to pound home, sale by sale, all the favorable data he could. It is further argued that if the witness answered “no,” the information was not in the record as sworn testimony, and that even if it were not proper evidence, the price or value and acreage was still in the minds of the jury and that to permit such cross-examination was an abuse of privilege by the district court and permitted indirectly what could not be done directly; that is, it permitted the establishment of value of the land taken by specific or exceptional sales of property in the neighborhood.
The condemnor’s third contention pertains to a requested instruction which was refused by the district court, and, in turn, relates to its first and second contentions. That instruction would have advised the jury that the cross-examination of expert witnesses as to other sales of real estate was not permitted to establish market value of the tract taken, because market values are not determined from some specific or exceptional sale in the neighborhood, and that reference to such sales and the price thereof was only permitted on cross-examination to test the credibility and knowledge or lack of knowledge of the particular witness with respect thereto.
In condemnation proceedings the owner is to be given by way of compensation the fair market value of the land taken plus the diminution of value of that remaining, based upon a consideration of all the capabilities of the property for its best and most advantageous use as it was actually situated at the time of the taking. The owner is entitled to show the fair market value of his land for every purpose to which it is adapted. The fact that it has been used for one purpose only does not prevent him from showing its availability for other appropriate uses and its value for such uses, but the uses which may be considered must be so reasonably probable as to have an effect on the present market value of the land. (Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 78, 80, 334 P. 2d 315; Mai v. City of Garden City, 177 Kan. 179, 182, 277 P. 2d 636; Cline v. Kansas Gas & Electric Company, 182 Kan. 155, 318 P. 2d 1000.). The testimony of expert witnesses is weighed by the jury under proper instructions by the court the same as the testimony of other witnesses. The means of testing the competency of expert witnesses in condemnation proceedings is by cross-examination. Only by permitting their cross-examination to the fullest extent can a jury be in a position to determine the probative value of their testimony. Hence, it has'long been recognized that expert witnesses in condemnation cases can be cross-examined concerning other transactions and as to sales of other properties for the purpose of testing their credibility, knowledge and competency. (Railway Co. v. Weidenmann, 77 Kan. 300, 94 Pac. 146; Bourgeois v. State Highway Commission, 179 Kan. 30, 292 P. 2d 683; Cline v. Kansas Gas & Electric Company, supra.) Great latitude is necessarily indulged in order that the intelligence of a witness, his power of discernment and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity to determine the value of his testimony. (Bourgeois v. State Highway Commission, supra.) Generally speaking, whether such evidence should be admitted in any particular case is a matter resting within the discretion of the court under the circumstances presented (Railway Co. v. Weidenmann, supra), but the discretion of the court is not absolute. (K.C. & T. Rly. Co. v. Splitlog, 45 Kan. 68, 25 Pac. 202.)
Evidence on an issue of market value of real estate, in order to be competent, must relate to the time as of which the value of the property is to be determined, in this case September 4, 1959. To prove such market value, the evidence need not be confined to the very day of the taking but proof of value within a reasonable time before or after the date of the taking may be received and considered by the jury. (Constant v. Lehman, 52 Kan. 227, 34 Pac. 745.) In condemnation proceedings the value of real estate can seldom be fixed at the very place and on the very date of the taking. Unlike the value of articles of daily use constantly bought and sold in the market, sales of real estate in any given community are usually made only at considerable intervals of time and it is proper to prove value at a time before or after the date of the taking, that it may reasonably throw light upon the value at the time of the taking.
While we do not approve of the form of the questions asked of the condemnor s expert witnesses nor feel that the unrecorded sale was proper to inquire about, we cannot say that such error was so prejudicial as to require a reversal of the judgment. Neither can we say that, under the facts and circumstances presented, it was improper to inquire about sales in the vicinity made subsequent to the date of the taking since the witnesses, if they knew of the sales, were permitted to explain whether the land sold was similar, including conditions, character and location, to the land taken. Also, we think the district court could reasonably have given the requested instruction, and should have done so, in view of the various objections to the manner of the cross-examination of the condemnor’s expert witnesses, but, again, an examination of the record does not reflect that the error was of such character as to warrant a reversal of the judgment.
Complaint is also made that the district court erred in giving instruction No. 8. It is claimed the instruction placed no direct limitation as to when a possible rezoning of the property might take place. We do not believe the instruction had that effect. The jury was advised if it found that the best adaptable use to which the land could have been put at the time of the condemnation was a use other than that for which it was zoned at the time and that there was a reasonable probability on September 4, 1959, of its being later rezoned to permit such use, then, it might consider such fact in determining fair market value of the property insofar as that use tended to affect the immediate value of the property. In view of the landowner s expert testimony we cannot say the instruction was prejudicial or erroneous. Furthermore, the record indicates the condemnor did not object to the giving of the instruction in the form ultimately agreed upon by all parties and as finally submitted to the jury.
Lastly it is contended the verdict was excessive. The parties each presented three expert witnesses, and Regnier testified for the landowner. The testimony of those witnesses ranged from $10,500 for the value of the land taken with no damage to the remainder, to $60,000 for the value of the land taken with damage to the remainder of $10,000 taking into consideration that the most advantageous use for the property taken and that remaining was for commercial development and that it was reasonably probable the property would be rezoned for commercial use within three to five years. The property is a valuable corner location in the rapidly expanding and highly improved area in northeast Johnson County. The verdict was well within the range of the evidence and was amply supported by the testimony. The case was tried by able counsel on each side and the experts were well qualified. There was an abundance of evidence of the reasonable market value of the property, and we cannot say that the verdict was so excessive as to require a reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal from a judgment for a lump sum of a workmen’s compensation award under G. S. 1949, 44-512a. This is the third time the parties have been before the court in this matter (see, Carter v. State Department of Social Welfare, 184 Kan. 825, 339 P. 2d 5; and Carter v. State Department of Social Welfare, 186 Kan. 187, 348 P. 2d 609).
According to the journal entry, the judgment from which the appellant attempted to appeal was dated May 24,1961. A copy of the trial docket is made a part of the counter abstract and shows May 24, 1961, as the date of the judgment. The notice of appeal was not served and filed until July 31, 1961, but attempts to appeal from a judgment supposedly dated June 6,1961.
From the abstracts we get the picture as follows: The judgment for a lump sum amount of $6,436.22 was in fact entered on May 24, 1961. The journal entry was presented to the district judge on or about June 6, 1961, and before signing the journal entry, the judge with his own pen struck out provisions as to the judgment drawing interest at six percent, and initialed the changes.
Appellant argues that the judgment was modified on June 6,1961, although no such date appears on the record. The judgment seems to have been one granted upon the pleadings and upon certain facts brought out at the pre-trial conference.
Actually, any modification made in the judgment by the elimination of the matter of interest would have been to the benefit of the appellant, and a party has no right to complain on appeal of an order in his favor (Bernstein v. Smith, 10 Kan. * 60, * 67).
The above judgment was rendered upon what amounted to an agreed statement of facts and as a matter of law. No motion for new trial or other motion was filed after May 24, 1961, and none was needed or required. Under the provisions of G. S. 1949, 60-3309, an appeal must be taken within two months from the date of the judgment appealed from and the record here does not show that the appeal in this case was taken in time. Therefore, the instant appeal must be dismissed. It is hereby so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an original habeas corpus action. The petitioner is confined in the Kansas State Penitentiary pursuant to sentences imposed by the Linn County district court on the 13th day of April, 1961, in cases numbered 11,724, 11,727 and 11,730, upon the petitioner’s plea of guilty to each of the offenses.
Each of cases numbered 11,724 and 11,730 charged the petitioner with the burglary of a dwelling house in the daytime and of grand larceny committed in connection with the burglary. These informations did not allege the presence of a human being in either house, nor specify the statute under which the burglaries were charged, although the informations were drafted in accordance with the language of G. S. 1949, 21-516, defining burglary in the second degree. Case numbered 11,727 charged the petitioner with grand larceny of personal property of another of the value in excess of $50.
This case is closely related to Hicks v. Hand (No. 42,737), 189 Kan. 256, 368 P. 2d 47. Both of these petitioners attack the sentences imposed by the Linn County district court on the 13th day of April, 1961. Both of the petitioners on that date entered pleas of guilty to informations which were drafted in the same language. The only factual difference between the two situations presented is that Ernest B. Hicks, the petitioner herein, was sentenced as an habitual criminal, while Lloyd M. Hicks was not. These criminal actions arose out of a series of crimes committed by these two petitioners and William L. Starks, who also has a petition for writ of habeas corpus pending in this court.
On the 3rd day of April, 1961, the petitioner was brought before the Linn County district court for arraignment on three informations which had been filed in that court. Being without counsel at that time the petitioner was not then arraigned. The court instead appointed Harry C. Blaker, a member of the Linn County Bar, to represent the petitioner as attorney in these cases. After the county attorney gave notice that the State intended to offer evidence of a prior felony conviction, and to seek a sentence in each of the three cases under G. S. 1949, 21-107a, the court continued these cases until the 13th day of April, 1961.
On the 13th day of April, 1961, the petitioner, being present and represented by Harry C. Blaker, was arraigned and entered a plea of guilty in each of the three cases.
The State then presented evidence of a prior felony conviction, and the sentences pronounced pursuant to 21-107a, supra, were twice the length prescribed by the statutes which the court found to have been violated. The petitioner was sentenced on each of the burglary charges to a term of ten to twenty years, upon a finding that these crimes were burglaries in the second degree in violation of 21-516, supra. In these two cases tire petitioner was also sentenced to terms of not more than ten years for the grand larcenies, as provided by G. S. 1949, 21-524. In case numbered 11,727, the sentence was for a term of not more than ten years, as provided by G. S. 1959 Supp., 21-533, and G. S. 1949, 21-534. All sentences were ordered to run concurrently.
No appeals were taken from the foregoing convictions and sentences, and subsequent to the petitioner’s confinement in the Kansas State Penitentiary he filed this original petition for a writ of habeas corpus.
Except for the sentencing of the petitioner as an habitual criminal, which we shall presently consider, the contentions advanced by the petitioner herein are identical with those advanced by Lloyd M. Hicks in Hicks v. Hand, supra. Without repeating these contentions the reader is referred to the opinion therein, where the court held:
“Assuming, arguendo, that we looked into the petitioners claim of illegality concerning the sentences imposed for convictions of burglary in the second degree and found them to be excessive and therefore erroneous, he would not be entitled to his release from custody because it is apparent from the face of the record that he has not served either the minimum or maximum of the three concurrent sentences for not exceeding five years, which he conceded to be regular and lawful. It has been held that where a petitioner is serving concurrent sentences, one of which is valid and unexpired at the time the petitioner seeks a writ of habeas corpus for his release from the custody, he is not entitled to discharge until the valid sentence has been served, or until he is otherwise discharged according to law. (Roberson v. Hand, 186 Kan. 781, 352 P. 2d 956.) See, also, True v. Edmondson, 179 Kan. 22, 23, 293 P. 2d 264; May v. Hoffman, 179 Kan. 149, 153, 293 P. 2d 265, and Ramsey v. Hand, 183 Kan. 307, 310, 327 P. 2d 1080.” (pp. 257, 258.)
The foregoing controls our decision herein.
The contention that the petitioner was denied the effective assistance of counsel is without merit. After the appointment of Mr. Blaker as petitioners counsel, the district court postponed his arraignment for ten days to enable counsel and the petitioner to confer concerning the charges made against him. On April 13, 1961, the petitioner appeared in court with Mr. Blaker and in reply to the district court’s inquiry, as to whether he had adequate opportunity to confer with counsel, he answered in the affirmative, and voluntarily entered his plea of guilty to each offense as alleged in each information.
The guarantee of effective assistance of counsel does not guarantee the most capable or learned counsel possible, but only a competent and reputable member of the bar. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; and Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219.) In any event the burden is cast upon the petitioner to show that his counsel was so incompetent and inadequate in representing him that the total effect was that of a complete absence of counsel. (Miller v. Hudspeth, supra; and Converse v. Hand, 185 Kan. 112, 340 P. 2d 874.) The petitioner has not sustained this burden.
In the petitioner’s brief and in his amended brief claim is made that he has not been given notice that the state intended to request sentencing under 21-107a, supra, commonly known as the Habitual Criminal Act. Assuming that prior notice of the hearing (to determine whether the petitioner is subject to the provisions of the habitual criminal statute) was not given, he was present at the hearing with his attorney, and no contention is made that he did not have full opportunity to be heard on all matters under con sideration and to controvert the allegations that he had been convicted of a previous felony which would make him subject to the penalties of the habitual criminal statute. He did not raise the question by a motion for a new trial or take an appeal. Under these circumstances his right to notice has been waived. (Browning v. Hand [10th Cir., U. S. C. A., 1960], 284 F. 2d 346, and authorities cited therein.)
Furthermore, the journal entry in each of these three cases has been corrected nunc pro tunc and discloses that the transcript of the proceedings on April 3, 1961, shows that the petitioner was notified at that time of the State’s intention to seek the greater sentence under 21-107a, supra.
By the petitioner’s pleading denominated “Traverse to Answer and Return” it is alleged that he had been informed the State would not request sentencing under 21-107a, supra. The petitioner’s statements concerning a bargain supposedly made with the county attorney are not corroborated. These statements, standing alone, do not overcome the presumption of regularity which is accorded a judgment regular on its face. The standard of proof necessary to justify the issuance of a writ of habeas corpus is not met by the uncorroborated and unsupported statements of a petitioner. (Wilson v. Hand, 181 Kan. 483, 311 P. 2d 1009, and authorities cited therein.)
Attacks upon the sufficiency of an information and the existence of a prior conviction are not matters which can be properly raised in a habeas corpus proceeding. (Gray v. Hand, 186 Kan. 668, 352 P. 2d 3; Coppage v. Hand, 185 Kan. 708, 347 P. 2d 400; and Ramsey v. Hand, 183 Kan. 307, 327 P. 2d 1080.)
We have considered all of the arguments and the authorities cited by the petitioner and find nothing that would authorize or justify the issuance of a writ.
The writ is denied. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from a conviction of the offense of robbery in the first degree (G. S. 1949, 21-527). The undisputed facts, as disclosed by the record, are as follows:
On the night of June 30, 1960, defendant Cecil Penry and his two companions, McPherson and Bond, began a robbery tour in Topeka. The three men drove around the eastern section of town where, prior to the robbery in question, they robbed the occupants of two separate automobiles.
About midnight Bryan Vestal and a Miss DeWitt were parked alongside the road near a television tower west of the city. The defendant and his two accomplices drove up and parked their automobile behind the Vestal car and defendant and one of his companions approached the Vestal car on either side, one armed with a ball bat and the other with a knife with which they threatened both Vestal and Miss DeWitt, and obtained from them sixteen dol lars. Shortly thereafter McPherson was apprehended and he admitted being involved in the holdup and implicated the defendant.
Defendant Penry was arrested, and on July 5, after being advised of his rights by Fred S. Jackson, assistant county attorney, made a complete, detailed statement of his activities during the night of June 30 and the morning of July 1. The defendant admitted his participation in the two robberies in the east part of town as well as the robbery in question.
The record further discloses that approximately four months later, on October 25, defendant was found by a court-appointed commission of three physicians to be insane and unable to comprehend his position or make his defense, and was committed to the Larned State Hospital under the provisions of G. S. 1949, 62-1531, where he remained until February 17,1961, at which time he was pronounced recovered from his disability and was returned to the Shawnee county district court for trial.
At the trial defendant’s accomplice, McPherson, testified to the robberies and to defendant’s action in the robberies on the night in question.
Mr. Jackson, former assistant county attorney, testified he made the initial investigation of the case and took the statement made by the defendant on July 5; that prior to taking the statement the defendant was advised of Mr. Jackson’s official position, that the sheriff was present and also that a certified court reporter was present and would record everything the defendant had to say; and that he advised defendant that he was making no promises in order to obtain the statement. Mr. Jackson further advised the defendant that anything defendant said could be used against him in court, and then asked defendant if he was willing to make a statement under those conditions. Defendant answered in the affirmative.
On cross-examination Mr. Jackson testified that in his opinion defendant was competent to malee a statement, that defendant appeared to be a normal person and exhibited normal behavior.
Defendant’s statement was admitted in evidence over his counsel’s objection on the sole ground of its competency and voluntariness without giving any reason for such objection.
The jury returned a verdict of guilty; and from an order overruling his post-trial motion defendant appeals.
It appears that defendant’s sole contention of error is thát inasmuch as he was found to be insane approximately four months after the commission of the offense and the making of his statement admitting the robbery that he overcame the presumption that he was sane and the burden shifted to the prosecution to prove that he was sane at the time of the commission of the offense and the making of the statement.
It is a fundamental principle of law that every person, except a young child, is presumed to possess a sufficient degree of reason to make him responsible and therefore punishable for his criminal acts. In other words, sanity is always presumed until the contrary appeal's. It is therefore never incumbent upon the prosecution to introduce in evidence any proof of sanity until insanity has been alleged in defense and until some evidence thereto has been introduced by the accused. (1 Burdick Law of Crime, § 204, p. 269; 22A C. J. S., Criminal Law, § 584.) Moreover, the burden of proof is on an accused pleading insanity to prove his legal incapacity to confess the crime. (Hinson, alias Moon, v. The State, 152 Ga. 243, 109 S. E. 661; 23 C. J. S., Criminal Law, § 828, p. 229.) It is stated in 2 Wharton’s Criminal Evidence, 12th Edition, § 386, that the burden of proof and the existence of a condition which affects the admissibility or the weight of his confession is upon the defendant. The prosecution is not required to prove the absence of a mental or physical condition which, if it existed, would make the confession inadmissible. In a criminal case the state may rest upon the presumption of sanity in establishing a prima facie case. It is then incumbent upon the defendant to overcome that presumption by competent evidence and to reasonably substantiate his plea of insanity. Such evidence must reasonably tend to show that at the time of the commission of the crime or at the time of the giving of the statement defendant was incapable of distinguishing right from wrong so as to excuse him from the legal consequences of his acts. (State v. Roy, 40 N. M. 397, 60 P. 2d 646, 110 A. L. R. 1; 23 C. J. S., Criminal Law, § 828.) It should be noted that at no time during the trial did defendant or his counsel contend that defendant was insane at the time of the commission of the offense or of the making of the statement.
Confessions freely and voluntarily made are prima facie admissible; and the burden of proof is upon the defendant pleading insanity to prove his legal incapacity to commit a crime and, consequently, his legal incapacity to confess a crime. This burden was not carried by the defendant. All that is disclosed by the record to rebut the presumption of sanity is the fact that four months after the commission of the offense and the making of the statement the defendant was adjudged insane and unable to comprehend his position and make his defense. The testimony of Mr. Jackson was that at the time the statement was made defendant appeared to be a normal person and exhibited normal behavior. In his statement defendant went into minute detail regarding his activities on the night in question and his participation in all three robberies. The best evidence of defendant’s competency is his statement. It shows unmistakably that it was made by one in complete possession of his mental faculties, since it discloses facts and details of all three robberies, especially the one in question, which were within his knowledge only and which could not have been suggested to him by the arresting officers or the assistant county attorney.
Because of the reasons above set out there is no ground for the argument that the evidence was sufficient to overcome the presumption of sanity at the time of the commission of the offense or the making of the statement. The judgment of the trial court is affirmed.
It is so ordered.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Jackson, J.;
This appeal involves an automobile accident in which the appellee was the plaintiff and received a verdict after a jury trial.
The defendant has appealed and first asserts that his motion for a directed verdict at the close of the evidence should have been sustained because there was no evidence to show negligence on the part of the defendant.
We shall briefly examine the facts necessaiy to decide the questions raised.
This accident occurred on U. S. Highway 69 at a point about seven and one-half miles north of Pittsburg. At some 1480 feet north from the place of the accident is located Steve’s Place, a gathering spot for the local gentry.
At about 8:45 p. m. defendant McAllister was called to the scene of a wreck where a car was in a deep ditch. Defendant arrived at the stalled car at 9 p. m. and placed his wrecker-work car in a proper position to pull the disabled car from the ditch. U. S. Highway 69 at this point is blacktop and twenty-one feet wide. The shoulders are not more than two or three feet wide. In effecting the removal, it was necessary for defendant to occupy part of the southbound lane of traffic on the highway. The wrecker was about eight feet wide and occuplied some five feet of the paved highway. The wrecker had fourteen lights of red and white — some as large as four and six inches in diameter; some of the lights blinked off and on to draw attention. The back of the truck was painted black and white with reflector or phosphorescent paint and designed to reflect oncoming lights. In addition, the defendant placed a flagman back of the wrecker with a three-cell flashlight to signal cars around the wrecker.
At about 9 p. m. the plaintiff, who had been playing cards at Steve’s Place, left for home. The evidence is conclusive that the plaintiff had not been drinking. The highway was absolutely dry; the night was clear but there was no moon. The plaintiff backed his car out into the highway and started south toward defendant’s wrecker. He said he noticed no lights around the wrecker at that time. Plaintiff saw other cars approaching from the south. After he had traveled some 300 feet, lights from one of these oncoming cars blinded him. He blinked his lights to signal the other driver but received no relief and he continued to drive south at a slightly reduced speed.
The flagman equipped with the three-cell flashlight saw plaintiff approaching and attempted to direct plaintiff away from the wrecker by waving the light. Finally, he had to jump to keep from being run over. Plaintiff never did see the flagman.
Plaintiff said that when he was within from eight to ten feet of the wrecker, the blinding lights of the oncoming car passed and he saw the wrecker for the first time but had no time to stop. He drove into the wrecker and claimed serious injuries.
The pleadings may be noticed enough to say that the defendant filed a cross petition for damage to the wrecker but has not appealed from that part of the judgment.
The sole question on the motion for directed verdict is was there any evidence of negligence on the part of the defendant?
It may be said that in a special question, the jury gave as the sole negligence of defendant the fact that flares were not put out.
The defendant frankly said he found the flares unsatisfactory and sent out the flagman with the flashlight instead. It should also be noted that G. S. 1949, 8-5,108, has been uniformly interpreted by this court to require flares only when a vehicle stopped on the highway has no lights. In the instant case, defendant’s truck had fourteen lights bobbing and flashing. Moreover, how likely would plaintiff be to see a flare when he failed to see a three-cell flashlight being waved at him by the flagman?
The following cases, however, make the rule clear. (Rasing v. Healzer, 157 Kan. 516, at page 525, 142 P. 2d 832; Brittain v. Wichita Forwarding Co., 168 Kan. 145, 211 P. 2d 77; Bredehoft v. Halliburton Oil Well Cementing Co., 177 Kan. 382,385, 279 P. 2d 298.)
The trial court did not direct the jury as to the aforementioned rule concerning flares. The defendant made no request for an instruction on the rule and the court simply ignored the matter of flares although the testimony had mentioned them on a few occasions.
It must be said that there had been an unsupported verdict rendered. The jury was somewhat confused. But what possible negligence on the part of defendant was shown? There was testimony that defendant’s truck was always observable by plaintiff for a distance of 500 feet and that the lights on it had at times been seen for three quarters of a mile. It is very difficult to understand why plaintiff failed to observe the truck.
In any event, plaintiff’s blindness was over a considerable period of time. He cannot continue when he cannot see and must correlate his speed to his vision. This has been the rule of this court for many years. (Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681; Bottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P. 2d 1004; Winfough v. Tri-State Insurance Co., 179 Kan. 525, 297 P. 2d 159; Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827.) We think that when plaintiff drove along the highway blinded by oncoming lights for nearly a half minute, he was guilty of contributory negligence as a matter of law, and that the court should have so held by granting judgment on the motion for directed verdict.
There are other matters in the briefs but in view of the above decision they need not be discussed in this opinion.
It may be noted that it is an old habit of some trial courts to always reserve for future consideration the motion for directed verdict. If the jury finds in line with the motion, the matter is over. Further mature consideration may indicate error in the verdict to the trial court. Furthermore, on appeal the appellate court is able to affirm the verdict if it is sustainable or it can order judgment for opposing party all without a new trial.
Under G. S. 1949, 60-3317, this court is able to make the order the trial court should have made. Therefore, the judgment for plaintiff must be reversed with directions to enter judgment for defendant on plaintiff’s cause of action. It is so ordered. | [
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Larson, J.:
The Board of Education of Unified School District No. 457 (Board) and the Garden City Educators’ Association (GCEA) both appeal from the trial court’s decision reviewing a ruling by the Secretary of the Kansas Department of Human Resources (Secretary).
The collectively negotiated master agreement in force between GCEA and the Board for the 1987-88 school year concerning resignations did not contain a liquidated damage clause and read as follows:
“ARTICLE VII “RESIGNATIONS
“Section A.
“RELEASE FROM TEACHER’S CONTRACT
“Any teacher who is under contract with the District will be released from that contract only by formal action of the Board of Education. The teacher requesting the release shall make application therefor in writing to the Superintendent of Schools stating the specific reasons for the requested release. Each such request will be judged on its own merits, and a personal conference between the teacher and the Board of Education will be held at the next regularly scheduled meeting of the Board of Education following receipt of the request; provided, however, that such personal conference may be waived by mutual agreement of the teacher and the Board of Education.
“Any teacher who is not released from his/her contract by Board action shall ftdfill the terms of such contract and any action by the teacher resulting in a failure to fulfill the terms of the contract shall amount to a breach of the contract and will subject the teacher to any and all legal remedies available. In the event of a breach of contract by the teacher, appropriate notation of the same will be placed in the teacher’s personnel file.”
The individual certified contracts between the Board and its teachers contained the following provision:
“Any teacher who has accepted a contract for the ensuing school year will be released from contract only by formal action of the Board of Education. A teacher requesting a release from contract between May 11 and June 1 will be granted a release provided a suitable replacement can be found. Each request thereaf ter will be judged on its own merits during a personal conference between the teacher and the Board of Education.”
During negotiations for the 1988-89 school year, the Board suggested the addition of a liquidated damages clause to the second paragraph of Article VII and offered the following alternatives:
“March 17, 1988, proposal
“Any teacher who is not released from his/her contract by Board action shall fulfill the terms of such contract and any action by the teacher resulting in a failure to fulfill the terms of the contract shall amount to a breach of the contract and will subject the teacher to any and all legal remedies available, including but not limited to immediate payment by the teacher to the District of the sum of $750.00 as liquidated damages, which sum may be withheld by the District from any funds otherwise due to the teacher. In the event of a breach of contract by the teacher, appropriate notation of the same will be placed in the teacher’s personnel file.”
“May 11, 1988, proposal
“Any teacher who is not released from his/her contract by Board action shall fulfill the terms of such contract and any action by the teacher resulting in a failure to fulfill the terms of the contract shall amount to a breach of the contract and will subject the teacher to any and all legal remedies available, including but not limited to the following liquidated damages: Immediate payment by the teacher to the district of the sum of $500.00 as liquidated damages if the contract is breached between May 11 and July 1, provided further that the amount of liquidated damages shall increase at the rate of $50.00 per month commencing July 1. All sums assessed as liquidated damages may be withheld by the District from any funds otherwise due to the teacher. In the event of a breach of contract by the teacher, appropriate notation of the same will be placed in the teacher’s personnel file.”
GCEA would not agree to either of the suggested liquidated damage provisions, which were not a part of the agreement reached in June of 1988 for the 1988-89 school year.
Between May 10, 1988, and the commencement of the school year/term (September 1, 1988) eighteen teachers submitted requests for resignation from their teaching contracts with U.S.D. No. 457. In each instance after June 1, 1988, the Board required a conference prior to acting upon a requested release, resulting in the following action:
Date of Request Name Action Date of Board Action
05-09 Linda Doubrava Granted 06-06
05-27 Janet Eggleston Granted 06-06
05-25 Elaine Fox Granted 06-06
05-24 Dan Hailing Granted 06-06.
05-27 Cindy Kinder Granted 06-06
05-31 Shirley Letourneau Granted 06-06
06-03 Nancy Wolf Granted 06-06
06-01 Linda Durham Granted 06-06
06-22 Debbie Gurley $ 750.00 for release 07-18
06-30 Cynthia Venard 750.00 for release (paid) 07-18
07-18 Kerry Sloan 750.00 for release (paid) 07-18
07-06 Karen Germann 750.00 for release 07-18
07-27 Tamara Peterson 775.00 for release (paid) 08-01
07-27 James Younger 775.00 for release 08-01
07-25 Joe Cribben 1,000.00 for release 08-15
Date of Request Name Action Date of Board Action
07-25 Leslie Cribben 1,000.00 for release 08-15 Karen Felberg upon suitable replacement being found
08-05 Robert Creamer 1,500.00 for release 08-15
On August 26, 1988, GCEA filed a complaint with the Secretary alleging that the Board had committed a prohibited practice under the Professional Negotiations Act, K.S.A. 72-5413 et seq., by unilaterally imposing a liquidated damages clause after such a clause had been negotiated for but not included in the contract. This was claimed to be a prohibited practice under K.S.A. 72-5430(b)(5) and (6).
The Board’s answer contended that prior negotiations between the parties were not relevant, denied unilaterally imposing a liquidated damages clause, and contested the Secretary’s authority to hear a complaint dealing primarily with the construction of an existing agreement.
Teachers Gurley, Germann, Younger, Cribben, Cribben, and administrator Creamer did not undertake teaching duties in the fall and did not pay the liquidated damages. The Board filed a complaint against each of them with the State Board of Education pursuant to K.S.A. 72-5412 and a civil suit against each of them in the Finney County District Court alleging breach of contract and requesting damages in excess of $10,000.00. The complaint and suit against Creamer was settled. The suits against the others are pending.
The Secretary determined that a prohibited practice did not occur and denied GCEA’s complaint. GCEA appealed to the district court, which affirmed the Secretary’s decision that a prohibited practice did not occur, but enjoined the Board from requiring “liquidated damages” for breach of contracts in the future and ordered the Board to reimburse all of the money collected from teachers requesting to be relieved from their 1988-89 contracts.
After both parties’ requests to amend findings, conclusions, and judgment were denied, the Board appealed from the order award ing injunctive relief and monetary damages, and GCEA cross-appealed from the judgment that a prohibited practice did not occur.
The trial court applied the appropriate scope of review.
K.S.A. 1989 Supp. 72-5430a regarding prohibited practices complaints provides:
“(b) . . . Any action of the secretary pursuant to this subsection is subject to review and enforcement in accordance with the act for judicial review and civil enforcement of agency actions. . . .
“The action for review shall be by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238 and amendments thereto, and the court may, in its discretion, permit any party or the secretary to submit additional evidence on any issue.”
The Board relies on this court’s opinion in U.S.D. No. 279 v. Secretary, Kansas Dept. of Human Resources, 14 Kan. App. 2d 248, 255, 788 P.2d 867 (1990), aff'd in part, rev’d in part 247 Kan. 519, 802 P.2d 516 (1990), wherein it was stated:
“Review of the Secretary’s decision is taken in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, which provides for initial review of the Secretary’s action in district court. K.S.A. 1989 Supp. 72-5430a(a) and (b); K.S.A. 77-609. On appeal this court must adhere to the same standards as the district court.
‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.
‘In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.’ Board of Johnson County Comm’rs v. J.A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986) (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶¶ 1, 2, 436 P.2d 828 [1968]).”
This wording from U.S.D. No. 279 relied upon by the Board is not an accurate statement of the law.
This exact issue was determined by the Kansas Supreme Court in U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 139-40, 785 P.2d 993 (1990), which, because of its timing, may not have been available to the parties and our court in U.S.D. No. 279. U.S.D. No. 352 was a prohibited practice case in which it was recognized that although the Act for Judicial Review and Civil Enforcement of Agency Actions does apply, K.S.A. 77-621 contains the caveats, “Except to the extent that this act or another statute provides otherwise” and “K.S.A. 1988 Supp. 72-5430a specifically provides for a trial de novo to the district court in cases arising under the Professional Negotiations Act.” 246 Kan. at 139.
Because of the trial de novo standard available to the trial court, it was appropriate for it to make a complete and independent review of the record in this case.
U.S.D. No. 352 contains further directions to an appellate court when it states:
“Under K.S.A. 77-623, an appellate court is to review a district court’s review of an agency action in the same manner it would review any other decision of a district court in a civil matter. ‘Generally, a litigant must object to inadequate findings and conclusions of law in order to give the trial court an opportunity to correct them [Citation omitted.] In the absence of an objection, omissions in findings will not be considered on appeal.’ Southwest Nat’l Bank of Wichita v. ATG Constr. Mgt., Inc., 241 Kan. 257, 265, 736 P.2d 894 (1987). ‘This court’s review of conclusions of law is unlimited.’ Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). The interpretation of a statute is a question of law. It is our function to interpret a statute to give it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).” 246 Kan. at 140.
The trial court properly ruled that the Board did not commit a prohibited practice.
The GCEA complaint alleged the Board had committed a prohibited practice under K.S.A. 72-5430(b)(5) and (6), which provides as follows:
“It shall be a prohibited practice for a board of education or its designated representative willfully to:
“(5) refuse to negotiate in good faith with representatives of recognized professional employees’ organizations as required in K.S.A. 72-5423 and amendments thereto;
“(6) deny the rights accompanying recognition of a professional employees’ organization which are granted in K.S.A. 72-5415.”
The manner in which this issue was viewed by the Secretary and the trial court differs, although each reached the same result that no prohibited practice occurred.
The Secretary found:
“2. The school board’s action of negotiating with teachers who desired to break their contract was consistent with Article VII of the teacher contract for the 1987-88 school year.
“3. The school board did not unilaterally change the contract when it demanded damages from teachers who desired to break their contracts, but was entirely within its rights under the contract to make such demands, because the contract specifically states that
‘. . . any action by the teacher resulting in a failure to fulfill the terms of the contract shall amount to a breach of the contract and will subject the teacher to any and all legal remedies available.’ (Emphasis added).
“4. The school board’s attempts to negotiate a payment of damages with each teacher was nothing more nor less than an attempt to reach a cash settlement of the teacher’s liability to the board for breach of contract.”
The findings allowed the Secretary to reach the following conclusions of law:
“1. ‘Legal remedies’ for breach of contract as used in Article VII of the collective bargain between GCEA and the school board includes the right of the board to be reimbursed for its incidental and consequential damages in the event a teacher chooses not to fulfill his or her teaching contract.
“2. The board did not make a unilateral change in the existing teacher contract when it demanded damages from teachers for breach of contract, but was simply exercising its existing rights set out in Article VII of the contract.
“3. The U.S.D. 457 school board did not commit a prohibited practice by enforcing its existing rights under the contract.
“4. Although the GCEA and the school board negotiated and failed to reach agreement about the subject of liquidated damages for all teachers, the failure to reach agreement on the subject in collective bargaining did not result in any loss by the school board of its rights to seek damages for breach of contract against individual teachers.”
The Secretary found the prohibited practice complaint to be without merit and denied GCEA’s request to void the Board’s negotiations with individual teachers over liquidated damages.
The trial court devoted the majority of its opinion to what it viewed as the Board’s unenforceable attempt to collect liquidated damages and somewhat summarily made the following finding that a prohibited practice did not exist:
“8. As a collateral matter, plaintiff has requested the Court find the defendant’s conduct amounted to a ‘prohibited practice’ as defined in K.S.A. 72-5430(b) (5) and (6). A review of these statutory provisions in light of the evidence presented fails to convince this Court that defendant refused to negotiate the adopted contract in good faith or that the defendant denied any rights to those belonging to a professional employees’ organization, such as plaintiff. There is no evidence before this Court regarding the negotiations preliminary to the contract other than the defendant’s proposed amendments to Article VII. Similarly, the plaintiff has failed to direct the Court’s attention to any specific employee right which defendant has violated or denied. A teacher’s late resignation and the employer’s refusal to release said teacher from his or her contract is not such property right as was anticipated by the statute. The Court in this regard, therefore, must conclude that plaintiff has failed to sustain its burden of proof on the allegation defendant committed a prohibitive practice.”
U.S.D. No. 352 instructs us that on appeal we review the trial court as in any other decision, 246 Kan. at 139, but the trial court’s conclusion that GCEA failed to sustain its burden of proof is a negative finding which may require a different standard of review.
“ ‘The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ [Citation omitted.]” Brown v. Lang, 234 Kan. 610, 616-17, 675 P.2d 842 (1984).
GCEA claims that the Board is, in effect, forcing the usage of its rejected proposal for liquidated damages which violates its duty to bargain in good faith and is a prohibited practice. The Board’s contention is simply that it did nothing more than what it had the right to do under the negotiated contract. Once a teacher under contract desired to be released from his/her agreement a conference with the Board is required. If release is not agreed upon the failure of the teacher to fulfill the terms of the contract is a breach subjecting the teacher to legal remedies.
We lack guidance from reported Kansas cases as to what activity constitutes a prohibited practice, although the trial court, Court of Appeals, and Supreme Court all agreed in U.S.D. No. 279 that it was a prohibited practice for the Board to reduce its unilateral contract offers by the costs it incurred in mediation and factfinding. 14 Kan. App. 2d 248, Syl. ¶ 4. GCEA offers National Labor Relations Board cases as authority, while the Board asks us to apply the ancient doctrine of merger to preclude the consideration of prior negotiations. See Hall v. Mullen, 234 Kan. 1031, Syl. ¶ 3, 678 P.2d 169 (1984); Drake v. Dodsworth, 4 Kan. 159 (1867). We do not find either argument to be persuasive, although we agree with the Secretary and the trial court that a prohibited practice did not occur.
We were told in U.S.D. No. 315 v. De Werff, 6 Kan. App. 2d 77, 80, 626 P.2d 1206 (1981), that in the school year 1978-79, 39 Kansas school districts had contracts containing some form of liquidated damages provision applicable on release of a teacher from contractual obligations. Because the amount of liquidated damages, if any, would vary in every case depending on the ease or difficulty for the Board to replace a teacher seeking release from a contract, it was reasonable for the Board to propose that this case-by-case negotiation or litigation be replaced by the payment of a set amount. It is equally realistic that GCEA would decline to agree with a proposal requiring the payment of $750.00, or $500.00, to obtain the release from a contract when a comparably qualified teacher might be obtained for the position without any out-of-pocket expense to the school district.
The actions of both the Board and GCEA were consistent with the exercise of good faith negotiations. The plain wording of K.S.A. 72-5430(b)(5) is that it is a prohibited practice to “refuse to negotiate in good faith.” This the Board clearly did not do. There is insufficient evidence from the stipulations to justify a finding that the Board is guilty of a grand design to obtain by coercion what could not be obtained by negotiations.
Under our scope of review the decision of the trial court could be affirmed because of the negative finding that GCEA failed in its burden of proof, or, as we choose to do, because the actions of the Board do not, as a matter of law based upon the stipulated facts, constitute a prohibited practice.
We cannot here, nor did the opinions in U.S.D. No. 279, lay down any bright line rule of easy future application as to when a prohibited practice occurs. Whether an act or action constitutes a prohibited practice must be determined in each case based upon the facts and their effect on the negotiation process.
Once it was determined the Board did hot commit a prohibited practice, the trial court’s granting of an injunction and ordering return of settlement payments was improper..
The wording of K.S.A. 1989 Supp. 72-5430a first states in subsection (a) that “[a]ny controversy concerning prohibited practices may be submitted to the secretary.” That section then sets forth the grant of authority and power to the secretary in subsection (b) where it says:
“The secretary shall either dismiss the complaint or determine that a prohibited practice has been or is being committed, and shall enter a final order granting or denying in whole or in part the relief sought.” (Emphasis added.)
In U.S.D. No. 279, Justice Herd opined that K.S.A. 1989 Supp. 72-5430a grants broad power to the Secretary to “fashion appropriate relief when a prohibited practice has occurred. ” We believe that the converse of this statement must also be true and when a prohibited practice has not occurred the Secretary’s power is limited to the dismissal of the complaint.
It logically follows that once the Secretary, the trial court, and our court agree that no prohibited practice occurred, there is no basis for the trial court’s order granting injunctive relief and the return of negotiated for and paid monetary damages.
GCEA claims K.S.A. 77-617 as justification for the trial court’s decision, while the Board cites K.S.A. 77-622 as authority that “[t]he court may award damages or compensation only to the extent expressly authorized by another provision of law.” We agree with the Board’s position. K.S.A. 77-603(b) makes it clear that “[tjhis act creates only procedural rights and imposes only procedural duties.”
A court “may not sustain or award relief beyond the authority of the administrative agency.” 2 Am. Jur. 2d, Administrative Law § 755, p. 655. We hold that where the authority granted to the Secretary by the legislature is limited to dismissal or the finding of a prohibited practice and a prohibited practice does not exist, the only appropriate remedy is the dismissal of the complaint.
The breach of contract claims between the teachers and the Board may properly be determined in the pending lawsuits. The instances in which settlements were reached may not be reopened here.
The issues raised by the Board as to the constitutionality of K.S.A. 1989 Supp. 72-5230a and the extent of the Secretary’s jurisdiction were both answered in the Supreme Court opinion in U.S.D. No. 279 and do not require further comment here.
The ruling that a prohibited practice did not occur is affirmed. The trial court’s judgments enjoining the Board from assessing or attempting to collect liquidated damages and awarding damages plus interest to teachers who had paid liquidated damages are reversed. | [
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Miller, J.:
This case concerns an apparent discrepancy between two statutes, K.S.A. 1989 Supp. 8-1567(e) and K.S.A. 21-4614. The issue involved is whether the trial cburt erred in requiring that defendant Stephanie Urbanek serve five'consecutive days in jail, as required by 8-1567(e), thereby denying her jail time credit, as contemplated by 21-4614, for the approximately three days she spent in jail prior to posting bond.
The facts are not complicated, are not in dispute, and will be discussed only briefly. Suffice it to say that defendant was arrested in Shawnee County on August 12, 1989, for driving while under the influence and certain other traffic offenses. On January 12, 1990, she pleaded no contest to the DUI charge, a violation of 8-1567, and the other charges were, dismissed. Sometime between the time of her arrest and the date of her plea, defendant had been incarcerated for approximately three days in lieu of posting bond.
Defendant was sentenced on February 9, 1990, pursuant to 8-1567(e) because it was her second conviction. The transcript of the sentencing hearing reads in part:
“At this time, then, the Court will impose the following judgment and sentence:
“The defendant will be fined $1,000, paroled to $500, plus $110 evaluation fee, $92 court costs, and $25 probation fee.
“You will be sentenced to one year in the Shawnee County Jail, paroled to serve five consecutive days. Then you’ll be granted two years’ supervised probation under the following conditions.”
The court went on to specify the conditions of probation, none of which are material to this appeal.
After the sentence was announced by the court, counsel requested that defendant be given credit for the three days she spent in jail in lieu of bond toward the requirement that she serve five consecutive days. The court denied the request.
At the outset, we feel compelled to comment that we are confused by the sentence imposed by the trial court. We are not sure what is meant by “fined $1,000, paroled to $500” or “sentenced to one year in the Shawnee County Jail, paroled to serve five consecutive days.” Nor do we understand how this defendant can be “granted two years’ supervised probation” after having served time in jail.
We would note that parole “means the release by a court of competent jurisdiction of a person confined in the county jail or other local place of detention after conviction and prior to expiration of such person’s term, subject to conditions imposed by the court and its supervision.” K.S.A. 21-4602(4). Probation “means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of sentence, without imprisonment, subject to conditions imposed by the court and subject to the supervision of the probation service of the court.” K.S.A. 21-4602(3). See State v. Dubish, 236 Kan. 848, Syl. ¶ 1, 696 P.2d 969 (1985).
Upon inquiry by this court at oral argument, counsel for the State and for the defendant advised that the typical procedure in Shawnee County is to impose sentence as outlined above. They suggested the purpose is to save the necessity of a second parole or probation hearing in the face of crowded dockets. If this is true, it is a process which is technically flawed. One cannot be paroled under our statutes until he or she has been incarcerated. One cannot be placed on probation after having first been incarcerated. This having been pointed out, we will turn to the issue on appeal.
Defendant contends she is entitled to three days’ jail time credit in computing the five consecutive days’ sentence she was ordered to serve. She bases her argument on K.S.A. 21-4614, which reads as follows:
“In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury or upon completion of an appeal, the judge, if he or she sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his or her parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall he computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case. In recording the commencing date of such sentence the date as specifically set forth by the court shall be used as the date of sentence and all good time allowances as are authorized by the Kansas adult authority are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state, correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted.” (Emphasis added.)
The State, on the other hand, contends that defendant is not entitled to any jail time credit, based on 8-1567(e). It claims that, since the statute required a second-time DUI offender to serve five consecutive days in jail “before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released,” defendant is not entitled to any credit toward the five days for the jail time she has already served.
Because the statutes involved appear to be contradictory, at least at first glance, we must look to certain rules of statutory construction. Fundamental among those rules is that the purpose and intent of the legislature governs when interpreting the meaning and effect of a statute. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In determining legislative intent, this court should “consider the language of the statute, the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effect the statute may have under the various constructions suggested.” State v. Martin, 14 Kan. App. 2d 138, 139, 783 P.2d 1316 (1989).
Prior to the 1985 amendment to 8-1567, a second-time DUI offender was required to serve at least five days in jail. In 1985, the word “consecutive” was added. (L. 1985, ch. 48, § 9.) At present, K.S.A. 1989 Supp. 8-1567(e) reads:
“On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. Except as provided in subsection (g), the person convicted must serve at least five consecutive days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008 and amendments thereto.” (Emphasis added.)
We note that under 8-1567(e) the listing of probation as a sentencing option following five consecutive days’ imprisonment is erroneous and should be corrected by the legislature. A review of the legislative history of 8-1567 from 1982 to the present clearly indicates that second- and third-time DUI offenders will receive more sure and severe punishment than may have been the case in the past. See Martin, 14 Kan. App. 2d at 140. We conclude that it was the intent of the legislature that any second-time offender spend a minimum of five consecutive days in jail upon conviction, regardless of how long he or she may have been incarcerated in lieu of bond.
Such a conclusion does not mean that defendant herein loses the jail time credit required by 21-4614. She is still entitled to it; however, it applies to her entire sentence and not to the minimum requirement. If, for example, defendant’s parole is revoked after she has served five consecutive days, the credit would apply to the balance of the sentence she could serve upon revocation. Her sentence in this case was one year. From that would be deducted the five consecutive days served and the three days’ jail time credit. Thus, the maximum that defendant could be required to serve upon revocation would be 357 days.
While we agree the trial court was correct in denying defendant three days’ jail time credit, we remand for resentencing so that the confusing matters of paroling a fine and placing defendant on probation after incarceration can be clarified.
Affirmed, but remanded for clarification and correction of sentence. | [
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