text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
The opinion of the court was delivered by
Hoch, J.:
Plaintiff sought to recover on a life insurance policy. She appeals from orders sustaining motions to strike out parts of her second amended petition and to strike the remaining portion of the petition from the files. She also seeks review of orders sustaining motions to strike and demurrers to preceding petitions.
The alleged errors relating to the two preceding petitions may well be disposed of at the outset. The original petition was filed on December 5, 1939.' On April 27, 1940, the trial court sustained a motion to strike out certain parts, and on September 7, 1940, sustained a demurrer to the remaining part of the petition. No appeal was taken from these orders, and on November 7, 1940, the claimant filed an amended petition. To this amended petition a motion to strike certain parts was leveled on November 29, 1940, and sustained on March 15,1941. From this order and prior adverse orders appeal was taken on May 14, 1941. On June 18, 1941, a demurrer to the amended petition, remaining, was sustained and three days later, on June 21, 1941, plaintiff filed a second amended petition. On August 22, 1941, the defendant filed a motion to dismiss the appeal, which motion, uncontested, was granted by this court on September 16, 1941. By filing her second amended petition, after having instituted appeal from rulings on the preceding petitions, the plaintiff acquiesced in the prior rulings and could not appeal therefrom while her second amended petition was pending. (Hamill v. Hamill, 134 Kan. 715, 717, 8 P. 2d 311; Harmon v. James, 146 Kan. 205, 207, 208, 69 P. 2d 690, and authorities therein cited; Rodenberg v. Rodenberg, 149 Kan. 142, 143, 86 P. 2d 580; Reynolds v. Armour & Co., 149 Kan. 460, 461, 87 P. 2d 530.) Accordingly, we cannot now review the rulings on the motions and demurrers directed at the original and the first amended petition.
The second amended petition—hereinafter referred to as the petition—alleged that C. M. Case, an agent of defendant, The Mutual Insurance Co., who was authorized “to solicit applications,” “to collect premiums therefor,” and to “deliver policies to. applicants on applications allowed by the defendant company,” solicited Paul F. Dwinnell (deceased husband of the plaintiff) “sometime prior to May 29, 1939,” and prevailed upon him to sign an application for a ten-year term life insurance policy in the sum of $5,000. Copy of the application was attached to and made a part of the petition. It was further alleged that Dwinnell submitted to a medical examination on June 12, 1939, and that the examining physician reported to the company that he was in good health and an insurable risk; that “some time prior to June 25, 1939,” the defendant company issued the policy and sent it to Case, their agent, and that Case,
“Took said policy of insurance to the office and place of business of the said Paul F. Dwinnell, in Topeka, Kan.; that at said time and in the absence of the said Paul F. Dwinnell, the duly authorized agent of Paul F. Dwinnell, Erwin Beser, tendered to and offered to pay to the said C. M. Case, agent of the defendant company, the said monthly premium which the said C. M. Case had advised the said Paul. F. Dwinnell was due on said policy, amounting to $9.75, but the said C. M. Case, agent of the defendant company, refused to accept said premium."
It was further alleged,
“That under the specific and implied terms of said application for insurance above referred to, and the well-established customs of the life insurance business, it became the duty of the defendant company, through its agent, C. M. Case, to deliver said policy of insurance to the said Paul F. Dwinnell and put said insurance in full force and effect on a date not later than June 26, 1939, but the said C. M. Case, agent of the defendant company, failed and refused to deliver said policy of insurance to the said Paul F. Dwinnell at the time the premium then due on said policy was tendered to him, or at any other time, and wrongfully and negligently failed to see the said Paul F. Dwinnell or attempt to see him or attempt to deliver said policy to him at any time after he, the said C. M. Case, received said policy for delivery.” (Italics supplied.)
It was further alleged that Dwinnell was alive and in good health until June 28, 1939—two or three days after the alleged tender of premium by Reser, in the absence of Dwinnell—and that on that date Dwinnell became sick and that he died on July 4, 1939; that Dwinnell had—
“Fully performed all of .the .obligations and conditions conferred upon him by the specific and implied terms of said application for insurance and the established customs of the life insurance business, and at all times from May 29, 1939, up to and including a part of June 28, 1939, the said Paul F. Dwinnell was alive and was in good health, and the said C. M. Case, agent for the defendant company, could have easily ascertained said facts had he made any effort to do so, and could have delivered said policy to the said Paul F. Dwinnell under the terms of said application had be made any effort to do so, and, according to the specific and implied terms of said application and the established customs of the life insurance business, the said C. M. Case should have delivered said policy above referred to to the said Paul F. Dwinnell not later than June 26, 1939. That on account of the negligence and failure of the said C. M. Case, agent of the defendant company, to comply with the specific and implied terms of said application and the established customs of the life insurance business, there was not a physical delivery of said policy of insurance above referred to prior to the death of the said Paul F. Dwinnell, but there was a constructive delivery, and in law a delivery, of said policy by the defendant company to the said Paul F. Dwinnell during the time he was alive and in good health, and there was a full intention on the part of both the said Paul F. Dwinnell and the defendant company that' said policy be delivered to the said Paul F. Dwinnell at a time not later than June 26, 1939.” (Italics supplied.)
Further that—
“On account of the facts and allegations herein mentioned, [defendant company] became indebted to the plaintiff, the beneficiary named in said policy, in the sum of $5,000,” less the first premium.
The prayer was for—
“Judgment against the defendant company on said policy of insurance in the sum of four thousand nine hundred ninety and 25/100 dollars ($4,990.25), with interest from July 4, 1939.”
Among other usual provisions, the written application signed by Dwinnell contained these agreements:
“That no agent shall have the right to make, alter, modify or discharge any contract issued on this application . . .
“That except under conditions stated in the attached binding receipt, there shall be no contract of insurance until the policy shall have been issued by the company and delivered by a duly authorized agent of the company and the first premium paid thereon, all during the applicant’s life and continuance in good health.” (Italics ours.)
It is not contended by appellant that “the attached binding receipt” referred to above affects the issue here presented.
On July 1, 1941, the defendant filed two motions. The first motion was, in the main, to strike all references in the petition to “implied” terms of the written application and all those portions in which it was alleged, in substance, that it was the “duty” of the defendant company, through its agent, to deliver the policy not later than June 26; that the agent “wrongfully and negligently” failed to deliver the policy or to attempt to see and deliver the policy to Dwinnell; that the agent “could have delivered said policy,” that he “should have delivered” it, and that on account of the agent’s “negligence and failure to comply with the specific and implied terms” of the application, there was “a constructive delivery, and in law’a delivery,” of the policy.
The second motion was to strike the remaining part of the petition on the ground that it constituted no substantial change from the first amended petition as to which a demurrer had previously been sustained. Both motions were sustained on September 18, 1941. The plaintiff having elected not to plead further, judgment was entered “that the plaintiff take nothing” and that the defendant have judgment for costs. Thereafter the plaintiff appealed from the orders sustaining the motions to strike. She did not appeal from the judgment.
We first note appellee’s contention that an appeal from the orders striking the petition cannot be entertained because no appeal was taken from the final judgment. Without question the orders striking the petition were final orders which appellant was entitled to have reviewed (G. S. 60-3302, 60-3303; Grain Co. v. Cooperative Ass’n, 109 Kan. 293, 295, 198 Pac. 964). Thereafter judgment was entered that plaintiff take nothing, and for the defendant for costs. Appellee urges that since no appeal was taken from the final judgment, a reversal of the prior orders sustaining motions to strike would not nullify the judgment and that therefore appeal merely from the intermediate orders should not be entertained. Whatever may be said for appellee’s argument, this court has held that review of an order or ruling, appealable under our statute, not only may not be foreclosed by any action which the court or opposing litigants may subsequently take in the action, but that the party appealing from the intermediate order does not forfeit his right of such appeal by failure to appeal from a subsequent adverse judgment. In the case of First National Bank v. Smith, 143 Kan. 369, 370, 55 P. 2d 420, defendant’s demurrer to the petition was sustained and time given to file an amended petition. The plaintiff not having filed an amended petition within the time provided, the action was dismissed. After dismissal, but within the statutory time for appeal, the plaintiff appealed from the order sustaining the demurrer. He did not, however, appeal from the judgment of dismissal. The same argument was advanced that is here made that by failing to appeal from the final judgment of dismissal he forfeited his right to appeal from the prior order. The appeal, however, was entertained, and the. court also observed that while “it might have been well for appellant to have suggested a stay or continuance until the supreme court had determined the correctness of the intermediate appealable order,” the fact it did not do so likewise did not preclude its right of review.
In the opinion it was frankly admitted that cases cited' by appellee from other jurisdictions appear to. support a contrary rúle. (See, also, as in line with the holding in the Smith case, although not involving quite the same situation: Bringle v. Gale Township, 127 Kan. 115, 272 Pac. 126; Hicks v. Parker, 143 Kan. 763, 57 P. 2d 76, and 148 Kan. 679, 680, 84 P. 2d 905; Kotwitz v. Gridley Motor Co., 148 Kan. 676, 84 P. 2d 903.)
We come to the principal issue. Did the court err in striking from the petition the portions indicated? The question calls for no extended discussion. It is well settled that an applicant who signs a written application for insurance is bound by its terms. (Green v. Insurance Co., 106 Kan. 90,186 Pac. 970; Cure v. Insurance Co., 109 Kan. 259, 198 Pac. 940; Hembree v. American Ins. Union, 121 Kan. 271, 246 Pac. 683; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571; West v. Metropolitan Life Ins. Co., 144 Kan. 444, 61 P. 2d 918; Nixon v. Manhattan Mutual Life Ins. Co., 153 Kan. 39, 109 P. 2d 150.) The instant application specifically provided that the terms could not be modified in any way by the agent and that the policy was to be in force only after delivery to the applicant, upon payment of the first premium, the’ applicant then being in good health! The petition alleges that the applicant was not at his place of business when the agent called with the policy on June 26 and that the agent refused to accept the premium and deliver the policy to Reser. It is not even alleged that Dwinnell had advised Case, the insurance agent, that it was all right to deliver the policy to Reser. Case had nothing but Reser's statement that he was authorized to receive the policy. Certainly, under the plain and definite terms of the application, Case was within his rights—if not, indeed within his positive duty—when he refused to deliver the policy to Reser in the absence of Dwinnell. He was entitled to see Dwinnell and the company was entitled to have him see Dwinnell before delivering the policy. In the absence of delivery, the company cannot be held liable on the policy. [Nixon v. Manhattan Mutual Life Ins. Co., supra, and cases cited therein, p. 44.)
We have examined the cases cited by appellant in support of so-called “constructive delivery,” but do not find them persuasive in this case. We note two of them, to indicate typical distinctions.
In Waldner v. Metropolitan Life Ins. Co., 149 Kan. 287, 292, 293, 87 P. 2d 515, the defendant company defended on the ground that satisfactory proof of insurability had not been furnished. But on the facts in the case it was held that the company had waived further proof of insurability in connection with an application for reinstatement. The jury found that the company had accepted and cashed a check for the premium and had retained it for five months. In the instant case, the agent refused to accept the premium from Reser.
Again, in Forney v. Insurance Co., 87 Kan. 397, 124 Pac. 406, there was an application for reinstatement and the issue of liability turned on the question of whether the company had received the required premium. While the decision holding the company liable rested partly on waiver, it also appeared that full payment of the premium had been made to the company’s agent three days before the death occurred. No comparable situation here exists.
No facts are' here alleged upon which to predicate waiver of delivery and appellant does not contend for waiver. She sues on a policy which she contends was “constructively” delivered. But while seeking to recover on the theory that there was a completed contract of insurance, her allegations are that the agent “should have delivered” the policy and that he “wrongfully and negligently” refused and failed to deliver it. Whether she had a cause of action for damages for loss sustained by reason of such alleged tortious, actions on the part of the agent is a question not before us. Such allegations were properly stricken from a petition seeking recovery solely on the policy.
One remaining question requires only brief comment. Upon careful comparison of the first amended petition as to which a demurrer had been sustained and the second amended petition, remaining, it is clear that they are not substantially different and that the court was correct in sustaining the motion to strike the latter from the files. The same issue had been presented and determined when the previous demurrer was sustained and from that ruling no appeal had been taken. Furthermore, it is equally clear that the remaining petition stated no cause of action.
We find no error, and the judgment is affirmed. | [
-80,
122,
-43,
-83,
-118,
96,
32,
-102,
114,
-63,
-89,
83,
-87,
-45,
-124,
125,
-38,
45,
97,
74,
-10,
-93,
22,
-126,
-10,
-13,
-111,
-41,
-79,
95,
124,
54,
76,
48,
-126,
-43,
70,
-64,
-63,
28,
-114,
6,
-103,
-19,
-39,
-54,
48,
123,
112,
15,
113,
-98,
-29,
41,
29,
-57,
-88,
44,
-54,
-72,
-48,
-72,
-117,
13,
-1,
16,
33,
6,
-98,
71,
80,
8,
-100,
49,
16,
-23,
50,
54,
-122,
20,
103,
-103,
0,
102,
99,
113,
21,
-17,
-120,
-104,
54,
16,
47,
-90,
-110,
24,
11,
37,
-74,
-103,
116,
16,
-121,
-2,
-18,
-36,
29,
-84,
5,
-117,
-74,
-75,
95,
100,
24,
11,
-26,
-125,
-80,
116,
-55,
-30,
92,
71,
59,
-69,
-122,
-124
] |
The opinion of the court was delivered by
Allen, J.:
This is an appeal from an order and judgment of Leavenworth county denying the petition of appellant for a writ of habeas corpus.
Under an information filed in the district court of Sedgwick county the petitioner was charged with robbery in the first degree. On the 8th day of December, 1939, the petitioner entered a plea of guilty to the charge, and under the judgment of the court received an indeterminate sentence in the state penitentiary. The petition for a Writ of habeas corpus alleges that petitioner is now confined in the penitentiary under a commitment issued pursuant to the judgment. The petition for the writ was dismissed by the district court. On this appeal many errors are assigned.
1." Petitioner contends he was denied his right of a writ of habeas corpus because he was not present at the hearing upon the application for the writ. It is the practice in'this state to make a preliminary determination as to the propriety of issuing the writ of habeas corpus. In 25 Am. Jur., 238, Habeas Corpus, § 131, it is stated:
“While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation upon the filing of the petition; judicial discretion is exercised in its issuance, and such facts must be made to appear to .the judge to whom the petition is presented as, in his judgment, prima facie, entitle the petitioner to the writ. The writ need not, therefore, be awarded where it appears upon the showing made by the petitioner that if he were brought into court and the cause of his commitment inquired into, he would be remanded, but only where the application therefor contains allega tions which, if true, would authorize the discharge of the person held in custody.”
The orderly administration of justice would not be promoted by the presence of the petitioner at the hearing upon the preliminary application for the writ. If, however, the petitioner upon his application for the writ of habeas corpus makes a prima facie showing of wrongful or illegal restraint the writ will issue and the petitioner will be brought before the court or judge issuing the writ as directed by the statute (G. S. 1935, 60-2205).
2. Petitioner contends the information under which he was charged with the crime of robbery in the first degree is insufficient in point of law. Our statute G. S. 1935, 60-2213, provides:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:
“Second. Upon any process issued on and final judgment of a court of competent jurisdiction.
“Fourth. Upon a warrant of commitment issued from the district court or any other court of competent jurisdiction upon an indictment or information.”
Under the statute the sufficiency of the information cannot be considered upon an application for a writ of habeas corpus. Prohibitory Amendment Cases, 24 Kan. 700, 725; In re Max Wheatley, Petitioner, 114 Kan. 747, 220 Pac. 213; Freeman on Judgments, 5th ed., section 1549; Petition of Semler, 41 Wis. 517; Ex parte Tobias Watkins, 3 Pet. (U. S.) 193, 7 L. Ed. 750.
We may state, however, that we have examined the information and find it clearly sufficient under our statute G. S. 1935, 62-1010.
3. Petitioner asserts that he did not have the aid of counsel and was not informed of his rights as guaranteed by the constitution of the state of Kansas. In our recent case of Jones v. Amrine, 154 Kan. 629, 121 P. 2d 263, it was held as stated in the syllabus:
“An accused, who on arraignment on a criminal charge, without counsel and without making request for counsel, personally, understandingly, freely and voluntarily, enters a plea of guilty of the crime charged, thereby waives the right to be represented by counsel.” (Syl. f 1.)
From the record before us it is clear the defendant was not denied any right guaranteed to him by the constitution or the laws of the state of Kansas or by the constitution of the United States.
The sixth amendment to the constitution of the United States giving accused in criminal cases right to assistance of counsel applies only to prosecutions under federal laws. (Commonwealth v. Smith, 344 Pa. 41, 24 Atl. 2d 1.) See Jones v. Amrine, supra, and cases there cited.
A judgment of a court carries with it the presumption of regularity and cannot lightly be set aside by collateral attack even on habeas corpus.
Finding no error in the record, the judgment must be affirmed. It is so ordered. | [
-16,
-28,
-3,
62,
11,
-31,
42,
-98,
81,
-77,
103,
115,
-27,
-38,
5,
121,
119,
105,
85,
121,
74,
-105,
103,
65,
114,
-13,
19,
-107,
50,
-53,
-12,
68,
76,
-96,
-94,
-59,
70,
-118,
-89,
-36,
-52,
7,
-119,
-15,
-63,
10,
56,
43,
62,
15,
-79,
-34,
-29,
42,
18,
-62,
-55,
41,
-37,
-67,
-63,
-39,
-97,
13,
127,
6,
-93,
2,
-100,
35,
112,
-82,
-68,
17,
3,
-23,
49,
-106,
-122,
52,
107,
-69,
44,
102,
98,
1,
109,
-22,
-88,
-87,
14,
126,
-115,
-89,
-112,
16,
106,
32,
-106,
-99,
117,
52,
38,
124,
111,
4,
124,
102,
-118,
-34,
-12,
-79,
14,
124,
-94,
95,
-29,
-95,
0,
113,
-123,
-78,
92,
103,
121,
59,
-50,
-102
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for divorce and for the construction of a contract, and if the contract was not construed in a certain way, asking that it be set aside. The divorce was granted, the contract set aside and alimony awarded. From so much of the judgment as related to the contract and alimony the defendant has appealed.
The petition alleged that plaintiff and defendant had entered into an agreement whereby plaintiff, in consideration of waiving her right of inheritance in all property owned by defendant, was to receive a deed to two described quarter sections of land in Gray county; and that a deed to two quarter sections was executed and delivered to her. The petition further alleged from October 12, 1940, to May, 1941, plaintiff and defendant were living apart, and defendant contributed $70 a month as support money for plaintiff and the three minor children; that from June, 1941, to the time of filing the petition defendant had contributed nothing; that the contract did not provide that it should be a complete settlement of' the property rights of the parties, but was made in connection with a last will and testament which was made and executed by the defendant; that the matter of a settlement of their property rights was discussed by the parties and reduced to writing by the defendant, a copy of this writing was attached to the petition and marked exhibit B; that an agreement, exhibit A, attached to the petition was written by an attorney, and the defendant represented to the attorney and plaintiff that it was for the purpose of determining the rights of inheritance between the parties. The petition further alleged that in the event the court should construe exhibit A as determining the present property rights of the parties during their lifetime instead of as intended by the parties, then the contract should be set aside because defendant used duress in inducing plaintiff to sign it and plaintiff had signed it believing that it was only to determine her rights of inheritance and believing that defendant would carry out his oral agreement according to the terms of exhibit B; that the contract should be set aside for the further reason that at the time exhibit - A was entered into defendant represented that the real estate which plaintiff was receiving was free of encumbrance when as a matter of fact taxes were due and owing on it in the amount of about $500 and it was in danger of being lost by tax foreclosure, and these facts were known to defendant and unknown to plaintiff at the time the contract was signed, and' defendant fraudulently misrepresented these facts to plaintiff to secure her signature.
The prayer was for a divorce, the custody of the children, support money for the children, that the pretended contract be construed, or in the alternative be canceled, for a division of property and such alimony as the court should deem just and proper.
Exhibit A provided that the defendant would convey to plaintiff two quarter sections of land, and in consideration of this conveyance to her plaintiff agreed that it should be all of her husband's estate that she should receive, and she waived any right of inheritance and all homestead rights in his property. The agreement further provided that each of the parties could manage their property the same as if they were single. Exhibit B was as follows:
“1. I stay all night.
“2. &1500. I’ll keep the children this winter here.
“3. 2 q land.
“4. I give you all the household good.”
The answer was first a general denial, then it admitted the marriage and the birth of the three children and that defendant had provided proper support for the children up to May, 1941, but denied that during July, 1941, he refused to make further payments for the support of plaintiff and the children.
Defendant admitted the execution of the contract by the parties and denied that it was intended that the contract should not constitute a full settlement; that shortly prior to the time when the contract was executed plaintiff had abandoned defendant and expressed her determination to live apart from defendant and it was intended that the only remaining obligation of defendant was to support the minor children; that plaintiff instituted an action for divorce in Geary county, Kansas, and it was pending until a short time before the instant action was brought.
The answer denied that any fraud or duress was practiced on plaintiff in connection with the making of the settlement, and alleged that plaintiff knew all about the taxes due on the land, but that if her allegations with reference to the fraud were true she was estopped from relying on this fraud because she did not promptly repudiate the contract, but with full knowledge of all the facts, took possession of the property and received the benefits.
The reply was a general denial.
The trial court made findings of fact to the general effect that the parties had lived'in Kingman county and that plaintiff and the three children were established in Manhattan in August, 1940, and that defendant called upon plaintiff and the children there on October 12, .1940, and defendant made the memorandum referred to in the petition as exhibit B. When the contract was entered into on October 12, 1940, the defendant was very aggressive and fully dominated the situation; that at the same time defendant had counsel draw his will, which he .executed, leaving all his property to his wife; that about December 20,1940, defendant advised plaintiff that he wanted a divorce; that when the contract was signed October 12, 1940, plaintiff was unduly influenced by the defendant and signed it under the domination of the defendant without knowledge or advice as to the effect of the agreement and will of the defendant; that counsel who prepared the instruments was advised by both parties that they were not being drawn in contemplation of separation or divorce; that the provisions made for the plaintiff in the property agreement did not equal in value one-fourth of the fair and reasonable value of all the property owned by the parties at that time, and as to the plaintiff the property agreement is unjust and unfair and was not mutually'entered into between the parties as a.final adjustment of their property rights nor in contemplation of separation or divorce; that defendant tqld plaintiff he was giving her the two Gray county quarters because they were the only unencumbered real estate he then owned and there were unpaid taxes against this land, and that thereafter plaintiff filed an amended petition in a divorce action then pending in Geary county in which she set up the tax liens and alleged fraud in the procuring of the property settlement and failure of defendant to pay plaintiff the $1,500 which he had agreed to pay her; that plaintiff later dismissed the Geary county action.
The court further found that in June, 1941, defendant sent word to plaintiff that the plaintiff should look after the harvest on the Gray county land; that plaintiff did go to Gray county and look after the harvest .and took a landlord’s share of the crop raised on this land and appropriated it to her own use, and on August 30 she redeemed one of the Gray county quarters from the years 1932 and subsequent thereto in the amount of $296.10; that on November 25, 1941, the net worth of the real estate owned by the parties was $7,600 and the net value of the personal property was $1,400; that plaintiff had received property worth $300.
The court concluded as a matter of law that the plaintiff was entitled to retain the two quarters that had been conveyed to her, and the household goods and other property taken with her to Manhattan and to the sum of $1,800 to equalize values, which should be paid to her by defendant on or before January 1, 1943, and until paid should be a lien upon the home farm in Eingman county; that defendant should pay to plaintiff as alimony the sum of $600, payable in installments of $50 per month, and $30 a month for the support of the children until the further order of the court.
Defendant filed a. motion to modify and set aside the findings and conclusions and to make different findings, whereupon the court made additional findings to the effect that while plaintiff was in Gray county looking after the land and the harvest thereon she was not only looking after the land which had been deeded to her by the defendant, but was looking after all of the land owned by plaintiff and defendant for the common good of both parties and their children; that the $1,500 mentioned in plaintiff’.s exhibit '2, as set out in finding No. 6 herein, was promised plaintiff by defendant from the proceeds of certain cattle which defendant expected to sell. He asked that said $1,500 not be in the contract, plaintiff’s exhibit A, because he did not know when he would sell the cattle. Plaintiff did not know when he would sell the cattle. Plaintiff did not learn of the sale or disposal of the cattle and certain other property until in July after her return from Gray county.
Defendant filed a motion- to set these findings aside and for a new trial. These motions were overruled and judgment was entered in accordance with the conclusions of law. Hence this appeal.
Defendant argues that the trial court had only to determine 'whether to construe the contract as a surrender of only the plaintiff’s right of inheritance. If so construed to allow her to keep the property deeded to her and still grant alimony and property division, or if not so construed to set the whole settlement aside because of duress alleged and make a new property settlement and grant alimony. Defendant argues that the court failed to construe the contract but set it aside because it was unjust and inequitable and was procured under duress and fraud. He argues that if the court set the contract aside because it was unjust and inequitable such conclusion was not within the issues. He argues that plaintiff made no such claim. He then argues that if the court set it aside on account of duress and fraud such a .conclusion was at complete variance with the evidence and in disregard of plaintiff’s ratification.-
The petition' alleged that the contract should be set aside because defendant threatened, coerced, tormented and harassed the plaintiff and threatened bodily harm, and that he represented to her that the real estate he conveyed to her was clear when as a matter of fact it was encumbered.
The answer denied these allegations expressly. The court found that the defendant fully dominated the situation when the contract was signed; that plaintiff was unduly influenced; that the settlement was unjust and unfair and was not mutually agreed upon as a settlement of property rights, and that defendant told plaintiff that the land she was getting was not encumbered when as a matter of fact it was. There was substantial evidence to support these findings. It would add nothing to this opinion to set out that evidence here.
The rule as laid down in 30 C. J. 1060 is as follows:
“It must appear that the husband exercised the utmost good faith; that there was a full disclosure of all material facts, including the husband’s circumstances and any other fact which might affect the terms of the contract; and that the provisions made in the agreement for the wife are fair, reasonable, just, equitable, and adequate in view of the conditions and circumstances of the parties at the time, that is, in view of the property of the husband, the needs of the wife, and their station in life.”
See, also, note at page 823 of 5 A. L. R.
An examination of the findings of fact by the court in this case indicates that the surrounding facts and circumstances, the, position of the parties, and the fact that most of their property'had been accumulated during the time that they were married, were all considered. It appears that the husband was given the home farm, which was the most valuable piece of real estate they owned, while the wife was allowed to retain the two other farms that the husband had conveyed to her and was given $1,800 besides'. It was necessary' that she have this $1,800 in order to make her share of the joint property more nearly equitable.
In view of what has been said with reference to this contract and the allegations of the pleadings we find it unnecessary to examine the other points that are raised in the brief of the appellant.
The judgment of the trial court is 'affirmed. | [
-16,
120,
-44,
108,
-118,
-32,
42,
-71,
122,
-87,
-89,
83,
-19,
66,
20,
105,
-29,
41,
64,
106,
67,
-13,
22,
0,
-10,
-77,
-15,
-35,
-79,
-51,
-11,
-42,
76,
32,
66,
-43,
102,
-102,
-49,
16,
78,
-79,
-119,
101,
-39,
-64,
52,
99,
86,
13,
85,
-49,
-13,
44,
57,
66,
44,
46,
91,
57,
-64,
-72,
-114,
-124,
95,
11,
-111,
7,
-98,
-28,
72,
10,
-104,
49,
8,
-24,
115,
-74,
-106,
116,
75,
-69,
8,
50,
98,
0,
-43,
-1,
-40,
-104,
14,
126,
-115,
-90,
-41,
88,
18,
96,
-66,
-99,
125,
16,
-121,
118,
-18,
5,
28,
108,
12,
-53,
-42,
-79,
-114,
124,
-102,
11,
-21,
-94,
33,
112,
-53,
34,
92,
99,
57,
-101,
-49,
-32
] |
The opinion of the court was delivered by
Thiele, J.:
Heretofore this court had before it for consideration the liability of the plaintiff company, and others covered by stipulation, for the payment of a tax upon “considerations received for annuity contracts” under G. S. 1935, 40-252, it being held generally that such “considerations” were taxable. See Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 114 P. 2d 871. In the opinion then filed, the court made no findings or conclusions as to the amount of taxes due, it being there said:
“The court prefers to leave the matter of the amount of taxes plaintiff is required to pay to a separate action, and the court will retain jurisdiction of the case for that purpose.” (p. 13.)
In what is hereafter said' the words “tax” or “taxes” refer to the tax on the annuity contracts mentioned and for which the companies shall be liable under G. S. 1935, 40-252, which became effective in June, 1927.
For the years 1927 to 1934, both inclusive, the companies made returns during the following years and the commissioner of insurance assessed a tax (not here involved) which was paid. In 1936 the question arose concerning the tax upon annuity considerations, and, on May 25, 1936, the commissioner, acting upon information furnished by the companies on his demand, determined amounts which it was claimed were due for the several years mentioned for the tax here involved. For each succeeding year, the amount was determined as the annual reports and returns were made.
After our decision above noted was filed, the companies and the commissioner of insurance could not agree as to the amount of taxes due or the formula for computation, and the plaintiff then filed its application for an order adjudicating a definite basis of tax liability and proposing a basis. The commissioner of insurance filed his motion, answer and application, in which he moved the court to strike plaintiff’s application for the alleged reason the matter was settled by a stipulation entered into and filed before trial of the action, objected to the basis proposed by plaintiff, and proposed the companies were liable for each and every year involved with interest on the amounts allegedly due from 1927 to 1935 from date of the demand made on May 25, 1936, etc.
We have given consideration to the commissioner’s contention the matter was settled by the stipulation mentioned. No purpose will be served by setting forth the provisions of the stipulation, nor stating reasons. We have concluded the contention is not good and cannot be sustained. •
In substance three questions are involved. Are the companies liable for taxes on annuity considerations for the years 1927 to 1934, both inclusive, no tax having been assessed and no demand having been made until May, 1936? Are the companies liable for interest after tax was assessed? Are the companies entitled to deduct from premiums paid during a particular year any refunds of the consideration paid on cash refund annuity contracts?
The statute under which the tax is imposed (G. S. 1935, 40-252) provides that every insurance company doing business in this state shall pay taxes specified, and as here applicable provides that a company organized under the laws of another state shall, as a condition precedent to the issuance of the annual certificate of authority, pay a tax upon all premiums' received at the rate of two percent per annum, with a proviso that in the computation of gross premiums, the company shall be entitled to deduct therefrom any premiums returned on account of cancellation, etc. The concluding portion of the section reads:
“For the purposes of insuring the collection of the tax upon premiums as set out in subsection B hereof, every insurance company or association shall at the time it files its annual statement, as required by the provisions of section 40-225, make a return, verified by affidavits of its president and secretary or other chief officers, to the commissioner of insurance, stating the amount of all premiums received by the companies in this state, whether in cash or notes, during the year ending on the thirty-first day of December next preceding. Upon the receipt of such returns the commissioner of insurance shall verify the same and assess the taxes upon such companies or associations on the basis and at the rate provided herein and such taxes shall thereupon become due and payable.”
Section 40-225, referred to in the quotation above, provides that every company doing business in this state shall annually, on January 1 or within sixty days thereafter, file with the commissioner of insurance a statement of its condition as of December 31, upon a form to be furnished by the commissioner; that it shall be the duty of the commissioner to furnish the forms required for such report, and that he may at any time address any proper inquiries to any company in relation to its condition or any matter connected with its transactions, and that each company shall promptly reply in writing to such inquiries, the reply to be verified if the commis-' sioner so requires.
Under section 40-226 every company which fails to make and file its annual return or to reply to any proper inquiry of the commissioner is subject to heavy penalties.
With respect to liability for tax for the years 1927 to 1934, both inclusive, for each of which years the assessment would be made in the following year, the companies contend generally that annual reports and returns were duly made which the commissioner annually, verified and made assessments of tax (not including that now involved), which assessments were paid; that the tax is a privilege tax and is due only upon return, verification and assessment; that the whole matter of taxation is statutory and means for collection of delinquent tax do not exist apart from statute, that there is no statute, and the commissioner in 1936 was without statutory power or authority to review reports and returns prior to those for the year 1935, and to make any further or additional assessments: The substance of the commissioner’s contention is the tax is a privir lege tax determinable from the reports and returns of the companies; that the returns as made did not include the considerations received for annuity contracts; that the state is not estopped by any inaction, procrastination or del^y on the part of the commissioner in asserting liability for the tax; that the statute is unambiguous and places a burden on the companies to make the returns and pay the tax; that the provision of the statute, the commissioner shall verify' the return and assess the tax, is directory to establish the amount due, fixes the time only when the tax is due and does not fix the obligation, and that upon its being discovered from the returns as made and as supplemented thereafter by information required by the commissioner, there had been a failure by the companies to pay in full, demand might be made for the delinquent portion.
We deem it unnecessary to discuss in detail the many questions suggested by the above contentions and to review all of the decisions and authorities mentioned in the briefs.
It may be observed here that there is no contention the companies acted in bad faith in making their returns for taxation or that such returns were made to defraud. Rather the controversy arose from construction of the statute, as our original opinion discloses.
The tax upon insurance companies under the statute is in the nature of a privilege or franchise tax. (Pacific Mutual Life Ins. Co. v. Hobbs, 152 Kan. 230, syl. ¶ 2, 103 P. 2d 854.)
We think it clear from the statutes above mentioned that a company doing business in this state is obligated not only to make and file its verified return for taxation, but its annual return and answers to such proper inquiries as the commissioner shall require. That these were fully made is assumed, for there is no claim to the contrary. That the information in the tax returns was verified from the above annual reports and furnished information, also seems a fair assumption, for the claimed delinquency is based on inquiries later made. After the tax return for any particular year was verified, the commissioner assessed the tax which thereupon became due and payable. Under those circumstances we, think it may not be said the amount of the tax was determined by the return alone. It was determined from the return as verified by the commissioner and by his assessment. The statutes provide a method for the ascertainment and assessment of the tax annually. There is no provision of statute that permits the commissioner to resurvey returns previously made and upon which an assessment has been made and paid. It has been held repeatedly that in this state the whole matter of taxation, including levy and collection of taxes, is statutory and does not exist apart from statute. See Sarver v. Sarver Oil Co., 141 Kan. 246, 248, 40 P. 2d 394, and cases cited; Bachman-Wise Motor Co. v. Comanche County, 143 Kan. 346, 349, 54 P. 2d 965; State, ex rel., v. Smith, 144 Kan. 570, 571, 61 P. 2d 897; and Rittenoure Inv. Co. v. Birney, 150 Kan. 684, 687, 95 P. 2d 299.
Especially in the absence of any charge of fraud or bad faith, we think that in May, 1936, the commissioner of insurance was without power or authority to reopen and review the assessments made for the years 1927 to 1934, both inclusive. The return covering 1935 was not made until in 1936, and as to it and subsequent years, there is no controversy respecting his action.
The question of interest on annual assessment of taxes will be disposed of briefly, for the principal contention thereon pertained to the years 1927 to 1934. Under the statute the tax is due and payable upon assessment being made. It is a tax in the nature of a franchise or privilege tax. The statute is silent as to the method of collection. We are of opinion that under the reasoning of State, ex rel., v. Snell, 127 Kan. 859, 275 Pac. 209; Sarver v. Sarver Oil Co., supra, and City of Independence v. Hindenach, 144 Kan. 414, 61 P. 2d 124, an action would lie as for debt, and therefore under the provisions of G. S. 1935, 41-101, the amount of taxes found due and payable would bear interest at six percent per annum from the date of assessment.
The -question of the right to deduct from premiums paid during ,a particular year any refunds of the consideration on cash refund annuity contracts is limited to that class of contracts, and not to all contracts for annuities. In the original hearing this court held that the considerations paid for such contracts were premiums under the act above mentioned providing for the tax. If the payments made were premiums for assessing tax, the portion not retained by the company but returned to the policyholder or the person designated by him was a proper item for deduction under the reasoning and holding in State, ex rel., v. Wilson, 102 Kan. 752, 172 Pac. 41.
The parties are directed to make settlement consistent with the views herein expressed. | [
-16,
126,
-43,
61,
8,
96,
58,
-40,
125,
-96,
39,
115,
125,
-34,
-124,
125,
89,
59,
80,
74,
-41,
-89,
51,
11,
-41,
-109,
-15,
-43,
-79,
-49,
46,
86,
68,
49,
-118,
-11,
-26,
-54,
-63,
-102,
70,
12,
-120,
-31,
-7,
66,
48,
95,
80,
75,
113,
-53,
-89,
40,
-102,
-53,
105,
40,
89,
33,
-32,
-32,
-82,
-123,
127,
2,
51,
4,
-104,
97,
72,
4,
-104,
19,
8,
-24,
121,
-90,
-42,
116,
105,
41,
0,
102,
99,
32,
97,
-17,
-44,
-104,
46,
-9,
13,
-75,
22,
-40,
-109,
15,
-74,
-99,
101,
80,
6,
126,
-28,
20,
31,
-28,
17,
-114,
-42,
-77,
-19,
-26,
24,
3,
-2,
-125,
48,
112,
-114,
-90,
93,
71,
58,
-109,
-121,
-52
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for wages under the act of congress known as the “Fair Labor Standards Act of 1938.” Judgment was for the defendant, striking the second amended petition of plaintiff from the files. The plaintiff appeals.
‘ On account of the argument made by the plaintiff it will be necessary to point out fully the allegations in the pleadings filed by plaintiff.
The petition alleged that the defendant was a corporation and that it was engaged in interstate commerce, its particular business being commerce, and that it came within the provisions of the act of congress known as the “Fair Labor Standards Act of 1938,” and that the plaintiff was employed by defendant as a telephone switchboard operator. The petition then alleged that the plaintiff, as well as other persons, was required by defendant to work more than the maximum hours per week, as provided in that act, and that she was paid less than the minimum wages as provided in that act. The amount claimed for the overtime she worked during each week was then set out week by week from October 26, 1938, to August. 6,1939. The total was set out in the amount of $194.92, The petition then alleged that plaintiff was entitled to recover that amount with in terest at the rate of six percent from August 9, 1939, and an additional amount of $194.92 as liquidated damages, together with her costs and attorney’s fees. The petition then alleged that since June 25, 1938, the defendant had operated a number of telephone exchanges and employed several hundred persons whose situation was similar to that of plaintiff and because of the nature and importance •of the questions and the large amount of work the plaintiff was entitled to an attorney’s fee in the amount of at least $1,000. Judgment was prayed in accordance with the allegations of the petition. That petition was filed on July 21, 1941. On July 23, 1941, an amended petition was filed. In the amended petition the plaintiff alleged that under the authority of the act, to which reference has been made, the suit was brought in her own behalf and in behalf of •other persons similarly situated, also that the other persons were required to work more than the maximum number of hours and were paid less than the minimum wages; that the plaintiff did not know and could not state the exact amount due such other persons was $20,000. The petition also alleged that she should be allowed an attorney’s fee of $2,000 rather than $1,000. The prayer was for the same amount as the first petition, with the exception that it asked an attorney’s fee of $2,000 and that the amount due each of the ■other persons similarly situated be determined by the court and awarded -as wages and liquidated damages.
On August 4, 1941, the plaintiff filed an application for appointment of a commissioner to take depositions of certain named officers of the defendant corporation. The interrogatories were attached to this application. They were designed to ascertain what persons had been employed by the defendant as switchboard operators between the dates given, their addresses and the amount paid them. Apparently this was an effort on the part of plaintiff to ascertain who the individuals were which, she had alleged in her petition, were similarly situated.
This record does not disclose whether the court approved the application for the appointment of a commissioner or whether the interrogatories were answered.
On September 28,1941, one Kneely Farley, without leave of court, application to intervene or any other proceeding, filed a motion for judgment. She alleged in addition to the allegations of the petition that she worked as a switchboard operator for the defendant between certain dates and that during such times she established con nections by means of the switchboard of the defendant for transmission of interstate messages; that during each week she was permitted to work 112 hours; that she had been paid only $40 a month for this work, or a total of $380; that the defendant had refused to pay her the minimum wage of twenty-five cents an hour with pay for one and one-half hours for each hour overtime above forty-four hours per week; that defendant was required to pay her for the time she worked $1,498.50; that it had paid her $380—hence, there was due her $1,118.50 as wages, and the same amount as liquidated damages, and a reasonable attorney’s fee.
On October 24, 1941, plaintiff, without leave of court, application to intervene or any other proceeding, filed another motion for judgment on behalf of Blanch Bally and thirty-eight other persons, naming them. This motion did not go into detail as to the amount due Blanch Bally and thirty-eight others but asked for the amount due them under the “Fair Labor Standards Act of 1938” and alleged that each was employed by defendant corporation as a switchboard operator.
On September 15,1941, defendant filed a demurrer to the amended petition of the plaintiff for the reason that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant.
Before referring to the second amended petition so that the reader may keep the story in mind we shall now refer to some of the provisions of the “Fair Labor Standards Act of 1938.” It provides, in part, as follows:
“Fair Labor Standards Act of 1938
“(a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates: . . .” (29 U. S. C. A. 206, 52 U. S. Stat. 1062.)
“(b) Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent -jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” (29 U. S. C. A. 216, 52 U. S. Stat. 1069.)
It will be noted that section 206 makes the act applicable only to employees who are engaged in commerce or in the production of goods for commerce. Thus it is necessary in order for an employee to recover under the act for the employee to allege and prove that he, the employee, was engaged in commerce or in the production of goods for commerce, the theory of this being that many companies which are engaged in commerce might have employees who were not engaged in commerce. Keeping this in mind, attention should be paid to the fact that the petition and amended petition alleged that the defendant was engaged in interstate commerce and that the plaintiff was employed by defendant as a telephone switchboard operator.
The demurrer was filed upon the theory that this did not constitute an allegation that the plaintiff was engaged in interstate commerce since it would be possible for a switchboard operator to work at that employment and still not handle any interstate messages.
At any rate, after the motions for judgment and the demurrer to which reference has just been made had been filed, the plaintiff saw fit to file a second amended petition. This second amended petition made the amended petition a part thereof and made the further allegation that the defendant was engaged in the transmission of interstate messages and that the plaintiff was employed by defendant as' a switchboard operator, and as a part of such work established connections for the transmission of interstate messages by means of defendant’s switchboard, and was employed by defendant in commerce as defined in the “Fair Labor Standards Act of 1938;” that defendant knew the names of each person who had worked as a switchboard operator during the months and during the time involved and had those records under its control. Leave of court was granted for the filing of this second amended petition on September 30, 1941. That was more than ten days after the filing of the general demurrer, which was filed on September 15, 1941. It should be noted that the second motion for judgment, to which reference has been made, was filed on October 24, 1941, or after the filing of the second amended petition.
The defendant filed a motion to strike the second amended petition on the ground that in her amended petition she sought to recover wages and damages alleged to be due her because she was employed as a telephone switchboard operator, and the defendant was engaged in interstate commerce, and that in her second amended petition she had included the amended petition as a part, but-alleged that the defendant was engaged in the transmission of messages in the nature of interstate messages, and that the plaintiff in the course of her employment established such connections; that the-amended petition did not state, a cause of action of which the court had jurisdiction, and the second amended petition attempted to set up a new and different cause of action from that attempted to have-been stated in the amended petition and changed substantially the claim of plaintiff, as alleged in the amended petition. This motion to strike was sustained on November 14, 1941. The appeal is from that order.
Plaintiff argues that she filed her second amended petition under the provisions of G. S. 1935, 60-756. .That section reads as follows:
“The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such, amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition.”
Plaintiff points out that no answer had been filed when this-amendment was made and contends that under such circumstances she had a right to amend her petition without leave. She concedes that no notice of this amendment was served' upon the defendant or his attorney, but contends that since her failure to do'so was not raised by the defendant on its motion to strike the point was waived.
This argument of the plaintiff overlooks the provisions of G. S'. 1935, 60-757. That section reads as follows:
“At any time within ten days after the demurrer is filed the adverse party may amend of course, on payment of costs since filing the defective pleading. Notice of the filing of an amended pleading shall be forthwith served upon the other party or his attorney, who shall have the same time thereafter to answer or reply thereto as to an original pleading.”
It' will be noted that the above section applies to the situation we-have here, that is, a demurrer was on file. More than ten days had elapsed since the filing of this demurrer, so the provision of the above statute giving the plaintiff the right to amend as a matter of course did not govern this case, nor did G. S. 1935, 60-756, govern it.
There remains the provisions of G. S. 1935, 60-759. That section reads as follows:
“The court or judge may, before or after judgment, in furtherance' of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform in any respect to the provisions of this code, the court or judge may permit the same to be made conformable thereto by amendment.”
This section gives trial courts the authority to allow amendments to pleadings in the furtherance of justice and on such terms as the court may deem proper. This is the only section providing for an amendment when more than ten days have elapsed after the filing of a demurrer or when an answer is on file.
Such an amendment is addressed to the sound discretion of the trial court. In Fire Ins. Co. v. Amick, 37 Kan. 73, 14 Pac. 454, the defendant requested leave of the court to amend its answer in an action on a fire insurance policy setting up some new matter. This request was made after the plaintiff had introduced part of her evidence. The trial court denied this request. The request to amend was made pursuant to section 139 of the code of civil procedure in effect at the time. This section is now G. S. 1935, 60-759. This court said:
“Of course, under § 139 of the civil code, the court may in any case, in furtherance of justice, and on such terms as may be proper, permit a party to amend his pleadings by inserting other allegations material to the case, when such amendment does not change substantially the1 claim or defense; but the amendment, in any case and at any time, can be made only 'in furtherance of justice,’ and it must be affirmatively shown that the amendment is in furtherance of justice. No such showing was made in the present case.” (p. 74.)
In Long v. Railroad Co., 100 Kan. 361, 164 Pac. 175, the defendant requested permission to amend its answer by verifying it so as' to put in issue a matter of agency. The trial court denied the request. On appeal this court said:
“Even if the verification of the answer had been material, it was within the sound discretion of the court to permit the answer to be verified at the time the application was made. . . . There was no reversible error in refusing to permit the verification of the answer.” (p. 362.)
In Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259, the answer of the defendants had been on file about six months. Shortly before the trial defendants asked leave to file an amended answer. The amendment was offered, but the trial court refused permission to file it. On appeal this was urged as error. This court said:
“It has been repeatedly held that the allowance or refusal of applications to file amended pleadings is within the sound discretion of the trial court.” (p. 195.)
To the same effect is Bank v. Badders, 96 Kan. 533, 152 Pac. 651, also Sheldon v. Board of Education, 134 Kan. 135, 4 P. 2d 430.
Before a judgment will be reversed on account of refusal of a trial court to permit an amendment of a pleading there must be an affirmative showing that there was an abuse of discretion.
The second amended petition was filed in this action without notice to the defendant. It is true that the judge of the trial court gave the plaintiff leave to file the second amended petition, but the record does not disclose that the allegations of the pleading were called to the attenion of the court. The first time this was done was when the motion to strike the second amended petition was filed. The trial court then had an opportunity to review the many rather unusual steps that had been taken by plaintiff in this litigation. The action had been filed by the plaintiff on her own behalf, then amended next day in an attempt to plead a class action. The remarkable procedure of the filing of the motion to take interrogatories was more for the benefit of counsel for plaintiff than for plaintiff because apparently he did not know until the interrogatories were answered who the other parties were for whom he was bringing the action. The trial court, no doubt, had its attention called to the motions for judgment which, had been filed wherein a money judgment was asked in behalf of new parties with no leave to intervene having been asked nor any notice having been served on the defendant as to the claim of these parties. Then finally the trial court had called to its attention that the new facts pleaded in the second amended petition had been known to plaintiff and her counsel from the beginning of the litigation. We do not find it necessary to pass upon the question of how the action in behalf of the other parties should have been brought. All these facts and circumstances, however, were proper to be considered by the trial court in the exercise of its discretion as to whether the confused state of the record was such that it was not in the furtherance of justice to overrule the motion to strike the second amended petition. We hold that the trial court did not abuse its discretion.
The judgment of the trial court is affirmed.
Hoch, J., not participating. | [
-16,
122,
-16,
-19,
-118,
96,
42,
-102,
123,
-63,
-89,
83,
-23,
71,
12,
113,
115,
45,
80,
106,
-25,
-93,
22,
107,
-6,
-13,
-13,
-43,
-67,
79,
-12,
124,
76,
48,
66,
-43,
102,
-46,
-59,
60,
-34,
5,
73,
-23,
-7,
96,
48,
123,
-14,
79,
53,
-34,
-13,
44,
-100,
74,
40,
47,
123,
42,
-64,
-15,
-126,
-115,
125,
19,
49,
101,
-98,
-123,
-56,
12,
-120,
53,
-128,
-55,
114,
-74,
-122,
52,
103,
-71,
8,
34,
98,
-112,
-43,
99,
-8,
-100,
38,
126,
-99,
-92,
19,
88,
11,
-60,
-66,
-100,
108,
16,
7,
22,
-2,
21,
95,
108,
73,
-113,
-74,
-77,
-113,
-26,
-100,
-117,
-21,
-93,
16,
97,
-38,
42,
94,
71,
107,
-101,
-113,
-116
] |
The opinion of the court was delivered by
Thiele, J.:
This was a proceeding for a writ of habeas corpus. The district court denied the petitioner’s application, and he has appealed.
• It may first be noted that in this court the appellee has filed a motion that the appeal be dismissed for the asserted reason the appellant is not being held by reason of the commitments of which he complains, but by reason of a previous commitment. It is not made to appear that any such showing was made in the trial court or considered by it, and we therefore consider the appeal only on the record presented by the appellant.
In his petition for the writ of habeas corpus the appellant alleged he was being held by virtue of three commitments, one for robbery in the first degree, one for highway robbery and one for assault with intent to kill. In the abstract of the record a copy of the first commitment is not included, but from the copies of the other two commitments it appears that on April 6, 1929, appellant was sentenced to the penitentiary for first-degree robbery for a term of 2 (evidently 20) to 42 years. The other two commitments show appellant was sentenced to the penitentiary for life. To avoid repetition we shall take up and discuss seriatim appellant’s contentions why his detention under the several commitments is illegal.
With respect to the first commitment, and as has been noted, on April 6, 1929, appellant was sentenced for the crime of first-degree robbery. His petition discloses this was a second offense and a second conviction. He contends that under R. S. 21-107 his sentence should have been for 21 years/ There is no showing he was sentenced under the statute on which he relies. The section on which appellant relies had been a part of our crimes act since before statehood. (See Acts of 1859, ch. 28, § 278; G. S. 1868, ch. 31, § 289.) But in 1937 it was specifically repealed by section one of chapter 209 of the Laws of 1937. The substance of the section was that on a second conviction of a felony, if the offense were such that on a first conviction the offender could be punished for a limited term of years, the punishment should be for the longest term prescribed upon conviction of the first offense. Later the legislature, by Laws 1903, chapter 375 (G. S. 1935, 62-1521 et seq.), enacted the indeterminate-sentence law affecting length of sentence for all felonies except murder and treason, the act being held constitutional in State v. Stephenson, 69 Kan. 405, 76 Pac. 905. Under its provisions sentence is imposed for a term not exceeding the maximum nor less than the minimum term provided for the crime for which the person was convicted. In 1927 the legislature passed an act .providing additional penalties for second and third convictions. (Laws 1927, ch. 191, now appearing as G. S. 1935, 21-107a.) Under this act a person convicted a second time of felony shall be confined not less than double the time of the first conviction. In State v. Close, 130 Kan. 497, 287 Pac. 599, this statute was construed, and it was held the legislature intended to increase the punishment imposed by doubling the punishment which would have been imposed had the convict been a first offender. The punishment for robbery in the first degree is not less than 10 nor more than 21 years (G. S. 1935, 21-530). The record affirmatively discloses appellant was convicted a second time of felony and his sentence was properly fixed at from 20 to 42 years, under the provisions of G. S. 1935, 21-107a.
With respect to the second commitment, we are advised by the respondent’s motion to dismiss that a corrected commitment was issued, but as it does not appear to have been presented to the trial court we shall consider the matter only as shown in the abstract, which discloses that on March 16, 1932, appellant was convicted of and committed for the crime of “highway robbery.” Appellant contends no such offense is denounced in our crimes act. For our purposes here, we shall assume he is correct, and that on the commitment, as shown in his abstract, his detention is unlawful.
With respect to the third commitment we note the following: The record as abstracted discloses that on March 16, 1932, appellant pleaded guilty to a charge of assault with intent to kill; that on September 23, 1924, he had been sentenced to the Kansas state reformatory for assault, and on April 6, 1929, he had been sentenced to the Kansas penitentiary for first degree robbery, and that he should be confined “in penitentiary of Kansas habitual criminal Sec. 21-107 RS for the period of life.” Appellant directs our attention to the statute cited and contends that as the punishment for the crime is from six months to five years (G. S. 1935, 21-435) on his conviction of felony a second time, the greatest sentence he could lawfully receive under R. S. 21-107 would be ten years. It appears from the record that appellant was not sentenced under the statute mentioned in the commitment and on which he relies, but that on the contrary he was sentenced under the so-called habitual criminal statute, to which reference has already been made and which provides “if convicted a third time of felony, he shall be confined in the penitentiary during his life.” (G. S. 1935, 21-107a.) The statements as to two previous convictions for felony and the sentence for life cannot be subordinated to the obviously wrong reference to a section of the crimes act, which served no useful place in the commitment and must be treated as surplusage.
Appellant also contends that his detention is unlawful because his commitment was not signed by the judge of the trial court. That is not required by our code of criminal procedure. In substance it is provided that when a convict has been sentenced the clerk shall deliver a certified copy thereof to the sheriff, who shall cause the convict to receive the punishment to which he was sentenced (G. S. 1935, 62-1518). Such showing as is here made is that this was done.
We have carefully read the abstract of the record as presented to the trial court, and find therefrom that no questions of fact but only of law were presented. We have also carefully read the two briefs filed in this court by the appellant which cover not only the questions of law presented by his petition for the writ of habeas corpus, but many matters extraneous thereto. We are convinced the trial court did not err in refusing to issue the writ prayed for, and its judgment is affirmed. | [
112,
-8,
117,
126,
26,
-32,
42,
-104,
89,
-93,
-27,
115,
-17,
-34,
0,
121,
95,
101,
85,
121,
-49,
-73,
119,
1,
-14,
-13,
-56,
-43,
51,
79,
-18,
116,
14,
48,
-118,
-15,
102,
-104,
-31,
92,
-50,
-123,
-71,
-59,
-47,
0,
52,
79,
70,
-113,
-15,
-98,
-29,
42,
26,
-62,
9,
45,
11,
61,
-64,
-71,
-123,
13,
105,
22,
-125,
6,
-99,
5,
-40,
38,
-100,
17,
1,
-8,
113,
-106,
-122,
52,
79,
27,
44,
38,
98,
32,
125,
-21,
-88,
-120,
46,
58,
-115,
-89,
-112,
80,
10,
69,
-106,
-67,
102,
-74,
38,
126,
100,
-124,
61,
110,
38,
-113,
-76,
-79,
77,
124,
-124,
-37,
-61,
33,
48,
117,
-115,
-94,
92,
-9,
123,
-101,
-113,
-34
] |
The opinion of the court was delivered by
Wedell, J.:
This is an appeal by a garnishee defendant from a judgment rendered against it and in favor of the principal defendant and the plaintiff in the garnishment action.
Before we can reach the merits of the appeal we are confronted with two motions of the plaintiff, appellee, to dismiss the appeal. The first motion is based upon the failure of appellant to abstract the record in conformity with the rules of this court. It is urged important testimony which supports the judgment is not abstracted. There is much to be said in support of the contention. We frequently have warned concerning the failure to abstract the record in conformity with the plain rules of this court. (Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919.) The abstract in the instant case at least would compel us to materially restrict the extent of our review.
The second motion to dismiss challenges appellant’s right to be heard on appeal with respect to any issue. We shall, therefore, first direct our attention to it. That motion pertains to the failure of appellant to serve notice of appeal on the principal defendant who appeared in the garnishment action, whose interests are adverse to those of the appellant and which interests appellant seeks to affect on appeal.
The facts pertinent to the second motion may be briefly stated as follows: The principal action was instituted by G. I. Protzman, administrator with will annexed of the estate of Charles Griffith, deceased, against Mary Palmer, to recover a personal judgment for moneys she owed to the estate of the decedent. Judgment was rendered against her in the sum of $5,000. Execution was issued thereon and returned unsatisfied. Garnishment proceedings thereafter were instituted in the same action against the appellant, Universal Credit Company, a corporation, of the state of Missouri. No question is raised with respect to any irregularity in the garnishment proceedings. Appellant’s answer denied it was indebted to Mary Palmer, the principal defendant, or that it had any property in its possession or under its control belonging to her or in which she had any interest. The plaintiff, appellee, pursuant to statute, elected to take issue with appellant on its answer. Mary Palmer, the principal defendant, appeared in the garnishment action in person. She was one of the principal witnesses with respect to the issue whether appellant was indebted to her as an individual or whether appellant was indebted to the Palmer Motor Company, a copartnership, or whether it was indebted to either of them. Appellant contended it owed Mary Palmer nothing as an individual and that if it owed anyone in this litigation, which it denied, it owed only the Palmer Motor Company, a copartnership, consisting of Mary Palmer, and her brother, B. D. Palmer, and that since plaintiff had obtained no judgment against the partnership, the action in garnishment must fail. Appellant also made other contentions which, however, need not be noted in connection with the motion to dismiss the appeal.
Upon the issue as to whom appellant owed, the trial court found in favor of the contentions of Mary Palmer and the appellee, namely, that appellant was indebted to Mary Palmer, an individual, in the sum of $4,880. Judgment was rendered directing appellant to pay that amount into the hands of the clerk of the district court and also directing the clerk to disburse the balance thereof, after deducting the costs of the garnishment action, to appellee. Erom that judgment the garnishee defendant has appealed without serving notice of appeal on the principal defendant, Mary Palmer. Was such notice necessary in order to entitle appellant to a review of the judgment?
As heretofore stated, Mary Palmer appeared in the garnishment action. Her interests were then and are now adverse to those of the appellant. It was expressly found and adjudged that appellant owed Mary Palmer, an individual, $4,880. In order for appellant to prevail In this court it is necessary that it succeed in setting aside that finding and in reversing that portion of the judgment. That is precisely what appellant seeks to do in the instant appeal. If appellant succeeds, it will owe Mary Palmer, an individual, nothing. Moreover, if appellant succeeds, the judgment of appellee against Mary Palmer will not be discharged. Manifestly, her rights would be materially affected by a reversal of the judgment. Can her judgment rights be thus modified or extinguished by this court without notice to her that appellant will seek to affect those rights by an appeal? We do not think so.
The pertinent portion of G. S. 1935, 60-3306, reads:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court, and if the appeal is taken from only a part of the judgment, or from a particular order or decision, then by stating from what part of the judgment, or from what particular order or decision the appeal is taken. A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . .”
Appellant appealed from the entire judgment. It therefore appealed not only from that part of the judgment against*it which was in favor of the plaintiff, appellee, but it appealed also from that part of the judgment which was rendered in favor of the principal defendant, Mary Palmer, whereby it was determined that appellant was indebted to her in the sum of $4,880. Manifestly, appellant was first obliged to reverse the judgment rendered against it and in favor of Mary Palmer, before it could reverse the judgment against it and in favor of the appellee.
Mary Palmer, under the circumstances narrated, was an adverse party, within the meaning of the appeal statute (Peoples State Bank v. Hoisington Mercantile Ass'n, 118 Kan. 61, 234 Pac. 71; Lebanon State Bank v. Finch, 137 Kan. 114, 118, 19 P. 2d 709; Habegger v. Skalla, 140 Kan. 166, 167, 34 P. 2d 113; White v. Central Mutual Ins. Co., 149 Kan. 610, 614, 88 P. 2d 1041), and her rights could not be affected on review without the necessary notice of appeal.
The question presented, as disclosed by the above cases, is not a new one in this state. In White v. Central Mutual Ins. Co., supra, it was held:
“An adverse party in a civil action on whom notice of appeal must be served (under G. S. 1935, 60-3306) is a party to the litigation, to whose interest it is that the judgment of the trial court be upheld, and who is interested in opposing the relief sought by appellant', following Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, 234 Pac. 71.” (Syl. ¶ 1.)
The appeal must be dismissed. Having reached this conclusion', it is unnecessary to discuss further the' first motion to dismiss the appeal by reason of failure to file a sufficient abstract.
In view of the fact that the appeal must be dismissed, it manifestly would be inappropriate to discuss the merits of appellant’s contentions. In passing, however, we may state that a review of such record as is presented convinces us that the judgment would have to be affirmed if the appeal were considered on its merits. The appeal will be dismissed. It is so ordered.
Hoch, J., not participating. | [
-16,
-20,
-3,
92,
-118,
-32,
32,
-102,
65,
-111,
-73,
83,
-81,
-61,
4,
121,
126,
57,
116,
107,
-63,
-73,
23,
73,
-14,
-14,
-47,
84,
-75,
94,
-28,
-42,
76,
48,
42,
-43,
102,
-110,
-63,
22,
-114,
6,
-120,
-20,
-7,
-49,
48,
59,
22,
9,
-15,
-114,
-29,
45,
25,
66,
-23,
44,
-5,
-67,
112,
-72,
-117,
-121,
127,
19,
51,
20,
-100,
7,
-40,
-86,
-112,
48,
3,
-32,
114,
-74,
-122,
84,
107,
-101,
40,
118,
98,
35,
36,
-23,
-104,
-104,
46,
95,
-99,
-89,
-101,
120,
9,
41,
-73,
-99,
125,
66,
-121,
-4,
-18,
-123,
31,
108,
3,
-113,
-46,
-79,
11,
124,
26,
11,
-25,
-89,
18,
113,
-51,
-96,
92,
71,
59,
-101,
-50,
-112
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action to recover death benefits under an accident insurance policy. There were two trials in the district court, at the first of which the Hon. J. T. Cooper presided as judge, and his death having intervened, the second was before his successor, the Hon. LeRoy Bradfield. At the first trial defendant’s demurrer to plaintiff’s evidence was overruled, and the defendant having elected to stand on its demurrer, the cause was submitted to a jury which returned á verdict in favor of the plaintiff. Thereafter, the defendant’s motion for a new trial was allowed. At the second trial it was stipulated a jury should be waived and the cause submitted’ upon the transcript of the record of the first trial. After argument the trial court took the matter under advisement, and thereafter it sustained defendant’s demurrer to plaintiff’s evidence and rendered judgment against plaintiff for costs.
Plaintiff appeals, assigning as error the ruling on the demurrer, and the rendition of judgment against her. In view of what transpired, we may treat the matter as though the defendant’s demurrer had been sustained when first interposed.
For our purposes the pleadings may be very much summarized. Plaintiff alleged she was the widow of Arthur N. Broyles, and named as beneficiary of any death benefits under an accident insurance policy issued by the defendant; that she notified defendant of injuries received by her husband on December 24, 1935, and of his death on December 29, 1935; that she furnished proofs of his death, and on February 26, 1936, the defendant notified her of its refusal to pay. These allegations are admitted by defendant’s answer. Defendant’s answer denied allegations of the petition that on the late afternoon of December 24, 1935, two daughters of plaintiff found Arthur N. Broyles on the floor of his place of business with a fractured skull; that he was taken to a hospital and there died on December 29,1935; that the injury was not self-inflicted, but was accidental; that she was not present when Arthur N. Broyles received the injury and that the exact nature and manner thereof was unknown to her. In addition to the above admissions and denials, the answer alleged the death of Arthur N. Broyles was due to murder and to injuries intentionally inflicted by others.
Only two paragraphs of the accident insurance policy need be noticed. The indemnity provision is:
“. . . against the results of bodily injury hereinafter mentioned, effected solely through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident alone and independent of all other causes.”
Under the heading of “Exemptions,” it is provided there shall be no liability—
. . to any person for any benefit for death resulting from murder or disappearance, injuries intentionally inflicted by others, resulting in death.”
In view of the rule respecting test of sufficiency of evidence as against a demurrer (see, e. g., Shoup v. First Nat’l Bank, 145 Kan. 971, 975, 67 P. 2d 569; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; Trezise v. State Highway Comm., 150 Kan. 845, 96 P. 2d 637) we limit our review of plaintiff’s evidence to that tending to make out a prima facie case under the rules hereafter mentioned. Margery L. Broyles testified that she was the daughter of Arthur N. Broyles, who was manager' of a produce house in Chanute, and that she drove the family car for him and assisted him most of the day on December 24, 1935, because he was having trouble with a stiff leg. About four o’clock p. m. she went uptown and then home. About five o’clock she and her sister Barbara returned. Barbara got out of the car, went to the office door and returned and witness then went to the door. The door was locked. She saw her father lying on the floor and blood around his head. The sisters went home, talked with their mother, called the hospital for an ambulance, telephoned for a taxicab, and the mother and daughters went to the produce house. The cab driver broke the glass on the door and unlocked the door. The father was lying on the floor; he was not able to talk to anyone. He was put in the ambulance and taken to the hospital, where he remained until his death on December 29. During the times she was at the hospital he was unconscious and unable to talk. Her testimony concerning the fixtures in the office, their location, location of doors and windows, etc., need not be repeated.
Barbara Lee Broyles testified to about the same effect as did her sister with respect to finding the father, and that he died on December 29.
R. C. Gibson, brother-in-law of plaintiff, testified concerning the layout of the office; that he visited Arthur N. Broyles at the hospital the night he died, at which time his head was bandaged, and that after death he saw him at an undertaking parlor and the bandages had been removed. He was asked to describe the condition of deceased’s head, and on objection being made there was colloquy between court and counsel, during which plaintiff’s counsel mentioned the policy required proof of external evidence of injury, whereupon defendant’s counsel said:
“We have nothing like that here, nor plead in our pleadings at all.”
The trial court, in a memorandum opinion, after reviewing the evidence, concluded that any determination that death resulted from the injuries must be based on a presumption, and that a person knowing the facts would naturally conclude death resulted from the injuries, but that conclusion must be based upon a presumption; that the evidence was silent as to how the injuries were received and there was no evidence showing the death resulted from violent, external and accidental means, and in order to find for plaintiff, death from accidental means must be presumed. It concluded that a presumption could not be based on a presumption, and in view of the decision in McKenzie v. New York Life Ins. Co., 153 Kan. 439, 112 P. 2d 86, the demurrer must be sustained.
Preliminary to a discussion of the sufficiency of the evidence as against a demurrer', attention is directed to the provisions of the accident insurance policy heretofore mentioned. The burden was on the plaintiff, to prove that the insured met his death as the result of bodily injuries effected solely through external, violent and accidental means, occasioned by the accident alone and independent of all other causes, and of that burden we shall treat later.
On the other hand, the burden of proof was on the defendant .to prove its exemption from liability because the death may have resulted from murder or from injuries intentionally inflicted by others. (See Lamb v. Liberty Life Ins. Co., 129 Kan. 234, 282 Pac. 699, and cases cited.) It was therefore not incumbent on the plaintiff to prove the death was not caused by one or more of specific things covered by the exemption provisions of the policy.
Insofar as plaintiff’s proof is concerned, certain presumptions applicable are to be noted. First, there is a presumption that no sane person commits suicide. See Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996, 35 L. R. A. 258; Railroad Co. v. Hill, 57 Kan. 139, 45 Pac. 581; 22 C. J. 94. Second, the presumption as to the cause of decedent’s death is against murder. (Warner v. U. S. Mutual Acc. Assoc., 8 Utah 431, 32 Pac. 696; Travellers’ Insurance Co. v. McConkey, 127 U. S. 661, 32 L. Ed. 308, 8 S. Ct. 1360; Lampkin v. Travelers’ Ins. Co., 11 Colo. App. 249, 52 Pac. 1040.)
Passing for the moment the question whether the injuries caused the death, we shall consider whether they were effected solely by external, violent and accidental means. There can be no doubt the proof was ample they were external and violent. Did plaintiff prove they were accidental? The general rule, as stated in 29 Am. Jur. 1082 (Insurance, § 1443), is:
“Generally speaking, one seeking to recover on a policy of insurance has the burden of proving a loss from causes within the terms of the policy. . . . In this respect, the authorities support the general rule that in an action on a policy insuring against death caused solely by external, violent, and accidental means, the burden of proof is on the plaintiff to show from all the evidence that the death of the insured was the result of accidental as well as external and violent means, but that where death by unexplained, violent, and external means is established, a presumption is thereby created or prima facie proof is thereby made of the fact that the injuries were accidental, without direct and positive testimony on that point, since the law will not presume that the injuries were inflicted intentionally by the deceased or by some other person.”
See, also, 29 Am. Jur. 732 (Insurance, § 972). Also see notes in 20 A. L. R. 1123, 57 A. L. R. 972, and 116 A. L. R. 396, where many cases supporting the above quotation may Re found. And we are not without authority of our own. In McCullough v. Liberty Life Ins. Co., 125 Kan. 324, 264 Pac. 65, 57 A. L. R. 963, it was held:
“Ordinarily where one person intentionally injures another without misconduct on the part of the latter, and unforeseen by him, such injury as to the latter is accidental.
“And where an accident insurance policy provided for payment in the event the insured should sustain bodily injury directly and independently of any other cause, through external, violent and purely accidental means, the killing of the assured by a third person, though intentional, is deemed accidental within the meaning of the policy if the killing was not brought about by the agency of the assured.” (Syl. ¶¶ 1, 2.)
See, also, Spence v. Equitable Life Assurance Soc., 146 Kan. 216, 69 P. 2d 713.
Under the aboye authorities, there is ho question but that there ,was a prima facie showing the injuries received by the insured were accidental.
Did the injuries cause the death? We agree with the trial court that—
“A person knowing all the facts revealed by the evidence in the case would presume or conclude naturally that the death resulted from the injuries.”
It is true no medical doctor testified that the injuries which the insured had sustained at the time he was found caused his death. When plaintiff sought to show the injuries were violent and external defendant’s counsel objected, stating:
“We have nothing like that here, nor plead in our pleadings at all.”
But beyond that the evidence showed that the insured was found with his head in a pool of blood, was then unconscious, was taken to a hospital where he so remained; that his head was bandaged and that after four days he died. We think a prima facie showing was made as to cause of death.
The trial court was of opinion the plaintiff was relying upon a presumption based on a presumption. We think not. It is to be noted that oh occasion a distinction is drawn between presumptions and inferences, although often the words are used synonymously. See 20 Am. Jur. 165; note 95 A. L. R. 162; and Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101. We shall not attempt to draw the line of distinction between the two words.
It has been held that presumptions based on- presumptions are insufficient to meet the burden of proof resting on the pleader. (22 C. J. 84; 20 Am. Jur. 168.) What is condemned is to draw an inference or presumption, and then base another inference or presumption on the one so drawn, for in such case the ultimate fact sought to be proved rests on conjecture. (See, e. g., Railway Co. v. Baumgartner, 74 Kan. 148, 85 Pac. 822; and McKenzie v. New York Life Ins. Co., 153 Kan. 439, 112 p. 2d 86.) The rule above is not to be applied, however, where different inferences are made from an admitted or proven fact or state of facts. As was said in Krug v. Mutual Life Ins. Co. of New York, (Mo. App.) 149 S. W. 2d 393:
“There is another rule of long standing that has not been modified in any way and that is that as many inferences may be drawn from a fact, or a state of facts, as it will justify, so long as each has a factual foundation. Morris v. E. I. Dupont de Nemours & Co., 341 Mo. 821, 822, 109 S. W. 2d 1222. These inferences are referred to as ‘concurrent’ ones in the Wills case, 345 Mo. 616, 134 S. W. 2d loe. cit. 129.” (p. 400.)
See, also, Morris v. Indianapolis, etc., R. Co., 10 Ill. App. 389; Employers Liability Assur. Corporation v. Mills, (Tex. Civ. App.) 81 S. W. 2d 1028.
In the case at bar it is true a presumption is indulged that the insured’s injuries were accidentally received. The only other necessary element of plaintiff’s proof that could be said to rest on presumption or inference was that the injuriés caused death. Conceding that to be true, it did not rest on presumption of accident. Presumption of cause of death arose not from whether the injuries were purposely or accidentally inflicted, but from the proven fact the deceased received the injuries. The two presumptions arose out of the same facts, they were concurrent, and one did not rest or depend upon the other.
Appellant asks not only that we reverse the ruling of the trial court on the defendant’s demurrer to her evidence, but that we enter judgment in her favor for the amount of the benefits due under the policy, with interest, and for attorney’s fees. It is true that at the first trial a verdict was directed. The record as abstracted does not disclose that any judgment was entered, but that a new trial was granted. At the second trial it was stipulated the record at the first trial should constitute the evidence, and on that record, the trial court sustained defendant’s demurrer. The fact its ruling may have been erroneous does not now entitle plaintiff to judgment. Under the decisions heretofore mentioned, the demurrer having been overruled, the defendant may prove, if it can, that the exceptions included in the exemption clause of the policy apply.
The ruling of the trial court on the demurrer and its judgment in favor of the defendant are reversed and the cause is remanded with instructions to vacate the judgment and to overrule the demurrer.
Hoch, J., not participating.
Wedell, J., not sitting. | [
-16,
108,
-108,
-114,
8,
-29,
40,
-54,
86,
-96,
-91,
83,
-85,
-33,
65,
45,
91,
13,
84,
107,
-9,
-93,
23,
3,
-45,
-13,
-5,
-59,
-112,
-51,
-74,
-2,
76,
48,
-54,
85,
-26,
-54,
-59,
30,
-50,
4,
-87,
-11,
-39,
26,
48,
119,
-12,
23,
81,
14,
-93,
43,
23,
-61,
40,
44,
91,
-79,
-48,
-79,
-118,
5,
-1,
3,
-77,
38,
-104,
-93,
-40,
14,
-104,
49,
0,
-8,
112,
-90,
-106,
52,
97,
-119,
12,
102,
103,
16,
21,
-19,
-88,
-104,
39,
-74,
13,
-90,
90,
112,
24,
12,
-106,
-67,
115,
84,
-122,
116,
-4,
86,
92,
40,
13,
-113,
-74,
-79,
-17,
108,
-100,
-125,
-29,
-115,
48,
117,
-51,
-94,
93,
71,
95,
-109,
23,
-90
] |
The opinion of the court was delivered by
Dawson, C. J.:
This was an action for damages for injuries sustained in a collision in a Dodge City street between a panel truck in which plaintiff was riding and defendant’s farm, truck which was parked at the side of the street. The National Mutual Casualty Company was impleaded as defendant because it had executed to the owner of the farm truck the indemnifying insurance policy required by the statute to enable him to operate his truck as a licensed private carrier.
The pertinent facts were these: Defendant L. J. Clark resided in Toronto- in Woodson county. He held a state license to operate his farm truck as a private carrier. On or about May 17, 1940, he loaded his truck with fence posts, intending to haul them to Greens-burg and dispose of them at that point. Accompanied by his minor son and another boy, he set out for Greensburg, which is about 200 miles west of Toronto-. At Haviland, about 18 miles east of Greens-burg, he effected a sale and disposal of his fence posts.
Dodge City is about 68 miles west of Haviland, and a rodeo was being held there about that time. Defendant having no immediate trucking business in contemplation, determined to attend the.Dodge City rodeo before returning to his home in Woodson county, so he and the two boys drove on through Greensburg to Dodge City, arriving there in the evening. He parked his truck on “Second street.” It runs north and south; it is about 45 feet wide, and is part of the state and federal highways, Nos. 283 and 45. Defendant’s truck was parked close to the east curb of the .street, facing north, and was left there during the night without parking lights. There were street lamps of 100 candle power on both sides of the street. These were set on lamp posts 12 feet high and spaced 80 feet apart. But Dodge City had no ordinance excusing compliance with the statutory requirement that parked trucks must have lights. (G. S. 1941 Supp. 8-586.)
On the same night the plaintiff was the guest of one Bernard Shea, who took her in his employer’s panel truck to a place called the Avalon club at some distance south of the Arkansas river which flows eastward through Dodge City. Shea had imbibed a few “jiggers” of whiskey that day and night, and between one and two o’clock a. m. he left the Avalon club to take plaintiff to her home in the city. The night- was dark and very rainy; he drove at 25 miles per hour, at which rate he could have stopped his truck in 40 feet; he could have seen defendant’s unlighted truck at 15 feet distance, but did not see it until about 5 feet from it. A collision resulted and plaintiff was severely injured.
Hence this lawsuit for damages which plaintiff instituted in Ford county.
Service of summons on defendant insurance carrier was made in Ford county, and the principal defendant, L. J. Clark, was served by process forwarded to the sheriff of Woodson county, where he resided. Defendant Clark by special appearance filed a motion to set aside the service of summons on the ground that the district court of Ford county had no jurisdiction of his pérson. The defendant casualty company filed a demurrer to plaintiff’s petition on the ground that two causes of action had been improperly joined.
This motion and the demurrer were overruled and the defendants filed separate answers, to which the plaintiff filed replies, after which the cause was tried to a jury which answered certain special questions and returned a verdict in favor of plaintiff.
The usual post trial motions were filed and overruled and judgment was entered on the verdict.
Both defendants appeal, with the usual assignments of error, but the controlling question relates to the trial court’s ruling that at the time and in the circumstances of the collision the defendant’s truck was being incidentally used in his business as a licensed private carrier. If so, the insurance carrier was properly joined as a coclefendant in the action. (G. S. 1935, 66-1,128; Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918; Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557; Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583.) On the other hand, if the principal defendant was not engaged directly or incidentally in the pursuit of his business as a licensed carrier, then under the terms of the policy issued by the defendant» casualty company its liability was merely one of an indemnitor, and it could only be subjected to a judgment, if at all, when a judgment had been obtained against the principal defendant. (Smith v. Republic Underwriters, 152 Kan. 305, 308, 103 P. 2d 858; Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276; Farm Bureau Mut. Automobile Ins. Co. v. Daniel, 104 F. 2d 477; Commercial Standard Ins. Co. v. Foster, 31 F. Supp. 873; same case on appeal, 121 F. 2d. 117.) The insurance policy did contain a coverage provision relating to the use of defendant’s truck for its “occasional use for personal pleasure, family and other purposes,” but this feature is irrelevant in this appeal.
The trial court held as a matter of law that defendant’s truck was being incidentally used in his business as a licensed private carrier at the time and place of the collision, and in consequence the defendant casualty company which had furnished his statutory bond could be impleaded and subjected to judgment in the first instance.
We agree with the trial court that since the evidence as to the purpose of defendant in driving his empty truck from Haviland to Dodge City was clear and undisputed, the question whether that purpose was incidentally related to his business as a private carrier was one of law. But we are unable to say that this question of law was correctly decided. To sustain that decision counsel for appellee argue that the trip from Haviland to Dodge City, a distance of some 50 miles beyond his originally planned destination, Greensburg, and some 68 miles beyond Haviland, where he disposed of his load of fence posts, was merely incidental to his planned trip as a private carrier from Toronto to Greensburg—that the journey in the empty truck to Dodge City to enable defendant and his two youthful com panions to attend the rodeo was merely an incidental deviation from his business trip as a trucker from Toronto to Haviland and Greens-burg.
It seems to us that this contention is so transparently fallacious that it needs only to be stated to be condemned. We may grant that if the accident had occurred on an incidental deviation from the direct route from Toronto to Greensburg, as at Hutchinson where defendant did spend one night en route to his contemplated destination, the statutory liability which the insurance carrier had undertaken would bind the defendant. That was an incidental deviation. But in our view it completely overworks the expression “incidental deviation” to say that a journey of 50 or 60 miles beyond the destination of defendant’s contemplated business trip was a mere incidental deviation, when that additional journey was undertaken for purely personal reasons in no way related to his business as a licensed carrier.
The result is that the defendant casualty company’s contract obligation, if any, was one of indemnity and not one of primary liability. It was expressly stated in the conditions of the policy that—¡
“No action shall lie against the company . . . until the amount of the insured’s obligation to pay shall 'have been finally determined ... by judgment against the insured after actual trial, . .. .”
It follows that the service of summons -on the principal defendant in Woodson county on process issued by the district court-of Ford county should have been quashed on defendant’s timely motion to that effect. In King v. Ingels, 121 Kan. 790, 250 Pac. 306, it was said:
“It is elementary law that a plaintiff cannot ordinarily get an unwilling adversary into court without valid personal service upon him In the jurisdiction in which the action is begun, nor can he-accomplish that end by joining as defendant some mere nominal party upon whom personal service can be .had in that jurisdiction when the plaintiff has in fact no bona fide cause of action against the defendant so nominally joined. (Citations.)” (p. 792.)
This conclusion will necessitate that the judgment against both -defendants be reversed, and the other errors raised by appellants require no attention. The cause is therefore remanded with instructions to set aside its judgment and to dismiss the action. It is so ordered. | [
-16,
106,
-15,
61,
26,
104,
26,
-86,
95,
-95,
37,
83,
-23,
-50,
13,
105,
-17,
29,
85,
122,
-27,
-73,
19,
99,
-46,
83,
-85,
-60,
-110,
73,
44,
-42,
76,
112,
-54,
85,
-90,
72,
-59,
28,
-50,
-124,
-69,
-24,
89,
2,
60,
104,
98,
15,
53,
-113,
-29,
46,
28,
-61,
41,
44,
-53,
-96,
-63,
113,
-54,
7,
127,
6,
33,
68,
-104,
1,
104,
26,
-112,
49,
-24,
-8,
115,
-90,
-122,
-12,
41,
-103,
12,
38,
103,
9,
29,
-49,
-20,
-104,
14,
118,
-115,
-90,
-72,
16,
19,
1,
-73,
-99,
105,
48,
14,
-6,
-3,
77,
31,
104,
7,
-49,
-76,
-79,
-59,
48,
-108,
21,
-29,
-89,
54,
117,
-57,
-26,
77,
69,
114,
-101,
-121,
-48
] |
The opinion of the court was delivered by
Luckert, J.:
On petition for review, the defendants in this medical malpractice case seek reversal of the Court of Appeals’ determinations that the trial court erred by instructing the jury on intervening cause, the error was not harmless, the jury verdict rendered in the defendants’ favor must be vacated, and the case remanded for retrial. See Puckett v. Mt. Carmel Reg. Med. Center, No. 97,971, unpublished opinion filed September 19, 2008. We affirm the Court of Appeals’ decision, reverse the jury verdict, and remand the case with directions for a new trial.
Factual and Procedural Background
On June 15, 2002, Ronald E. Puckett sought treatment for severe back pain at the emergency room of Mt. Carmel Regional Medical Center (Mt. Carmel) in Pittsburg, Kansas. Ronald was seen by Dr. Ronald Seglie, who examined him and prescribed pain medication and a muscle relaxer.
Four days later, Ronald still had pain in his lower back and was also running a fever. He sought treatment at a clinic operated by Mt. Carmel where he was treated by Barbara Deruy, an advanced registered nurse practitioner (A.R.N.P.), who worked at the clinic under a collaborative practice agreement that required a supervising physician be within 50 miles. Nurse Deruy had previously treated Ronald for chronic back pain when she worked for his family doctor. When Ronald arrived at the clinic, Nurse Deruy noted that Ronald was moving very slowly and with great difficulty. Ronald indicated he had been running a fever that morning, but his chief complaint was the back pain. He had taken some medication containing acetaminophen before seeing Nurse Deruy and did not have a fever at the time of his visit. Nurse Deruy observed Ronald’s reddened ears and throat, as well as nasal congestion, which she attributed to a viral infection, and made a differential diagnosis of low back pain and a viral syndrome. Nurse Deruy changed Ronald’s prescription muscle relaxant and told him to report to the emergency room if his symptoms got worse.
Ronald’s symptoms did worsen over the next 2 days; he became confused and disoriented. On June 21, 2002, he was transported by ambulance to Hospital District No. 1 (Girard Hospital), was admitted, and was placed in the intensive care unit under the treatment of Dr. Adam Paoni, a board-certified physician in the area of family practice. Following a regimen of antibiotics to treat a urinary tract bacterial infection, Ronald initially improved. Unfortunately, his condition soon deteriorated and he developed respiratory distress. On June 23, 2002, Dr. Paoni transferred Ronald to St. John’s Hospital (St. John’s) in Joplin, Missouri, a larger “tertiary care” facility, where he could receive more specialized care, including long-term respiratory assistance, for sepsis that had developed from the bacterial infection.
At St. John’s, Ronald was placed under the care of Dr. Habib Munshi, a physician board certified in the areas of pulmonary diseases, critical care medicine, and sleep disorders. Dr. Munshi de scribed Ronald’s status as “in extremis ,” meaning his whole system was severely unstable, the situation was “very critical,” and he was at considerable risk of dying. Dr. Munshi stated at trial that considering the fact that Ronald “had several days of treatment and he still was in this situation, his prognosis for recovery was not veiy good.” Ronald’s white blood cefl count was high, his heart rate was elevated, and he had severe respiratory problems. Dr. Munshi had to choose a method of providing respiratory assistance. He treated Ronald’s respiratory distress with a bilevel positive air pressure (BiPAP) face mask rather than a ventilator, since he believed Ronald’s medical condition was too perilous to attempt the intubation required if a ventilator was utilized. Dr. Munshi testified that Ronald had no contraindication to the use of the BiPAP mask.
On the morning of June 25, 2002, Dr. Munshi visited Ronald, who remained critically ill. For medical reasons and patient comfort, Dr. Munshi ordered the temporary removal of the BiPAP mask and the use of an oxygen mask. While the BiPAP mask was removed, Ronald sat up in bed and ate some breakfast. After approximately 3 hours, Ronald was placed back on the BiPAP mask. Soon thereafter Ronald went into cardiac arrest. Ronald had stopped breathing after having vomited and aspirated. His cardiac and pulmonary functions were restored, but he never fully regained consciousness.
Ronald died on August 6,2002. The death certificate listed Ronald’s cause of death as “anoxic encephalopathy,” which basically means “there was a disease process of the brain that . . . resulted from lack of oxygen to the brain.” Significant conditions listed as contributing to his death were sepsis, diabetes, and respiratory failure. At trial, Dr. Munshi opined that despite Ronald’s receiving low oxygen, he would have expected him to recover but because of “underlying primary insults” — severe sepsis and major organ failure — his “coding” was “part of the underlying process.”
Susan E. Puckett, the widow and special administrator of Ronald’s estate, brought wrongful death and survivor actions against Mt. Carmel, Nurse Deruy (Mt. Carmel and Nurse Deruy will be referred to collectively as Nurse Deruy), and Dr. Paoni on the basis of medical malpractice. Susan alleged that Nurse Deruy was neg ligent in (1) failing to properly diagnose and treat Ronald’s urinary tract infection that developed into sepsis after going untreated; (2) failing to obtain and review Ronald’s medical chart; (3) failing to order a complete blood count and urinalysis; (4) failing to obtain a proper history; and (5) practicing outside her specialty. Susan alleged that Dr. Paoni was negligent in (1) failing to realize the severity of Ronald’s condition; (2) failing to realize Ronald was having, or was at risk of having, multiple-system organ failure that could not be treated at Girard Hospital; and (3) failing to timely transfer Ronald to a facility where he could receive more specialized care.
In response, both Nurse Deruy and Dr. Paoni denied individual fault and raised the affirmative defense of comparative fault between the parties and Dr. Munshi. They alleged that Dr. Munshi, who is not a Kansas resident and is not a party to this lawsuit, was at fault for placing Ronald on the BiPAP mask instead of a ventilator. More specifically, they claimed Dr. Munshi failed to provide ventilation with a secure airway, resulting in Ronald’s vomiting, aspirating, and cardiac arrest that led to his death. In the alternative, Nurse Demy and Dr. Paoni claimed there was a superseding, intervening cause, which they now characterize as the “aspirating event,” that relieved them of any liability.
The trial became a battle of the experts. Dueling opinions were admitted regarding whether Nurse Demy and Dr. Paoni violated their respective standards of care and also whether Dr. Munshi was negligent. In addition, many of the experts offered opinions relating to causation, some suggesting Nurse Deruy’s and Dr. Paoni’s negligence caused or exacerbated Ronald’s sepsis and others suggesting the severity of his illness was not the result of their actions or inactions. Primarily, the various defense expert opinions related to two of the defense theories — that Nurse Deray and Dr. Paoni did not deviate from their applicable standards of care and that any negligence was attributable to Dr. Munshi or, at least, his negligence had to be compared to the negligence of Nurse Demy and Dr. Paoni, if any. Other opinions related to Nurse Demy’s and Dr. Paoni’s final theory of defense, i.e., whether a superseding, intervening event caused Susan’s damages.
As to the intervening cause defense, Ronald’s treating physician at the time of death testified that Ronald’s aspiration caused his anoxic brain injuiy and cardiac arrest. Plaintiff s expert, Dr. Larry Rumans, gave similar testimony. In addition, Nurse Deruy’s and Dr. Paoni’s experts focused on the aspiration event as the cause of death. For example, one of Dr. Paoni’s expert’s, Dr. David Mc-Kinsey, opined that Ronald’s death “resulted from complications of aspiration” and “the reason he aspirated is he had a whole lot of fluid in his stomach and I can’t blame that on the sepsis.” Dr. McKinsey further opined that had Ronald not aspirated at St. John’s, it was more likely than not he would have survived.
Another defense expert, Dr. Wade Williams — board certified in the areas of internal, pulmonary, and critical care medicine — • opined that Dr. Paoni’s treatment of Ronald met the applicable standard of care but Dr. Munshi’s did not. Specifically, in his opinion, Dr. Munshi should have intubated Ronald and placed him on a ventilator. Dr. Williams addressed causation as well, observing it was foreseeable that a patient with sepsis would need respiratory assistance. Nevertheless, Dr. Munshi had a choice of using a positive air pressure (PAP) device or intubation and, although PAP is used “quite often,” it was not an appropriate treatment for Ronald, in Dr. Williams’ opinion. Dr. Williams believed it was “fairly unlikely” that Ronald’s sepsis led to his vomiting and aspiration. Rather, Dr. Williams stated that the use of the BiPAP mask caused pressure resulting in gastric distention and vomiting. Dr. Williams thought Ronald would not have suffered brain injury and death if he had been placed on a ventilator; it was an “iatrogenic complication,” i.e., a medically induced complication, that ultimately resulted in Ronald’s cardiac arrest. Nevertheless, Dr. Williams also testified that the use of BiPAP treatment is fairly common and is also fairly common in situations where patients have eaten.
Based on the opinions regarding Dr. Munshi’s negligence in placing Ronald on the BiPAP mask and the causal relationship that decision had in Ronald’s death, Nurse Deruy and Dr. Paoni proposed both comparative negligence and intervening cause jury instructions. They contended the intervening cause instruction was proper because the jury could have found they were negligent and still have concluded that Ronald’s aspiration constituted an independent intervening cause, breaking the causal connection between Nurse Deruy’s and Dr. Paoni’s alleged negligence and Ronald’s death. Over Susan’s objection, the trial court instructed the jury on intervening cause, finding this was a case where “there could very well be an intervening cause[,] and that intervening cause is [that Ronald] aspirated in his mask due to the negligence of Dr. Munshi or not due to the negligence of Dr. Munshi.” The trial court further indicated that, in this case, foreseeability was a matter of law.
After brief deliberations, the jury returned a verdict in favor of Nurse Deruy and Dr. Paoni, and Susan appealed. She contended the trial court erred in instructing the jury, in the jury selection process, and in refusing to admit standard of care testimony from Nurse Deruy.
Court of Appeals
The Court of Appeals found error in the trial court’s decision to give an intervening cause instruction and found that error to be reversible. In reaching this conclusion, the Court of Appeals cited Kansas cases that indicate intervening cause cuts off liability for earlier negligence only in “extraordinary” cases. Puckett, slip op. at 9. The Court of Appeals noted that “[i]f the original actor reasonably should have foreseen the intervening act in light of the attendant circumstances, the original actor’s negligence remains a proximate cause of the injury. [Citation omitted.]” Puckett, slip op. at 9. Applying this principle, the Court of Appeals focused on the issue of whether Dr. Munshi’s alleged negligence was reasonably foreseeable by Nurse Deruy and Dr. Paoni.
Finding that the evidence established that respiratory problems commonly result from sepsis, the Court of Appeals concluded it was foreseeable that Ronald would develop respiratory difficulties if untreated. Also foreseeable was the fact that a later treating physician would elect the BiPAP mask among various methods in assisting Ronald. Given the extraordinary nature of an intervening cause case, the Court of Appeals examined the expert medical testimony to determine if the evidence showed that Dr. Munshi’s care of Ronald was not only negligent, but also “so beyond the pale that it would not be foreseeable by Ronald’s earlier medical providers.” Puckett, slip op. at 11. According to the Court of Appeals, there was expert testimony that Dr. Munshi breached the applicable standard of care; however, no defense expert opined that Dr. Mun-shi’s care was so deficient that it could not have been anticipated. Because there was “no evidence that Dr. Munshi’s actions were so extraordinaiy or unusual as to break the causal connection between the claimed negligence of Nurse Deruy and Dr. Paoni and Ronald’s eventual death,” the panel concluded that this was not a case of intervening cause. Puckett, slip op. at 11.
The Court of Appeals rejected Nurse Deruy’s and Dr. Paoni’s alternative argument that even if it was error to instruct the jury on intervening cause, the error was harmless because the jury found no fault on the part of either defendant. The Court of Appeals pointed out that the concept of an intervening cause had no bearing on the claims made in the survivor action. The survivor action dealt with the issue of injuries and damages suffered by Ronald before his transfer to Dr. Munshi’s care at St. John’s. Yet the verdict form failed to distinguish the survivor action (brought by Susan as administrator of Ronald’s estate) from the separate wrongful death action (brought by Susan as heir at law), and the parties failed to distinguish the separate claims of wrongful death and survivorship in their closing arguments.
With respect to the survivor action, the Court of Appeals observed that if the juiy found either Nurse Deruy or Dr. Paoni negligent but also found that the intervening negligence of Dr. Munshi broke the causal connection between the negligence and Ronald’s death, there was no way for the jury to enter a judgment in favor of Susan for any injuries or damages Ronald sustained before being transferred to St. John’s. Rather, the verdict form was set up so that the jury had to first answer whether either Nurse Deruy or Dr. Paoni was at fault, and only if the question was answered in the affirmative was the jury to proceed in comparing the fault of Nurse Deruy, Dr. Paoni, and Dr. Munshi. If the jury found there was an intervening cause, the jury would answer the first question in the negative, finding no fault on the part of either Nurse Demy or Dr. Paoni, and would not reach the issue of comparative fault. In fact, the jury did answer the first question in the negative.
With regard to the wrongful death claim, the Court of Appeals pointed out that the jury had to determine more than whether either Nurse Demy or Dr. Paoni deviated from the applicable standards of care; they also had to determine whether those deviations brought about Ronald’s death. Given that, the Court of Appeals emphasized there were three possible explanations for the jury’s no-fault finding:
“(1) Neither Deruy nor Dr. Paoni breached die applicable standard of care, (2) Deruy and/or Dr. Paoni breached the applicable standard of care but did not cause Ronald’s death, or (3) Deruy and Dr. Paoni breached the applicable standard of care but their fault was interrupted by the intervening negligence of Dr. Munshi who caused Ronald’s death.” Puckett, slip op. at 13.
Nurse Demy and Dr. Paoni argued that there was evidentiary support for explanations (1) and (2), so the jury could have resolved the case without considering the intervening cause instmction. But the Court of Appeals found it impossible to determine whether the juiy followed the intervening cause instmction when rendering its verdict or if the jury decided the case without reference to it. Con-sequendy, the Court of Appeals concluded that the trial court’s error in giving the intervening cause instruction was not harmless. Puckett, slip op. at 13-14.
Based on its ruling, the panel declared Susan’s remaining issues moot and reversed and remanded the case for a new trial. Puckett, slip op. at 14.
Petition For Review
Nurse Demy and Dr. Paoni filed petitions for review, arguing that the trial court properly gave an intervening cause instmction because they raised alternate theories of defense — no fault, comparative fault, and intervening cause — which were supported by the evidence and required presentation to the jury. They contend that the Court of Appeals’ decision essentially eliminates the possibility that a health care provider could ever simultaneously raise the alternate defense theories of comparative fault and intervening cause. In addition, Nurse Deruy and Dr. Paoni contend that the trial court did not err by giving a jury instruction on intervening cause because there was sufficient material evidence to support the intervening cause defense. They argue that in concluding the case did not fit the theory of an intervening cause and finding reversible error in the giving of an intervening cause instruction, the Court of Appeals failed to address one nuance of their intervening cause defense theory — specifically, that the aspiration event, triggered by nonnegligent actions of Dr. Munshi, was the intervening cause of Ronald’s death. Thus, Nurse Deruy and Dr. Paoni contend the Court of Appeals failed to “comprehend” their alternate defense theories and issued an erroneous decision. Nurse Deruy and Dr. Paoni also argue, in the alternative, that giving an intervening cause instruction in this case was harmless, if it was error.
Susan contends the alternative defense of nonnegligent intervening cause was not argued. The record reveals, however, that Nurse Deruy and Dr. Paoni raised three alternate theories of defense — no fault, comparative fault, and intervening cause — during the closing arguments, and the trial court recognized the intervening cause theory as being based on assertions of negligent conduct by Dr. Munshi and on nonnegligent conduct. We know this because the trial court, when ruling on Susan’s objection to the intervening cause instruction, stated, “[T]here could very well be an intervening causef,] and that intervening cause is [that Ronald] aspirated in his mask due to the negligence of Dr. Munshi or not due to the negligence of Dr. Munshi.”
Regardless, Susan also counters that the Court of Appeals correctly applied the law in finding there was no factual basis on which to give an intervening cause instruction. She urges this court to affirm the Court of Appeals’ decision.
This court’s jurisdiction arises from K.S.A. 20-3018(b).
Standard of Review
Two standards are implicated by the issues raised in our review of the Court of Appeals’ decision. The threshold standard is the one used by the trial court to determine whether a jury instruction should be given. The second standard applies to an appellate court’s review of the trial court’s decision regarding whether to give an instruction. In discussing these standards, the parties cite several versions, each supported by case law of this court.
Under one variation of the standard for a trial court’s determination of whether to give an instruction, some cases broadly indicate a court must instruct the jury on a party’s theory of the case. E.g., Wood v. Groh, 269 Kan. 420, 423, 7 P.3d 1163 (2000). Under another variation, this court has indicated an instruction is warranted only if the party’s theory is supported by evidence. Natalini v. Little, 278 Kan. 140, 146, 92 P.3d 567 (2004); Cox v. Lesko, 263 Kan. 805, 810, 953 P.2d 1033 (1998); Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991); Hunter v. Brand, 186 Kan. 415, 419, 350 P.2d 805 (1960). Similarly, it has been stated a trial court should give an instruction if a party’s theory is “supported by any competent evidence.” (Emphasis added.) Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976).
There is yet another variation that sets a slighdy higher eviden-tiary standard. Under this standard, a trial court must instruct on a party’s theory if “ ‘reasonable minds might reach different conclusions’ ” based on “ ‘the evidence and all inferences that may reasonably be drawn therefrom.’ ” Pizel v. Whalen, 252 Kan. 384, 387-88, 845 P.2d 37 (1993). In essence, the Pizel court applied a standard of whether judgment could be rendered on the issue as a matter of law, stating the evidence must be “ ‘accepted as' true and considered in the light most favorable’ ” to the party asserting the theory. Pizel, 252 Kan. at 388 (comparing to summary judgment standard). Such a standard is consistent with that for a motion for judgment as a matter of law (directed verdict), lending consistency to the trial court’s role in determining what issues should be presented to the jury. See K.S.A. 60-250 (judgment as a matter of law); Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007) (motion for judgment as a matter of law must be denied “ ‘ “[wjhere reasonable minds could reach different conclusions based on the evidence” ’ ”); cf. K.S.A. 22-3414(3) (instruction required in criminal case if there “is some evidence which would reasonably justify a conviction of some lesser included crime’’); State v. Anderson, 287 Kan. 325, 332-33, 197 P.3d 409 (2008) (duty to instruct on affirmative defense arises where there is evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory); State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 (2006) (same standard when lesser included offense requested).
As we consider these variations of the standard for giving an instruction on a party’s theory in a civil case, we conclude Pizel’s holding is a more complete and accurate statement. Pizel, 252 Kan. at 387-88. We, therefore, clarify the standard and hold that a trial court is required to give an instruction supporting a party’s theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.
The next question is: What standard applies when an appellate court reviews the trial court’s determination? The first consideration is whether there was an objection to the giving or failure to give an instruction. If there was not, the objection is waived unless the instruction is clearly erroneous. K.S.A. 60-251(b). Here, Susan made a timely and specific objection.
Given this determination, we turn to Cox, where this court cited Pizel in concluding an appellate court applies the same standard as a district court when considering whether an instruction should be given on a party’s theory of the case. Cox, 263 Kan. at 812 (citing Pizel, 252 Kan. at 388). The Cox court also stated: “Even though the evidence supports the giving of an instruction, such an instruction must accurately and fairly state the law as applied to the facts of the case. This is a question of law, and we have unlimited review over such matters.” Cox, 263 Kan. at 810-11.
We must apply these standards to the parties’ arguments which implicate questions of whether the intervening cause instruction fairly reflected the law and whether it should have been given under the facts of the case. We begin our discussion with the question of whether the instructions fairly reflected the law. In turn, this discussion will frame our consideration of whether the instruction should have been given under the facts of this case.
Law Related to Causation and Intervening Cause
In order to establish a claim based on medical malpractice, a plaintiff must establish: (1) The health care provider owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the health care provider breached this duty or deviated from the applicable standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the health care provider s breach of the standard of care. See Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008); Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008).
The focus of this appeal is the fourth element — proximate cause. Kansas follows the traditional concept of proximate cause, i.e., “[individuals are not responsible for all possible consequences of their negligence, but only those consequences that are probable according to ordinaiy and usual experience.” Hale, 287 Kan. at 322; accord Sly v. Board of Education, 213 Kan. 415, 424, 516 P.2d 895 (1973); Hickert v. Wright, 182 Kan. 100, 108, 319 P.2d 152 (1957). Kansas appellate courts have consistently defined “proximate cause” as that cause which “ ‘ “ ‘in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.’ ” ’ [Citation omitted.]” Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 499, 173 P.3d 642 (2007).
This traditional statement of proximate cause incorporates concepts that fall into two categories: causation in fact and legal causation. See, e.g., Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 655, 889 P.2d 1127 (1994); Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990). To prove causation in fact, a plaintiff must prove a cause-and-effect relationship between a defendant’s conduct and the plaintiff s loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant’s conduct, the plaintiffs injuries would not have occurred. See Baker v. City of Garden City, 240 Kan. 554, 559, 731 P.2d 278 (1987); Weymers v. Khera, 454 Mich. 639, 647-48, 563 N.W.2d 647 (1997); Waste Management v. South Central Bell, 15 S.W.3d 425, 430 (Tenn. App. 1997). To prove legal causation, the plaintiff must show that it was foreseeable that the defendant’s conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes were foreseeable. See Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). The concept of “intervening cause” relates to legal causation and “does not come into play until after causation in fact has been established.” Waste Management, 15 S.W.3d at 432; see also Prosser and Keeton, The Law of Torts § 44, p. 301 (5th ed. 1984) (recognizing the issue of intervening cause “does not arise until cause in fact is established”).
An intervening cause is “one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” Restatement (Second) of Torts § 441 (1964). An intervening cause absolves a defendant of liability only if it supersedes the defendant’s negligence. In other words, the superseding and intervening cause “component breaks the connection between the initial negligent act and the harm caused.” Hale, 287 Kan. at 324. But, one more factor — foreseeability—must be considered. “If the intervening cause is foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. [Citation omitted.]” Miller v. Zep Mfg. Co., 249 Kan. 34, 51, 815 P.2d 506 (1991).
All of these concepts are incorporated into the Pattern Instructions for Kansas (PIK), specifically PIK Civ. 4th 104.03, which was given in this case as Instruction 11:
“Instruction 11
“If an injury arises from two distinct causes which are independent and unrelated, then the causes are not concurrent. Consideration then must be given to the question of whether the causal connection between the conduct of the party responsible for the first cause and the injury was broken by the intervention of a new, independent cause which acting alone would have been sufficient to have caused the injury. If so, the person responsible for the first cause would not be at fault. If, however, the intervening cause was foreseen or should reasonably have been foreseen by the person responsible for the first cause, then such person’s conduct would be the cause of the injury, notwithstanding the intervening cause, and he or she would be at fault.”
See Tinkler v. United States by F.A.A., 982 F.2d 1456, 1467 (10th Cir. 1992) (citing PIK Civ. 2d 5.03 [now PIK Civ. 4th 104.03] as the proper standard in Kansas for determining when an intervening cause is a superseding cause).
The parties’ arguments do not attack these well-setded principles but raise questions about how these principles mesh with comparative negligence. Specifically, Nurse Deruy and Dr. Paoni argue the Court of Appeals’ analysis is contrary to comparative fault principles.
Intervening Cause and Comparative Negligence
First, Nurse Deruy and Dr. Paoni ask us to determine whether intervening cause — a common-law liability shifting device — continues to be valid when Kansas’ comparative negligence statute— another form of a liability shifting device — applies. They contend that the Court of Appeals’ decision alters these principles and, in effect, prohibits defendants from simultaneously raising the affirmative defense of intervening cause and the defense of comparative fault. We disagree with Nurse Deruy’s and Dr. Paoni’s proposition that the Court of Appeals established such a narrow rule of law. Instead, the Court of Appeals merely determined that the intervening cause doctrine did not apply under the facts of this case.
Moreover, in Hale, this court recently settled the question of whether the adoption of comparative negligence in Kansas rendered it unnecessary to determine whether a party’s negligence was the proximate cause of injuries to a plaintiff. In so doing, the court rejected the contention that the legal proceeding, without regard to proximate cause, determines the percentage of causation attributable to the various parties. Hale, 287 Kan. at 321-23. Further, tire Hale court rejected an expansive approach that would require a plaintiff to merely be able to prove that injury resulting from the defendant’s conduct was foreseeable and that the defendant’s conduct contributed to the injury. Such an approach, according to Hale, would greatly increase the number of potential defendants in negligence actions and the affiliated litigation costs. Hale, 287 Kan. at 323-24. Instead, the court reiterated that “ ‘[p]roximate cause is not an obsolete concept in Kansas law.’ [Citation omitted.]” Hale, 287 Kan. at 323. Finally, the Hale court concluded that “ ‘[intervening and superseding causes, which cut off liability for earlier negligence, are still recognized in extraordinary cases’ [Citation omitted.]” (Emphasis added.) Hale, 287 Kan. at 323; see also Godbee v. Dimick, 213 S.W.3d 865, 884 (Tenn. App. 2006) (“ ‘[T]he superseding cause doctrine can be reconciled with comparative negligence. Superseding cause operates to cut off the liability of an admittedly negligent defendant, and there is properly no apportionment of comparative fault where there is an absence of proximate causation.’ 1 T. Schoenbaum, Admiralty and Maritime Law § 5-3, pp. 165-166 [2d ed. 1994].”).
In addition, intervening cause survives the adoption of comparative negligence because nonnegligent conduct can be an intervening cause. For example, intentional tortious conduct, criminal acts of third parties, and forces of nature can be intervening causes. See, e.g., Llewellyn v. City of Knoxville, 33 Tenn. App. 632, 646-47, 232 S.W.2d 568 (1950) (“The intervening cause might be either a negligent or nonnegligent act of somebody else, an act of a child, a lunatic, or an act of God.”); see generally, Schlosser, Intervening-Cause Defense: Is It Still Viable Under Comparative Fault?, 42 Res Gestae 16, 19 (July 1998) (discussing cases involving intervening actions that were nonnegligent or were negligent but unforeseeable).
Kansas precedent, bolstered by persuasive authority from other jurisdictions, leads to the conclusion that the existence of comparative fault in our state does not automatically preclude a party from simultaneously raising the theory of intervening cause.
Fieser
Next, Nurse Deruy and Dr. Paoni raise a question about the interplay of Kansas law regarding foreseeability and comparative negligence. This question arises in the context of Nurse Deruy’s and Dr. Paoni’s argument that the Court of Appeals erred in relying on Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 39, 510 P.2d 145 (1973), which they argue was legislatively overturned by the adoption of comparative negligence.
The Court of Appeals relied on Fieser for the proposition that a tortfeasor who caused the initial injury is hable for “any additional bodily harm resulting from normal efforts of third parties in rendering aid which the injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.” Puckett, slip op. at 10. The holding in Fieser reflects Restatement (Second) of Torts § 457 (1964), which states:
“If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.”
The defendants argue this view cannot be reconciled with comparative negligence principles and, as they correctly observe, Fieser predates the 1974 adoption of Kansas’ comparative negligence statute, K.S.A. 60-258a; L. 1974, ch. 239, sec. 1. They further suggest that the more accurate statement under Kansas law, at least in comparative negligence cases, is reflected in PIK Civ. 4th 171.04, which reads:
“If plaintiff sustained personal injury as a result of defendant’s negligence, then plaintiff may recover damages from defendant for any additional harm which resulted from the efforts of (other persons) (a treating physician) to render aid to plaintiff, so long as those efforts were not performed in a negligent manner.”
The PIK committee’s Notes on Use indicate the pattern instruction was revised from the precomparative negligence version by removing any reference to negligent actions, making the original tortfeasor liable for damages by a subsequent treating physician only if the subsequent treatment was not negligent. The committee explained:
“Before the advent of comparative fault, a negligent party could be held hable for original injuries aggravated by subsequent medical treatment irrespective of whether that treatment was done in a proper manner. Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 510 P.2d 145 (1973), and Keown v. Young, 129 Kan. 563, 283 P. 511 (1930).
“Under comparative fault, all parties to an occurrence must have their fault determined in one action. Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867 (1978).
“In Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985), the Supreme Court applied the one-action rule to successive tortfeasors. Consequently it was necessary to limit this instruction to those situations wherein the additional harm was done in a non-negligent manner.” PIK Civil 4th 171.04, Comment.
See Dodge City Implement, Inc. v. Board of Barber County Comm’rs, 288 Kan. 619, 632-37, 205 P.3d 1265 (2009) (discussing one-action rule).
We agree with the PIK committee’s assessment that the adoption of comparative negligence requires a modification of the application of Restatement (Second) of Torts § 457 in cases where comparative negligence principles apply. But see State v. Mays, 277 Kan. 359, 378-81, 85 P.3d 1208 (2004) (although not citing Restatement § 457, applying same principles to hold it is not a defense to a charge of homicide that the alleged victim’s death was contributed to or caused by negligence of attending physicians). As applied in a medical malpractice case, this means a negligent health care provider cannot be held solely fiable for the negligent acts of subsequent treating health care providers whose negligence concurs in causing the injury. Rather, if the negligent actions of more than one health care provider combine to cause injury, the liability of the various health care providers must be allocated based on comparable fault. Any contrary language in Fieser, 212 Kan. 35, is disapproved and rejected.
Foreseeability
Nevertheless, the theoretical basis for Restatement § 457 — that the potential of negligence by subsequent treating health care providers is foreseeable — is not altered by the application of comparative negligence. This concept was recently discussed in Cramer v. Slater, 146 Idaho 868, 204 P.3d 508 (2009).
In Cramer, 146 Idaho at 874, the Idaho Supreme Court observed that Restatement § 457 “generally applies to any subsequent medical negligence which is necessary to correct an original act of medical negligence, thereby making acts of subsequent medical negligence generally foreseeable.” The court explained that in a comparative negligence situation, the Restatement rule should not be applied so as to impute liability arising from all subsequent negligent acts onto the original negligent actor. Instead, the concurring acts of negligence should be analyzed by the jury under the state’s comparative fault statute. But the court also noted that the concurring negligence does not relieve the original actor of all liability because the subsequent negligence is foreseeable. Cramer, 146 Idaho at 874-77; see Hickey v. Zezulka, 439 Mich. 408, 438, 487 N.W.2d 106 (1992) (“[W]here the defendant’s negligence consists in enhancing the likelihood that the intervening cause will occur, [citation omitted], or consists in a failure to protect the plaintiff against the very risk that occurs, [citation omitted], it cannot be said that the intervening cause was not reasonably foreseeable.”).
The reasoning of the Idaho Supreme Court’s Cramer decision is persuasive and consistent with other courts that generally view the negligence of subsequent health care providers as a concurring, rather than intervening, cause. The Virginia case of Williams v. Le, 276 Va. 161, 662 S.E.2d 73 (2008), illustrates. There, the administrator and personal representative of a patient who died from a pulmonary embolism brought a medical malpractice action against the radiologist who, after diagnosing the patient with deep vein thrombosis, did not make direct communication with the patient’s treating physician concerning the diagnosis. Instead, the radiologist only sent the physician a message via facsimile that contained test results showing the diagnosis, which the physician failed to read prior to the patient’s death.
One defense raised by the radiologist was that the subsequent negligence of the patient’s treating physician (in failing to check the diagnostic report) completely broke the chain of events between the radiologist’s negligence and the patient’s death. Based on that theory, the trial court gave an intervening cause instruction.
On appeal, the Virginia Supreme Court concluded that the trial court erred in giving the intervening cause instruction. The court pointed out that there may be more than one proximate cause of an event. In explaining that a subsequent proximate cause may or may not reheve a defendant of liability for his or her negligence, the court reiterated the following rule: “ Tn order to relieve .a defendant of liability for [a] negligent act, the negligence intervening between the defendant’s negligent act and the injury must so entirely supersede the operation of the defendant’s negligence that it alone, without any contributing negligence by the defendant in the slightest degree, causes the injury.’ [Citations omitted.]” Williams, 276 Va. at 167. Conversely, “ ‘an intervening cause does not operate to exempt a defendant from liability if that cause is put into operation by the defendant’s wrongful act or omission.’ [Citation omitted.]” Williams, 276 Va. at 167. The Williams court concluded that under the evidence in that case the radiologist had put the cause into operation because the communication problems began with his failure to make direct contact with the treating physician, a member of his team, or the patient. Williams, 276 Va. at 167.
Other jurisdictions have looked at multiple causation injuries and have also evaluated whether the first actor’s negligent conduct actively and continuously operated to bring about harm to another under the principles stated in Restatement (Second) of Torts § 439 (1964), which provides:
“If effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.”
Numerous cases within a medical malpractice setting illustrate that a health care provider’s negligence may act with the effects of care provided by subsequent providers to bring about harm for which the initial provider remains hable or, at least, comparatively hable. See Brillant v. Royal, 582 So. 2d 512, 523-24 (Ala. 1991) (finding that failure of second examining physician to diagnose patient’s warning leak was not intervening cause relieving first physician of liability for his failure to diagnose patient’s cerebral aneurysm); Osborn v. Irwin Memorial Blood Bank, 5 Cal. App. 4th 234, 253, 7 Cal. Rptr. 2d 101 (1992) (finding Restatement § 439 apphcable because “[a] ‘continuous’ chain of cause and effect is manifest” where a boy received blood from blood bank’s donor pool because blood bank misrepresented that directed donations were not available; the boy contracted AIDS because the blood was contaminated, just as his parents feared it would be); Schnebly v. Baker, 217 N.W.2d 708, 730-31 (Iowa 1974), overruled on other grounds Franke v. Junko, 366 N.W.2d 536 (Iowa 1985) (finding laboratory’s negfigence in reporting blood results set stage for subsequent negfigence of doctor’s reliance on those results despite other conflicting results and, therefore, doctor’s negfigence was not superseding cause to laboratory’s liability); Rudeck v. Wright, 218 Mont. 41, 51-52, 709 P.2d 621 (1985) (holding doctor is not relieved from liability for negligent act of leaving lap mat in patient following surgery because doctor’s negfigence “actively and continuously act[ed] to cause harm to his patient” along with the “active and substantially simultaneous negligent act of the nurses” in failing to account for lap mat); Johnson v. Hillcrest Health Center, Inc., 70 P.3d 811, 819 (Okla. 2003) (“When a cause merely combines with another act to produce injury, or several events coincide to bring about a single injury, each negligent actor may be held accountable.”); Hawkins v. Walker, 238 S.W.3d 517, 523-24 (Tex. App. 2007) (finding failure of other physician to diagnose patient’s ectopic pregnancy did not constitute superseding cause of patient’s death to relieve physician of liability for his negfigence in failing to discover patient’s condition); Wilson v. Brister, 982 S.W.2d 42, 45 (Tex. App. 1998) (finding summary judgment inappropriate where evidence supported the contention that physician was concurring cause of patient’s suicide despite negfigence of friend that gave patient the gun and bullets).
Kansas law is consistent with these cases. In fact, these principles were explained to the jury in this case in Instruction 10, which followed PIK Civ. 4th 104.02 and stated:
“There may be more than one cause of an injury; that is, there may be concurrent causes, occurring independently or together, which combine to produce the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.
“Concurrent causes do not always occur simultaneously. One cause may be continuous in operation and join with another cause occurring at a later time.
“When the concurring negligence of two or more persons causes an injury, each such person is at fault.
“If the negligence of only one person is the cause of the injury, then he or she alone is at fault.”
These principles were applied in Cassity v. Brady, 182 Kan. 381, 321 P.2d 171 (1958), a case with similar facts to those presented in this case. There, a patient with a dislocated knee and other injuries was seen by a physician at the Atchison County Hospital. The physician took X-rays and provided other treatment but did not treat the dislocated knee. Five days later, the patient was transferred to a hospital in Lawrence. A Lawrence physician also failed to promptly treat the patient’s knee. Ultimately, the patient was left with permanent knee injuries allegedly caused by the delay in treatment. Defending the suit, the first physician argued his negligence was not the proximate cause of the injury because of the subsequent treatment offered in Lawrence. This court disagreed, concluding:
“The omission of the two defendants were so related in point of time and interwoven that the resultant injury to the plaintiff was such that the omission on the part of each continued up until the time or date of the injury. In our opinion, the omission of each of the defendants concurred in producing the resultant injury to the plaintiff.” Cassity, 182 Kan. at 386.
Although the rules of joint and several liability discussed in that case have been altered by the adoption of comparative negligence, the principles of proximate cause have not. Hence, if negligent actions by one health care provider conjoin with other causes— whether the result of negligence or not — to bring about an injury, the health care provider may still be comparatively hable.
This does not mean that there cannot be an intervening cause, however. We agree with Nurse Deruy and Dr. Paoni that Restatement § 457 should not be read to totally eliminate the possibility of an intervening cause in a medical malpractice case, whether the alleged intervening cause is negligent or nonnegligent. Rather, as our Court of Appeals stated in Barkley v. Freeman, 16 Kan. App. 2d 575, 579, 827 P.2d 774 (1992): “The theory under which liability is continued in the initial tortfeasor is that it is foreseeable that the medical treatment could aggravate the initial injury. Our legal issue then becomes one of whether the later accident is foreseeable or is tire result of an intervening act or cause.” Nevertheless, as we have recognized in prior cases, it is only in extraordinary cases that there is an intervening cause. Hale v. Brown, 287 Kan. 320, 323, 197 P.3d 438 (2008) (citing Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 269, 43 P.3d 799 [2002]).
The extraordinary nature of an intervening cause is illustrated in two Tennessee Court of Appeals cases relied on by Nurse Deruy and Dr. Paoni — Godbee, 213 S.W.3d 865, and White v. Premier Medical Group, 254 S.W.3d 411 (Tenn. App. 2007). Neither decision persuades us that an intervening cause instruction should have been given in this case.
In Godbee, the patient in a medical malpractice action challenged the trial court’s decision to give a superseding cause instruction along with instructions regarding proximate cause and comparative fault. The patient had sued her orthopedic surgeon for his alleged negligence in failing to recognize her spinal stenosis and in performing the incorrect surgical procedure. She further alleged that the surgeon s negligence caused her to develop arachnoiditis, a condition involving hyperinflammation of the nerve roots.
The surgeon argued that evidence of the patient’s preexisting disc degeneration and evidence of subsequently performed tests and procedures formed the proper foundation for an instruction on superseding cause. The Tennessee Court of Appeals disagreed, concluding that a superseding cause instruction was not appropriate under the facts of its case. The court stated that while the superseding cause doctrine has survived the adoption of comparative fault and is not limited to negligent acts of third parties, the question of whether Godbee’s arachnoiditis resulted from the surgery performed by the orthopedic surgeon or whether the condition was simply the natural progression of preexisting degenerative disc disease related to cause in fact. Consequently, there was a basis for giving a standard jury instruction on proximate cause but not for superseding cause. Godbee, 213 S.W.3d at 888-89.
In coming to this conclusion, the Godbee court referred to a case from the New Mexico Court of Appeals, Chamberland v. Roswell Osteopathic Clinic, 130 N.M. 532, 27 P.3d 1019 (Ct. App.), rev. denied 130 N.M. 713 (2010). In Chamberland, the patient went to Roswell Osteopathic Clinic while experiencing abdominal pain. He was diagnosed with a urinary tract infection and was prescribed antibiotics and pain killers. Chamberland returned to the clinic a week later, where an examination indicated an inflamed prostate gland. After that, he went to four other doctors unaffiliated with the clinic, none of whom observed the classic symptoms of appendicitis. Ultimately, a doctor at the clinic referred Chamberland to a urologist who diagnosed appendicitis. Chamberland underwent surgery, but his appendix had already ruptured and created a large abscess.
When Chamberland sued the clinic for malpractice, the defendant asserted that appendicitis was not detectable during the time that the clinic’s doctors treated Chamberland and the subsequent intervention of the appendicitis constituted an “independent intervening cause.” Chamberland, 130 N.M. at 535. Chamberland argued that the appendicitis was already present when he first visited the clinic and the clinic’s doctors were negligent in failing to diagnose appendicitis.
The New Mexico Court of Appeals determined that the evidence demonstrated no more than a simple dispute over causation in fact, i.e., whether the clinic’s negligence did or did not cause in fact the injuries suffered by the patient. The appellate court explained that “[w]ithout some initial tortious act or omission by a defendant that precipitates the plaintiff s ultimate injury, subsequent causes and their injuries cannot ‘intervene.’ ” Chamberland, 130 N.M. at 536.
The Chamberland court determined that the dispute in its case “illuminate[d] the distinction between a true independent intervening cause and a mere dispute over causation in fact without an independent intervening cause.” Chamberland, 130 N.M. at 537. Only two scenarios were possible with respect to the patient’s appendicitis — either the appendicitis was present at the time the clinic’s doctors examined him or it was not. If Chamberland’s evidence showed the appendicitis was present and detectable through the exercise of ordinary care when he was examined at the clinic, it could be found hable for the injuries that followed. If, on the other hand, the appendicitis was not reasonably detectable at that point in time, then any negligence in the treatment of the patient’s urinary tract infection could not have been the cause in fact of the abscess and other injuries. The New Mexico Court of Appeals concluded that “[n]either circumstance justifies an independent inter vening cause instruction.” Chamberland, 130 N.M. at 537. Instead, the standard instruction on proximate cause was appropriate.
Other than supporting the argument that an intervening cause can arise in a medical malpractice context, we fail to see how God-bee or the case on which it relied — Chamberland—lends support to Nurse Deruy and Dr. Paoni. In this case, there was a question of whether an infection was present at the time Nurse Deruy examined and treated Ronald. And there was a question of whether Nurse Deruy and Dr. Paoni failed to realize the gravity of his medical condition, failed to diagnose his condition, and were negligent in their treatment or lack thereof. These issues go to the cause in fact of Ronald’s injuries. See Cagnolatti v. Hightower, 692 So. 2d 1104, 1111 (La. App. 1996) (holding that trial court in medical malpractice action against neurologist and nurse involved in treating stroke victim did not err in failing to give an intervening cause instruction; while defendants claimed that victim suffered cardiac arrest and ultimately died from stroke rather than from adverse reaction to drug they had administered, there was no argument that cardiac arrest was caused by both drug and stroke); Vallery v. State, 118 Nev. 357, 375, 46 P.3d 66 (2002) (holding that defendant was not entitled to intervening cause instruction in prosecution for elder abuse involving a resident of defendant’s care facility who died of organ failure due to hypothermia after leaving the facility without his caregiver’s knowledge; possibility that resident died of cardiac arrest was not a superseding cause since there was no evidence that cardiac arrest alone, without the hypothermia, was the sole cause of resident’s death); 57A Am. Jur. 2d, Negligence § 599 (Under the Restatement [Second] of Torts § 443 [1964], “the intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.”).
Nor does the second case from the Tennessee Court of Appeals cited by Nurse Deruy and Dr. Paoni — White, 254 S.W.3d 411— persuade us that an intervening cause instruction was appropriate in this case. In White, it was alleged that a physician negligently overdosed a patient. This resulted in the patient being placed in the intensive care unit (ICU) and on a ventilator. The physician presented evidence establishing that the patient responded to treatment and that the overdose did not cause brain damage. Nevertheless, the patient later suffered brain damage after several hours of restricted oxygen flow through the endotracheal tube. Expert testimony established that the standard of care was for ICU nurses and respiratory therapists to periodically suction a patient who is on a ventilator. This standard was not met, and the airway became obstructed. The patient received inadequate oxygen for a period of time in excess of 4 hours. According to the testimony, the ventilator sounded alarms beginning around 9 p.m., but the nurses did not call the critical care physician until 1:30 a.m. The critical care physician quickly removed the blockage, but the damage was irreversible. Based on this evidence, the Tennessee Court of Appeals concluded that “the alleged negligent care [the patient] received in the ICU could not have been reasonably foreseen by” the doctor. White, 254 S.W.3d at 421.
In other words, testimony established the type of care that was foreseeable in an ICU and, conversely, established it was not foreseeable that ICU nurses and respiratory therapists would ignore several hours of risky pressure readings and alarms. The negligence was so extraordinary it was distinguishable from situations where ordinary negligence by subsequent health care providers is foreseeable.
Evidence in This Case
Although Nurse Deruy and Dr. Paoni did not cite White in their briefs before the Court of Appeals and, therefore, the court did not address that decision, it considered similar principles regarding intervening cause and applied them to the facts of this case. The Court of Appeals concluded there was no evidence to support the theory that subsequent negligence was not foreseeable. The Court of Appeals noted there was “clear expert testimony that Dr. Mun-shi breached the applicable standard of care. Nevertheless, no medical expert for defendants opined that Dr. Munshf s care was so deficient that the defendants could not anticipate it.” Puckett, slip op. at 11.
On review, Nurse Deruy and Dr. Paoni argue the Court of Appeals reweighed the evidence, which they point out the Tennessee Court of Appeals stated in White it could not do. Indeed, this court has stated that “ ‘[w]hether risk of harm is reasonably foreseeable is a question to be determined by the trier of facts. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law.’ [Citations omitted.]” Nero v. Kansas State University, 253 Kan. 567, 583, 861 P.2d 768 (1993). Here, the defendants argue there was evidence sufficient to justify giving the intervening cause instruction. In a Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47) letter submitted after oral argument, Dr. Paoni’s counsel summarized the argument, stating:
“Although the use of the BiPAP mask was foreseeable, it was the replacement of the BiPAP on Mr. Puckett after his stomach had become full of fluid and was not emptying well from a cause totally unrelated to sepsis that was not reasonably foreseeable by defendant, and there was evidence adduced to that effect. Although some risk of aspiration might have been forseeable, aspiration from this cause was not.”
In support of their contention, Nurse Deruy and Dr. Paoni point to the testimony of defense expert Dr. McKinsey who opined that Ronald’s “death was from aspiration, not from bacteremia.” Dr. McKinsey also opined that sepsis caused the respiratory distress. Rut he stated that “the reason [Ronald] aspirated is he had a whole lot of fluid in his stomach and I can’t blame that on the sepsis.” When asked why Ronald, who was a diabetic, had fluid on his stomach, Dr. McKinsey stated it “must have been from something that he ate or drank and presumably his stomach was not emptying as well as [it] should” because of “[a]n acute illness in general or an operation, diabetes.” He explained further that Ronald “had a whole lot of fluid in his abdomen and he was being treated with a positive pressure face mask which provided oxygen and also increased pressure in his stomach. So it seems to me that the reason he aspirated is he had a stomach full of fluid under pressure.” When asked why he was on the positive pressure face mask, Dr. McKinsey answered: “The sepsis itself and then the fluids that are necessary to treat the sepsis.”
In other words, Dr. McKinsey s testimony established a cause in fact relationship between the treatment of the sepsis and Ronald’s death. The connection can be traced through the following connections: (1) Ronald’s infection or bacteremia, which Nurse Deruy and Dr. Paoni allegedly failed to properly diagnose and treat, caused systemic inflammatory response syndrome or sepsis that became severe; (2) the sepsis was treated with fluids; (3) sepsis and fluid retention led to Ronald’s respiratory distress; (4) Ronald’s respiratory distress required respiratory care, and one method of treatment is a BiPAP mask; (5) a BiPAP mask can cause pressure on the stomach; and (6) aspiration can result from “a stomach full of fluid under pressure.” Hence, according to Dr. McKinsey, no single factor, including the sepsis, caused the aspiration event. Rather, various causes contributed to causing the aspiration that was triggered when Ronald was placed back on the BiPAP mask. In light of the concurring causes, the issue for the jury was whether Nurse Deruy and Dr. Paoni committed negligence that was the cause in fact of the need to use some form of respiratory assistance that led to the foreseeable use of the BiPAP mask. If that cause in fact was established, Dr. McKinsey connects Nurse Deruy’s and Dr. Paoni’s acts or omissions with the other causes of the aspiration event. His testimony thus does not provide evidence on which a reasonable jury could find a superseding, intervening cause.
Further, even if we were to accept that the evidence was sufficient to create a juiy question on whether there was a superseding, intervening cause, there must also be evidence that such cause was not foreseeable. In this case, that question was whether the aspiration event was reasonably foreseeable to Nurse Deruy and Dr. Paoni, who obviously are health care providers and would be foreseeing the potential course of treatment of a patient and that treatment’s potential risks. These are matters beyond the common knowledge of a lay jury and would require expert testimony. In Hare v. Wendler, 263 Kan. 434, 440, 949 P.2d 1141 (1997), this court held that expert testimony is generally required in medical malpractice cases to establish the applicable standard of care and to prove causation, except where lack of reasonable care or existence of proximate cause is apparent to an average layperson from common knowledge or experience. See Collins v. Meeker, 198 Kan. 390, 394, 424 P.2d 488 (1967). In other words, if causation “is not one within common knowledge, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn.” Prosser and Keeton, The Law of Torts § 41, p. 269 (5th ed. 1984).
Dr. McKinsey did not directly address whether it was foreseeable that a patient would be placed back on the BiPAP mask after eating. Dr. Williams, another defense expert, did however.
Dr. Williams agreed with Dr. McKinsey that Ronald’s death resulted from aspiration. He explained that without the aspiration Ronald would not have suffered cardiac arrest or anoxic brain injury. In his opinion, Ronald’s death was due to the fact that Ronald was on the BiPAP mask, developed gastric distention, vomited, and aspirated the vomit which caused an obstruction in his airway. In turn, the obstruction caused Ronald’s oxygen level to drop and the lower oxygen levels resulted in cardiac arrest. Dr. Williams testified it was foreseeable that a patient with sepsis would need respiratory assistance and in such a case the choice was either a PAP device or intubation. While he faulted Dr. Munshi for using the BiPAP instead of a ventilator, he agreed that the use of a BiPAP mask was “fairly common” and it was “fairly common” to allow patients to eat while they were on a BiPAP mask. Dr. Williams also testified a recognized risk of using a PAP device was aspiration.
Hence, the only expert testimony before the juiy about the likelihood of using the BiPAP mask and using the BiPAP mask after eating was that it was “fairly common.” Further, the evidence was clear and uncontested that aspiration was a known risk of using the BiPAP mask.
This conclusion is not reached by reweighing evidence but looking for any evidence which can be viewed in a light favorable to Nurse Deruy’s and Dr. Paoni’s position. We have examined tire record as a whole and given special attention to each of the record citations given by Nurse Deruy and Dr. Paoni. We find no evidence supporting a conclusion that the aspiration event was not foreseeable. Hence, whether the aspiration resulted from negligence or not, it was a foreseeable consequence of the treatment alleged to have been necessitated by Nurse Deruy’s and Dr. Paoni’s alleged negbgence. Thus, considering the evidence in a light most favorable to Nurse Deruy and Dr. Paoni, we determine that the Court of Appeals correctly concluded this case is not one of extraordinary circumstances where an intervening cause instruction should have been given.
Harmless Error Analysis
Nurse Deruy and Dr. Paoni contend that even if the trial court erred by giving an intervening cause instruction, the error was harmless because the jury found no fault on the part of either Nurse Deruy or Dr. Paoni. They cite our oft-stated harmless error standard, under which the instructions “are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the juiy could not reasonably have been misled by them, the instructions will be approved on appeal.” Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000).
The Court of Appeals determined it could not find the error harmless. Puckett, slip op. at 14. In reaching this conclusion, the Court of Appeals noted that the jury could answer the first question on the verdict form — whether either Nurse Deruy or Dr. Paoni were at fault — without reaching tire issue of intervening cause. The court noted, however, that knowing “whether the juiy did so demands a level of clairvoyance that we do not enjoy” because the jury might have reached the no-liability conclusion after concluding an intervening cause cut off Nurse Deruy’s and Dr. Paoni’s liability. Puckett, slip op. at 13. Further, the Court of Appeals noted the instructions and verdict form did not explain that the intervening cause would cut off liability only for those damages occurring after the aspiration event. Rather, the instructions and verdict form were misleading in allowing the conclusion that the intervening cause could shift liability entirely. Puckett, slip op. at 12-14.
We agree with the Court of Appeals’ analysis that the instructions were misleading because they suggested an intervening cause could relieve Nurse Deruy and Dr. Paoni of liability for all dam ages, including those incurred before the intervening cause — i.e., the aspiration event. Hence, if we were to accept Nurse Deruy s and Dr. Paoni’s arguments that there was sufficient evidence to support an intervening cause instruction, we would not be able to discern whether the jury had determined Nurse Demy and Dr. Paoni were not at fault because they did not meet the applicable standard of care by finding their negligence did not cause tibe injury or because an intervening cause superseded their negligence. Because of the possibility that the jury based its decision on intervening cause, a remand would be necessary to clarify the limited impact of the intervening cause on liability and damages.
There is a more significant problem, however, because there was no evidence of an intervening cause. Ironically, Nurse Deruy and Dr. Paoni have a stronger argument that there was harmless error in light of the complete lack of evidence because we must presume the jury followed the instmctions. If the jury correctly applied the instmctions, it would not have found there was an intervening cause because there was no evidence to support that finding. See City of Mission Hills v. Sexton, 284 Kan. 414, Syl. ¶ 20, 160 P.3d 812 (2007) (jury presumed to follow instmctions).
Nurse Deruy and Dr. Paoni suggest such a conclusion is appropriate and point us to a case decided by the Texas Court of Appeals, James v. Kloos, 75 S.W.3d 153 (Tex. App. 2002), in support of their contention. In James, the patient brought a medical malpractice action against a nurse, alleging he developed a staph infection in his surgically replaced knee after slipping and falling on tire knee while in the nurse’s care. One issue raised on appeal by the patient was that the trial court erred in submitting to the jury an instruction on “ ‘new and independent cause’ ” when no evidence was introduced to support a finding of new and independent cause. James, 75 S.W.3d at 161. The nurse asserted that the trial court properly gave an intervening cause instruction because the jury could have found that the patient’s staph infection was caused by something other than his fall.
The James court, applying an abuse of discretion standard of review, determined that the trial court erred in giving an intervening cause instruction. James, 75 S.W.3d at 163. Further, the nurse failed to present any evidence that James’ injury was not a reasonably foreseeable result or natural consequence of the incident in question. James, 75 S.W.3d at 163.
In considering whether the trial court’s decision to instruct the jury on intervening cause was harmless, the James court stated: “It is a rare case in which the incorrect inclusion of ‘new and independent cause’ in the jury charge is reversible error. [Citations omitted.] . . . An improper instruction is especially likely to cause an unfair trial when the trial is contested and the evidence is sharply conflicting. [Citation omitted.]” James, 75 S.W.3d at 163.
The James court indicated that while there was conflicting evidence on the standard of care, causation, and the circumstances surrounding the underlying event, James failed to identify any evidence in the record suggesting that “the verdict was probably a result of the inclusion of the improper instruction.” James, 75 S.W.3d at 164. During closing arguments, there was an emphasis on the nurse’s negligence, but “new and independent cause” was only mentioned twice. Further, the nurse had presented substantial evidence that she was, in fact, not negligent in her care of James, which she emphasized during closing arguments. In addition, according to the James court: “[T]he jury’s ‘no’ answer to the question ‘[d]id the negligence, if any, of those named below proximately cause the injuiy in question’ could very well have been based on its determination that [the nurse] was not negligent.” James, 75 S.W.3d at 164. The appellate court acknowledged that the submission of a single question on negligence and proximate cause means that the juiy could have based its verdict either on the improper proximate cause instruction or on a finding of no negligence, but the mere possibility did not satisfy the proof requirement to establish reversible error. James, 75 S.W.3d at 164; see also Contois v. Town of West Warwick, 865 A.2d 1019, 1027-28 (R.I. 2004) (in case against emergency medical technicians where child choked to death after vomiting during a seizure, it was error to give intervening cause instruction because there was no evidence to support the instruction; but unwarranted instruction was harmless under “holistic” approach to examination of instructions).
There is contrary authority, however, including two out-of-state cases we previously discussed, Godbee v. Dimick, 213 S.W.3d 865, 897 (Tenn. App. 2006), and Chamberland v. Roswell Osteopathic Clinic, 130 N.M. 532, 538, 27 P.3d 1019 (Ct. App.), rev. denied 130 N.M. 713 (2001). In Godbee, the Tennessee Court of Appeals applied a harmless error standard similar to ours and concluded it could not say the various errors, which included giving the intervening cause instruction that was not supported by the evidence, did not substantially affect the jury verdict. Godbee, 213 S.W.3d at 897. The multiple errors distinguish that case, however. But, in considering the single error of giving an intervening cause instruction that was not warranted by the evidence, the New Mexico court in Chamberland held the error was reversible, and the court stated:
“Having determined that the court erred in giving an instruction unsupported by the evidence, prejudice is presumed. As our Supreme Court stated in [citations omitted], ‘[w]e compel the reversal of errors for which the complaining party provides the slightest evidence of prejudice and resolve all doubt in favor of the complaining party.’ The Chamberlands have met their burden by demonstrating that there was no evidence to support the instruction. [Citations omitted.] With prejudice presumed from an instruction unsupported by the evidence, reversal and remand for a new trial is required. We also observe that Defendants alone undertook the risk of demanding an instruction in the face of strenuous objection and questionable support in the record. It has always been the law in New Mexico that ‘after injecting [error] into the case to influence the jury, the [appellee] ought not to be heard to say, after he has secured a conviction, it was harmless.’ [Citation omitted.]” Chamberland, 130 N.M. at 538.
The Nebraska Supreme Court reached the same conclusion of reversible error when an instruction was not supported by any evidence, although it did so under a slightly different analysis. In Sacco v. Carothers, 253 Neb. 9, 16, 567 N.W.2d 299 (1997), the court stated: “A litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence.” Under this standard, giving an intervening cause instruction was not justified, leading the court to conclude:
“An instruction on a matter not an issue in the litigation distracts the jury from its effort to answer legitimate, factual questions raised during the trial. [Citation omitted.] Submission of an issue on which the evidence is insufficient to sustain an affirmative finding is generally prejudicial and results in a new trial. [Citations omitted.]” Carothers, 253 Neb. at 165.
The view of the Nebraska and New Mexico courts has some support in analogous Kansas cases. First, there is a line of Kansas cases stating that a material error in jury instructions should be presumed prejudicial. Most recently, this standard was applied by the Court of Appeals in a decision we previously mentioned in our discussion regarding foreseeability, Barkley v. Freeman, 16 Kan. App. 2d 575, 579, 827 P.2d 774 (1992). In Barkley, the plaintiff sought damages suffered in an automobile collision. It was argued that some of the plaintiff s damages arose from an aggravation of the injury in another collision that occurred 10 months later. The Court of Appeals concluded the subsequent accident was an intervening cause and found error in an instruction that prevented application of intervening cause concepts to the aggravated injury. After stating Kansas’ harmless error standard for jury instructions — i.e., where instructions as a whole properly instruct a jury an isolated error will be deemed harmless — the court stated: “The Kansas Supreme Court has held that an incorrect instruction must be presumed prejudicial unless the contrary is clearly shown and that an erroneous instruction on a material issue requires a reversal. [Citations omitted.]” Barkley, 16 Kan. App. 2d at 583.
To support this conclusion, the Barkley Court of Appeals cited Van Mol v. Urban Renewal Agency, 194 Kan. 773, 776, 402 P.2d 320 (1965), a case with no factual similarity to Barkley or this case. However, Van Mol cites to cases where a liability shifting defense— unavoidable accident — was at issue: see Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 552-53, 376 P.2d 809 (1962); Paph v. Tri-State Hotel Co., 188 Kan. 76, 80-81, 360 P.2d 1055 (1961). As explained in Paph, giving the liability shifting instruction when it was not supported by the evidence was “prejudicial” and required reversing the jury’s verdict. Paph, 188 Kan. at 84. These cases suggest prejudice is presumed when a jury instruction that potentially shifts liability is not supported by the evidence.
Another factor suggests the jury could have been misled by the superseding, intervening cause instruction being given in this case. That factor is the manner in which intervening cause was argued to the juiy. During the closing arguments in this case, there was very little focus on the intervening cause. Nevertheless, when intervening cause was mentioned, it was discussed in a misleading manner. One of the defense attorneys argued:
“We have an independent intervening cause that is going on over here in Joplin. Did Dr. Paoni even know Dr. Munshi was going to be the specialist to see him? Absolutely not. He sent him over to St. John’s, talked to Dr. Dhawan, they direct where he’s going. So does he know what’s going to happen? Absolutely not.”
This argument suggested the intervening cause was not foreseeable because Dr. Paoni did not know the doctor who would treat Ronald. It was not explained that the question was whether Dr. Paoni could foresee that whoever the subsequent treating physician would be would use a BiPAP mask — given Ronald’s condition, which included diabetes, that might cause Ronald’s stomach to not empty. Further, the arguments regarding whether Dr. Munshi’s negligence or some other factor was the intervening cause were confusing. This confusion is made evident by the fact that the parties still squabble over the details of the defense theoiy and whether such details were raised at the trial level.
In addition, a considerable amount of defense expert testimony was dedicated to deflecting fault from Nurse Deruy and Dr. Paoni and placing it on Dr. Munshi and his use of the BiPAP mask. Although Nurse Deruy and Dr. Paoni contend the jury would have only considered any alleged negligence of Dr. Munshi for “comparative fault purposes,” this is not necessarily so. Because of the intervening cause instruction, the jury could still have found Dr. Munshi was negligent and, given the way foreseeabihty was argued, that his negligent actions were “unforeseeable,” interrupting any negligence on the part of Nurse Deruy and Dr. Paoni.
As we consider the evidence, the arguments, and the instructions as a whole, we conclude it is clearly possible and even probable that the jury was confused by its consideration of the intervening cause instruction. The Court of Appeals correctly determined that the erroneous instruction on intervening cause could have misled the jury under the facts and circumstances of this case. Conse quently, the jury verdict is reversed and the case is remanded for a new trial.
Other Issues
The Court of Appeals declined to consider two additional issues raised by Susan: (1) alleged juror bias and (2) the trial court’s decision to prohibit standard of care testimony from Nurse Deruy. In Susan’s “Response to Petition for Review,” she incorporates by reference her arguments raised before the Court of Appeals, and at oral argument, she urged this court to consider the issues in order to provide guidance on remand. See Supreme Court Rule 8.03(c)(3) (2009 Kan. Ct. R. Annot. 68) (“In a civil case, the response also may present for review adverse rulings or decisions of the district court that should be considered by the Supreme Court in the event of a new trial, provided that the respondent raised such issues in the Court of Appeals.”).
We decline to address the question of juror bias because it was unique to the first trial and is not likely to arise on remand. In contrast, the second question is likely to be presented on retrial and, therefore, will be addressed. In presenting this issue, Susan alleges the trial court erred in sustaining a defense objection to the following question asked of Nurse Deruy: ‘Well don’t you agree that if you were there without the supervising doctor present, that you had to meet a doctor’s standard of care?” In addition, before defense counsel objected, the trial court sua sponte interrupted Susan’s counsel from asking, “[I]f you proceeded to treat a patient without consulting with the supervising physician and without calling the supervising physician, you are held to the standard of care under general guidelines, you are held to the standard of care of a physician; isn’t that true?”
The standard of review for questions regarding the admissibility of evidence is a multistep standard. The first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. See State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 (2008). If the evidence is relevant to a material fact, it may be admitted in accordance with the rules of evidence. This court has clarified, however, that a trial court always abuses its discretion when its decision “goes outside the legal framework or fails to properly consider statutory limitations. For this reason, appellate courts review de novo whether a district court applied the correct legal standards when ruling on the admission or exclusion of evidence.” Boldridge v. State, 289 Kan. 618, Syl. ¶ 10, 215 P.3d 585 (2009).
Typically the admission of expert testimony is reviewed under an abuse of discretion standard and depends on finding that the testimony will be helpful to the jury. State v. Cooperwood, 282 Kan. 572, 576, 147 P.3d 125 (2006). Under the circumstances of this case, we determine that there was not an abuse of discretion.
Here, the trial court refused to allow questions that sought an opinion from Nurse Deruy as to the legal standard that applies in a medical malpractice action against her as a nurse practitioner. The applicable legal standard of care is a matter on which the judge would and did provide instructions consistent with PIK Civ. 4th 123.01, which states in part:
“In performing professional services for a patient, [an A.R.N.P.] has a duty to use that degree of learning and sldll ordinarily possessed and used by members of that profession and of that school of medicine in the community in which the [A.R.N.P.] practices, or in similar communities, and under lilce circumstances.”
See also PIK Civ. 4th 123.02 (duty/standard of care of hospital); PIK Civ. 4th 123.12 (duty/standard of care of medical specialist). As the comment to PIK Civ. 4th 123.01 indicates, the factual proof related to whether this legal standard of care has been met “requires two evidentiary steps. It requires evidence as to the recognized standards of the medical community in the particular kind of case, and a showing that the health care provider in question negligently departed from the standard in treating the patient.” PIK Civ. 4th 123.01, Comment.
Asking Nurse Demy whether she believed she must meet the standard of care of a physician crosses or at least blurs the line between the judge’s responsibility to instmct the jury on the applicable legal standard of care and the witness’ opinion as to what level of medical care was appropriate under the circumstances. If a witness testifies as to the legal standard, there is a danger that a juror may turn to the witness’ legal conclusion rather than the judge’s instruction for guidance on the applicable law. As a result, it is generally recognized that testimony expressing a legal conclusion should ordinarily be excluded because such testimony is not the way in which a legal standard should be communicated to the jury. As one federal court stated:
“Even if a jury were not misled into adopting outright a legal conclusion proffered by an expert witness, the testimony would remain objectionable by communicating a legal standard — explicit or implicit — to the jury. See Andrews v. Metro N. Commuter R.R., 882 F.2d 705, 709 (2d Cir.1989); FAA v. Landy, 705 F.2d 624, 632 (2d Cir.), cert. denied 464 U.S. 895, 104 S.Ct. 243, 78 L.Ed.2d 232 (1983). Whereas an expert may be uniquely qualified by experience to assist the trier of fact, he is not qualified to compete with the judge in the function of instructing the jury.” Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992).
In other words, while Nurse Deruy could be asked about the applicable standard of medical care, it was inappropriate to ask about the legal standard of care, and it was the legal standard that was addressed in the disputed questions. Her testimony on a legal standard of care to be supplied by the trial court would not be helpful to the jury and, in fact, would be confusing. It was not an abuse of discretion to exclude Nurse Deruy’s answers, and the trial court did not err.
The decision of the Court of Appeals reversing the district court is affirmed. The decision of the district court is reversed and remanded with directions. | [
-112,
-20,
-75,
-114,
42,
96,
48,
10,
117,
-93,
55,
115,
-83,
-61,
-123,
47,
-77,
63,
80,
-31,
-42,
-77,
23,
-31,
-62,
-37,
123,
-114,
-16,
-50,
-26,
-3,
73,
120,
-126,
-107,
-26,
75,
-43,
84,
-60,
-121,
-119,
-17,
89,
-126,
48,
62,
-38,
3,
49,
30,
-61,
42,
62,
-62,
104,
40,
123,
61,
20,
-71,
-118,
5,
-55,
0,
-93,
0,
-98,
7,
88,
54,
-46,
49,
66,
-20,
82,
-10,
-126,
20,
75,
-71,
4,
103,
98,
33,
29,
-19,
120,
-72,
31,
-50,
29,
-89,
-69,
9,
-22,
1,
-106,
-71,
118,
94,
10,
-4,
-23,
-40,
31,
44,
0,
-34,
-112,
-79,
-41,
48,
-98,
122,
-13,
39,
48,
117,
-123,
-72,
92,
-57,
115,
-69,
126,
-106
] |
The opinion of the court was delivered by
Nuss, J.:
Kevin J. LaBelle appeals the Court of Appeals’ affirmation of the district court’s denial of his motion to correct an illegal sentence. We granted LaBelle’s petition for review; our jurisdiction is under K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in classifying LaBelle as a persistent sex offender and in ultimately doubling his sentence pursuant to K.S.A. 21-4704? Yes.
2. Did the district court violate LaBelle’s Sixth Amendment rights under the United States Constitution by sentencing him to the aggravated term in the sentencing grid block without submitting the facts to a jury for proof beyond a reasonable doubt? No.
Accordingly, we vacate LaBelle’s sentence and remand for re-sentencing.
Facts
Pursuant to a plea agreement, in 2005 Kevin J. LaBelle pled guilty to one count of sexual exploitation of a child, a severity level 5 person offense under K.S.A. 21-3516(a)(2). The agreement permitted the State to ask the court to double LaBelle’s sentence under K.S.A. 21-4704(j), the persistent sex offender statute.
The original presentence investigation report (PSI) scored LaBelle’s criminal history as “A” and showed 122-130-136 months as the presumptive sentencing range for his current crime of conviction. For reasons unclear in the record, the presentence investigator prepared and filed an amended PSI the day after filing the original.
The criminal histoiy score in both the original and amended PSI was based, in part, upon LaBelle’s prior adult conviction for indecent liberties with a child in 91 CR 1043. The original PSI also included in its criminal histoiy score LaBelle’s prior juvenile adjudication for indecent liberties with a child in 88 JV 1252. But the amended PSI then deleted that adjudication from the criminal history computation, lowering LaBelle’s criminal history score to “B.” The amended PSI also showed 228-240-256 months as the presumptive sentencing range for a severity level 5, criminal histoiy “B” grid block, which is double that grid block’s presumptive range. The amended PSI does not explain why the presumptive sentencing range is doubled. While doubling would be authorized for a persistent sex offender, the district court had not yet classified LaBelle as one.
At LaBelle’s later sentencing hearing, the district court judge stated, “The [amended] presentence investigation in this matter would indicate that the defendant is a Criminal History B and also meets the requirements of a persistent sex offender under the statute.” While the amended PSI never explicitly states that LaBelle is a persistent sex offender, the judge presumably derived this classification from the PSI’s doubling of the presumptive sentencing range. When asked by the court, both counsel agreed that the criminal histoiy score and persistent sex offender classification were correct. The court then formally classified LaBelle as a persistent sex offender but did not specify which prior sexually violent crime, 88 JV 1252 or 91 CR 1043, supported this finding. Ultimately, the court sentenced LaBelle to 256 months’ imprisonment, i.e., double the aggravated term of 128 months in the presumptive sentencing range for his grid block.
LaBelle filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. His argument assumed the district court used 91 CR 1043 to classify him as a persistent sex offender. He therefore challenged the use of 91 CR 1043 to also increase his criminal history score. The district court judge overruled LaBelle’s motion, writing in tire motion minutes sheet: “Defendant sentenced as a persistent sex offender. No constitutional issue of upward departure is at issue.” There was no further mention of this issue.
LaBelle then filed a pro se motion to alter or amend judgment. He claimed the district court’s order overruling the motion to correct an illegal sentence lacked specific findings and contained inadequate conclusions. He reasserted his claim that the dual use of 91 CR 1043 was improper. The State responded that there was no dual use because the court had classified LaBelle as a persistent sex offender using his 88 JV 1252 adjudication and not his 91 CR 1043 conviction. In a motion minutes sheet, the court overruled LaBelle’s motion by writing: “Abuse of remedy. Court has already ruled on the issues.” The Court of Appeals affirmed. State v. LaBelle, 2008 WL 3915985, at *1-2 (2008).
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court erred in classifying LaBelle as a persistent sex offender and in ultimately doubling his sentence.
LaBelle claims that under K.S.A. 22-3504 he received an illegal sentence because the district court improperly classified him as a persistent sex offender. Our standard of review is as follows:
“The question of whether a sentence is illegal is a question of law over which this court has unlimited review. An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of tire punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.” Deal v. State, 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 (2008).
Accord State v. Ballard, 289 Kan. 1000, Syl. ¶ 11, 218 P.3d 432 (2009).
As a threshold matter, the State claims that LaBelle stipulated to his criminal histoiy score at sentencing and cannot complain about the score on appeal. It cites State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996). There, the defendant stipulated to the criminal histoiy worksheet at sentencing. After pronouncement of sentence, he filed a motion to correct clerical and arith metic errors, claiming a prior juvenile conviction was a nonresidential burglary and not a residential one. The district court denied the motion and the defendant appealed, but the Court of Appeals found his appeal untimely. After noting that “a sentence can no longer be modified after its pronouncement,” the court rejected defendant’s claim that his motion to correct clerical and arithmetic errors effectively was a motion to correct an illegal sentence, which can be raised at any time. 23 Kan. App. 2d at 304. The court opined that defendant invited the error by stipulating to the criminal history score and could not complain or take advantage of such error on appeal.
We disagree with the State. Unlike McBride, LaBelle does not dispute the accuracy of the amended PSI. More specifically, he does not challenge the amended PSI’s computation of his criminal history. Rather, he appeals the district court’s particular use of his prior crimes when classifying him as a persistent sex offender.
We recognize that LaBelle’s attorney acknowledged at sentencing that the amended PSI provided a criminal history score of “B” and that LaBelle met the requirements of a persistent sex offender. We further recognize that a “litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 8, 136 P.3d 417 (2006). But this rule does not preclude LaBelle’s motion to correct an illegal sentence. As fully discussed below, LaBelle does qualify as a persistent sex offender, and his attorney’s statement at sentencing did not invite the error. Simply put, his admission did not anticipate the grounds upon which the district court would classify — and sentence — him as a persistent sex offender, which is the basis for his appeal. Finally, there is no dispute that LaBelle timely filed his motion to correct an illegal sentence, and we do not face a jurisdictional dilemma similar to McBride. See K.S.A. 22-3504(1) (“The court may correct an illegal sentence at any time.”).
Having rejected the State’s threshold argument, we now turn to the merits. The amended PSI computed LaBelle’s criminal history as “B” by using his six prior adult convictions, including 91 CR 1043. LaBelle’s prior juvenile adjudications, including 88 JV 1252, were listed but not used in the history computation.
K.S.A. 21-4704(j) requires courts to double the sentence of persistent sex offenders. The statute defines “persistent sex offender” as a person who:
“(A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under (A) (i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government
LaBelie pleaded guilty in the instant case to sexual exploitation of a child, which is a sexually violent crime as defined in K.S.A. 22-3717(d)(2)(H). To qualify as a persistent sex offender, LaBelie therefore must have at least one prior conviction for a sexually violent crime.
LaBelle’s prior criminal determinations in 91 CR 1043 and 88 JV 1252 were both for indecent liberties with a child, in violation of K.S.A. 21-3503. Of his numerous prior crimes, these are the only ones that qualify as “sexually violent crimes.” See K.S.A. 22-3717(d)(2)(B) (“sexually violent crime” includes indecent liberties with a child in violation of K.S.A. 21-3503). We recognize that either of these prior criminal determinations, when combined with LaBelle’s guilty plea in tire present matter, could potentially satisfy the conditions for his classification as a “persistent sex offender” under K.S.A. 21-4704(j). However, our inquiiy does not end here. Because the record is unclear whether the district court classified LaBelie as a persistent sex offender based upon 91 CR 1043 or instead upon 88 JV 1252, we address each in turn to determine if either could have been properly used.
91 CR 1043
LaBelie contends that he received an illegal sentence because the court cannot use 91 CR 1043 both to calculate his criminal history score and to classify him as a persistent sex offender. We agree such a dual use is prohibited.
K.S.A. 21-4710(d)(ll) is the relevant statute and provides:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of die present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)
We interpreted this provision in conjunction with the persistent sex offender statute, K.S.A. 21-4704(j), in State v. Zabrinas, 271 Kan. 422, 24 P.3d 77 (2001). A jury convicted Zabrinas of sexual exploitation of a child. He had two prior convictions meeting the definition of “sexually violent crimes.” The PSI used both to compute his criminal score as “B,” and the district court adopted this computation. It also used one of these prior sexually violent crimes to classify Zabrinas as a persistent sex offender under K.S.A. 21-4704(j) and to double his sentence. We rejected the prior conviction’s dual use, both in computing criminal histoiy and in classifying Zabrinas as a persistent sex offender, stating:
“K.S.A. 21-4710(d)(ll) plainly prevents, in determining criminal history, die counting of a prior conviction that was used to double the sentence under 21-4704(j). [I]f the legislature had intended to allow the double counting of the conviction, it could have placed language in the statute evidencing that intent as it did with predatoiy sex offenders. [Citation omitted.]” 271 Kan. at 443-44 (relying on State v. Taylor, 27 Kan. App. 2d 62, 998 P.2d 123 [2000]).
Consequently, we vacated Zabrinas’ sentence. We remanded for a resentencing at which the sexually violent crime serving to double his sentence as a persistent sex offender was to be deleted from his criminal history score calculation. 271 Kan. at 444.
Similarly, in State v. Moore, 274 Kan. 639, 55 P.3d 903 (2002), Moore was convicted of aggravated indecent liberties with a child and kidnapping, both severity level three felonies. His criminal history score of “B” included his convictions for sexual exploitation of a child and indecent liberties with a child — his only prior “sexually violent crimes.” The district court classified Moore as a persistent sex offender under K.S.A. 1997 Supp. 21-4704(j). But it failed to specify which of his two prior convictions for sexually violent crimes supported this finding. Citing Zabrinas and Taylor, we vacated Moore’s sentences and remanded for resentencing because the “district court erred in failing to remove from Moore’s criminal history score the sexually violent crime it [also] used to qualify Moore as a persistent sex offender under K.S.A. 1997 Supp. 21-4704(j).” 274 Kan. at 651.
In the instant case, the State concedes that 91 CR 1043 cannot be used to compute LaBelle’s criminal histoiy score and to classify him as a persistent sex offender. Instead, the State contends that the district court only used 91 CR 1043 to calculate LaBelle’s criminal history score and used 88 JV 1252 to classify him as a persistent sex offender.
It is undisputed that the amended PSI included 91 CR 1043 to compute LaBelle’s criminal history. But there are indications the court may also have used 91 CR 1043 to classify LaBelle as a persistent sex offender. For example, LaBelle’s plea agreement permitted the State to
“ask that the defendant be sentenced to double to the top number in the appropriate grid box pursuant to K.S.A. 21-4704(j) the ‘persistent sex offender’ act, as a result of his prior conviction in 91 CR 1043.” (Emphasis added.)
Unfortunately, the district court never articulated the specific basis for its persistent sex offender classification. Even after LaBelle filed his postsentencing motions claiming the district court improperly used 91 CR 1043 in its determination, the court’s orders did not specify how it used the “sexually violent” prior crimes at sentencing. Because this adult conviction clearly was used in computing LaBelle’s criminal histoiy score,' it cannot also be used to classify LaBelle as a persistent sex offender. See Moore, 274 Kan. at 651; Zabrinas, 271 Kan. at 443-44. Due to the lack of specificity at sentencing, we hold that the possible dual use of 91 CR 1043 results in reversible error.
88 JV 1252
Having established that the district court could not permissibly use 91 CR 1043 to classify LaBelle as a persistent sex offender because that conviction clearly was used in computing his criminal history score, we now turn to the possible use of the juvenile adjudication in its stead. Stated another way, was 88 JV 1252 properly used to classify LaBelle as a persistent sex offender?
As another threshold matter, the State claims that LaBelle is precluded from arguing against the use of 88 JV 1252 because he did not do so until after the Court of Appeals issued its opinion. It cites State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008). There, we declined to address certain issues because they were not presented to the Court of Appeals. Here, the Court of Appeals considered both 91 CR 1043 and 88 JV 1252. They are properly before us for review. While we acknowledge the State is correct that LaBelle did not directly refute the use of 88 JV 1252 in the persistent sex offender classification until after the Court of Appeals’ opinion, this is due to his understandable belief that 91 CR 1043 served as the district court’s classification basis. The Court of Appeals’ opinion apprised him of the alternative, and he filed a supplemental brief addressing this point. Through it all, Labelle’s general claim of an illegal sentence has remained the same. He has consistently claimed his persistent sex offender classification was improperly determined at sentencing, and he appealed his resultant increased sentence. Therefore, this issue is before us for review.
Having rejected the State’s threshold argument, we now turn to the merits. The State essentially argues that a juvenile adjudication is a terrible thing to waste and 88 JV 1252 could substitute for the twice-used 91 CR 1043 as the basis for classifying LaBelle as a persistent sex offender. The Court of Appeals agreed with this substitution, stating:
“We agree with LaBelle that because 91 CR 1043 was used to calculate his criminal history score, it could not be used to classify him as a persistent sex offender. However, because 88 JV 1252 was unscored and classified as a prior conviction for a sexually violent crime, it could be used to classify LaBelle as a persistent sex offender.” (Emphasis added.) LaBelle, 2008 WL 3915985, at “1-2.
We disagree. After the Court of Appeals issued its opinion and all briefs were filed in this case, we released our opinion in State v. Boyer, 289 Kan. 108, 209 P.3d 705 (2009). There, the district court classified the defendant as a persistent sex offender based upon a prior juvenile adjudication. We analyzed K.S.A. 21-4704(j), the persistent sex offender statute, in light of K.S.A. 21-4710, which defines “criminal history.” We noted that the language for calculating criminal history in K.S.A. 21-4710 expressly included juvenile adjudications, whereas it was conspicuously absent in the language for determining persistent sex offenders in K.S.A. 21-4704(j). We reasoned that the legislature intentionally excluded this language from K.S.A. 21-4704(j). We stated:
“[T]here is no indication that the legislature intended the list of prior convictions set out in K.S.A. 21-4710(a) to apply to anything other than the determination of criminal history for the sentencing guidelines grid purposes ... .It does not say that the following types of prior convictions should be used for all purposes or even for the purpose of determining persistent sex offender status. Rather, the reference is evidently limited to determining criminal history categories for the sentencing guidelines grids.” (Emphasis added.) 289 Kan. at 115.
This distinction served as the basis for our holding in Boyer that “juvenile adjudications are not to be considered in the determination of persistent sex offender status under K.S.A. 21-4704(j).” 289 Kan. at 116. We thus conclude, in light of Boyer, that LaBelle’s juvenile adjudication in 88 JV 1252 cannot serve as the basis for classifying him as a persistent sex offender.
Accordingly, while the district court’s exact basis for classifying LaBelle as a persistent sex offender is unclear, our analysis has revealed that neither 91 CR 1043 nor 88 JV 1252 could have been properly used in this calculation. We acknowledge that courts are not required to specify at sentencing how particular convictions or adjudications are used. However, following Zabrinas in 2001 and Boyer in 2009, both of which establish use limits for determining persistent sex offender classifications, we hold that the preferred judicial practice is to put on the record the specific use for each conviction or adjudication, e.g., when both classifying defendant as a persistent sex offender and calculating his or her criminal history score.
We recognize that at LaBelle’s resentencing hearing he could potentially receive the same sentence as before. Specifically, during oral arguments both parties stated that by substituting 88 JV 1252 for 91 CR 1043 in LaBelle’s criminal history, his criminal history score would remain “B.” Assuming this to be true, this substitution would permit the district court to then use 91 CR 1043 to classify LaBelle as a persistent sex offender and to double the longest term in his presumptive grid block to 256 months’ imprisonment — the exact sentence he received. Despite this possibility, or even probability, we cannot presently affirm LaBelle’s sentence because on remand the district court may make other findings and impose a different sentence. Moreover, our affirming on this basis would be akin to sentencing in absentia. See K.S.A. 22-3405(1) (defendant in felony case shall be present at imposition of sentence).
Consequently, we vacate LaBelle’s sentence and remand to the district court for resentencing on Issue 1.
Issue 2: The district court did not violate LaBelle’s Sixth Amendment rights under the United States Constitution.
LaBelle claims the district court violated his Sixth Amendment rights by sentencing him to the aggravated term in the grid block without submitting the aggravating factors to a juiy for proof beyond a reasonable doubt. He relies upon Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007). The State responds by distinguishing the California sentencing guidelines at issue in Cunningham from the Kansas sentencing guidelines.
Construction of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., and determination of the constitutionality of its provisions are questions of law. State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003); State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
LaBelle’s claim ignores our resolution of this issue in State v. Johnson, 286 Kan, 824, 190 P.3d 207 (2008), which controls our result. There, we concluded that “K.S.A. 21-4704(e)(l) grants a judge discretion to sentence a criminal defendant to any term within the presumptive grid block, as determined by the conviction and the defendant’s criminal histoiy.” 286 Kan. at 851. Thus, “under K.S.A. 21-4721(c)(l), this court is without jurisdiction to consider [defendant’s] challenge to his presumptive sentences even if those sentences are to the longest term in the presumptive grid block for his convictions.” 286 Kan. at 851-52; see State v. Houston, 289 Kan. 252, 278, 213 P.3d 728 (2009).
Judgment of the district court and the Court of Appeals is affirmed in part and reversed in part. LaBelle’s sentence is vacated, and the case is remanded for resentencing. | [
-112,
-24,
-35,
-98,
11,
97,
90,
-104,
66,
-9,
-21,
115,
45,
-62,
4,
123,
-101,
43,
85,
121,
-107,
-73,
114,
-63,
-74,
-5,
-45,
-43,
-75,
95,
-20,
-108,
24,
-16,
-126,
-11,
98,
-56,
57,
-36,
-114,
7,
-119,
-39,
19,
3,
38,
106,
95,
15,
53,
-98,
-77,
106,
26,
-62,
-119,
45,
91,
-67,
8,
-7,
-71,
29,
74,
20,
-96,
4,
26,
4,
80,
47,
-40,
57,
0,
-24,
123,
-106,
-122,
116,
15,
11,
-123,
32,
99,
33,
105,
-58,
60,
-56,
15,
95,
-115,
-25,
-103,
90,
108,
77,
-106,
-67,
116,
54,
13,
126,
103,
-58,
23,
108,
-61,
-122,
-80,
-111,
-51,
49,
-122,
-70,
-5,
37,
80,
49,
-57,
-96,
84,
-10,
120,
87,
-18,
-106
] |
The opinion of the court was delivered by
Rosen, J.:
This is an appeal from the district court’s denial of a motion to withdraw plea. The appellant was sentenced to life without possibility of parole for 20 years on her plea of no contest to felony murder.
On April 22,2007, fires were set outside the doors of a residence in Kansas City, Kansas. Fire engulfed the house and one of the two people inside, Marquetta Williams, died. The other, Billy Jones, was severely injured. Investigation led to the arrest of Tarlene Williams, who confessed that she set the fires after she had fought with Billy Jones for having another woman in the house.
Williams was charged with premeditated first-degree murder or, in the alternative, felony murder; attempted first-degree murder; and arson. Following plea negotiations, Williams pled no contest to felony murder, which carried a life sentence with no possibility of parole for 20 years. The State dismissed the attempted murder and arson charges. The Petition to Enter Plea of Nolo Contendere signed and filed with the district court by Williams specifically stated in bold type that she was satisfied with the advice and help her attorney had given her. At the plea hearing on April 15, 2008, the district court questioned Williams at length about her understanding of the plea negotiations and the consequences of entering a no contest plea, including her discussions with her attorney. Several off-the-record discussions with her attorney were required to complete the entiy of the plea; however, Williams did indicate her satisfaction with her attorney and did enter a no contest plea to felony murder.
Prior to sentencing, on May 28, 2008, Williams’ counsel filed a motion to withdraw plea, stating only, “[I]n support of said motion defendant states, ‘. . . I don’t believe that taking the plea is the best for me.’ ” A hearing on the motion was held on June 6, 2008. At the hearing, counsel for Williams told the court that the language quoted in the motion to withdraw plea was from a letter to him from Williams. Further, counsel stated:
“I would also put into the record a previous letter that she wrote to me [in] which she states, [‘]after a lengthy discussion with my family members, it would appear that this was not done with my best interest in mind, rather as a quick resolution for you[’] — you referring to me, Your Honor — [‘]and the State of Kan sas. Therefore, I would like to withdraw my plea agreement.[’] That was previous to the letter that I’ve quoted in the motion to withdraw.”
Counsel then encouraged the court to hear directly from Williams and the court agreed.
Williams addressed the court, saying, “My lawyer’s talking about premeditation, but it wasn’t premeditation and first-degree murder. I don’t believe that I should have to get no first-degree murder because it wasn’t that. I mean, involuntary manslaughter or something like that, but not no first-degree murder ‘cause, you know, I was ran up out of my own house.” The court explained that Williams had not pled no contest to an intentional act of killing someone, but to intentionally setting a fire that resulted in a death. Williams stated that she was concerned that the papers said that once she pled, she could not appeal, and that is what led her to question tire plea with the court. The district court told Williams that she could appeal the court’s ruling (on the motion to withdraw the plea) and she could appeal her no contest plea.
The court stated that Williams had not said “anything of a legal nature that would support me [withdrawing the plea].” The court then inquired of the State, and the prosecutor argued that Williams had not stated a legal reason amounting to good cause for a plea withdrawal. The court did not inquire of Williams’ counsel, who did not step forward with any argument. The court found that “based upon my recollections of the plea and the no contest plea petition, it was a voluntarily and freely given plea and you were not coerced,” and that Williams understood what she was doing and why she was doing it. The court did not address Williams’ claim that her lawyer had not acted in her best interests in advising her to plea. The court denied Williams’ motion. Williams was sentenced to life with no possibility of parole for 20 years.
The withdrawal of a plea of guilty or nolo contendere is governed by K.S.A. 22-3210(d):
“(d) A plea of guilty or nolo contendere, for good cause shown and within the discretion of die court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
In State v. White, 289 Kan. 279, 284-85, 211 P.3d 805 (2009), the court explained the standard of review of a ruling on a motion to withdraw a plea entered before sentencing:
“K.S.A. 22-3210(d) addresses the withdrawal of a no contest or guilty plea. It establishes two standards for the district court. At any time before sentencing, a court may permit a plea to be withdrawn ‘for good cause shown and within the discretion of the court.’ After a sentence has been adjudged, the court may permit a plea withdrawal only ‘[t]o correct manifest injustice.’ K.S.A. 22-3210(d). This case presents a situation in which the lesser, ‘good cause’ standard applies.
“In considering if this standard has been met, White urges this court to apply an unlimited standard of review, contending that this issue involves statutory interpretation. It is well established, however, that in reviewing a presentence denial of a motion to withdraw plea, an appellate court utilizes an abuse of discretion standard of review, as suggested by the language of K.S.A. 22-3210(d). But, as this court has explained, in order for the district court’s decision to receive the full measure of that standard’s deference, it must have been based upon a correct understanding of the law. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006); see State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008); State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). The defendant bears the burden of establishing the abuse of discretion. Schow, 287 Kan. at 541.
“In determining whether the defendant has shown good cause to permit the withdrawal of a plea, the district court should consider whether: ‘(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.’ Schow, 287 Kan. at 546 (citing Edgar, 281 Kan. at 36); see State v. Adams, 284 Kan. 109, 114, 158 P.3d 977 (2007); State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003).”
The appellant’s argument is simple and straightforward. Pointing to the three factors set out in Edgar and Schow, she points out that the first responsibility of the district court in determining whether the defendant has shown good cause to withdraw her plea is to consider whether she has been represented by competent counsel. She argues that, despite the motion alleging that the plea had not been in her best interest, the district court failed to even inquire into competence of her counsel. Moreover, she argues, the district court also ignored the second inquiry regarding whether she had been misled, coerced, mistreated, or unfairly taken advantage of.
The State argues that the district court addressed the issue with which Williams indicated she was concerned — whether she had been convicted of a crime that required premeditation. It argues that Williams’ remarks indicated she was not really concerned about the representation she had received and, therefore, the district court need not have addressed that issue.
In our recent case of State v. Aguilar, 290 Kan. 506, 231 P.3d 563 (2010), we considered both the provenance and the application of the three factors set out above. Noting that we had recently referred to them as the “Edgar factors,” we pointed out that their origin actually far predated tibe Edgar case. 290 Kan. at 511. Most important for purposes of this discussion, moreover, is that when the factors were developed by the court for review of plea withdrawal decisions, our modern code of criminal procedure and the statute it contains specifically addressing motions to withdraw guilty pleas had not yet been adopted. Aguilar clarified that the standard of review of motions to withdraw pleas is the statutory standard:
“Our previous inconsistent adherence to the Edgar factors to inform the standard for considering motions to withdraw pleas — regardless of whether the statutory language requires good cause or manifest injustice — has no doubt been confusing for practitioners and the district bench. In Schow, we finally and explicitly recognized the distinction drawn in the statutory language, characterizing good cause for presentence motions as a lesser standard’ for a defendant to meet, when compared to manifest injustice for a defendant advancing a post-sentence motion. Schow, 287 Kan. at 541.” Aguilar, 290 Kan. at 512.
The court went on to say this about the future of the “Edgar factors”:
“The Edgar factors remain viable benchmarks for judicial discretion but reb-anee on them to the exclusion of other factors has not only conflated the good cause and manifest injustice standards of K.S.A. 22-3210(d) but also may have overemphasized the role of plea counsel’s competence in deciding presentence plea withdrawal motions. . . .
“. . . All of the Edgar factors need not apply in a defendant’s favor in every case, and other factors may be duly considered in the district judge’s discretionary decision on the existence or nonexistence of good cause.” Aguilar, 290 Kan. at 512-13.
While Aguilar was a case about the representation provided the appellant and whether that representation served as good cause to allow her to withdraw her plea, we do not believe that is what this case is about. In this case, the district judge heard directly from the appellant at the motion hearing, and the appellant’s concerns were the nature of the plea she had entered, not her attorney’s performance. Initially, she complained that she should not get convicted of first-degree murder because there was no premeditation. The district court judge explained that she pled to felony murder, which was based upon intentionally setting a fire that resulted in a death, not upon premeditated murder. She responded that she then understood the difference and was “okay” with that understanding.
Next, Williams told the district court she was concerned with the amount of time it had taken for the fire department to respond to the fire. When the district court pointed out that this concern had nothing to do with the plea, Williams returned to talking about the difference between premeditated first-degree murder and felony murder and again indicated she had not previously understood the difference but that she did understand it now. Then the district court went on to address her next concern, her appeal rights. Again, she indicated that she understood her plea better now.
Nothing in Williams’ discussion with the judge indicated that she was concerned with the representation provided by her attorney beyond the fact that she had a misunderstanding about what she had pled to — a misunderstanding that had now been clarified to her satisfaction. In fact, the judge’s final question to Williams after denying her motion was, “Do you understand what I’m doing and why?” to which she responded, “Now I do, yes.” We see no abuse of discretion in the district court’s conclusion that she had not shown good cause to withdraw her plea.
Williams makes an additional argument in support of her contention that the trial court failed to make the proper inquiries during the motion hearing. She points to State v. Vann, 280 Kan. 782, 127 P.3d 307 (2006), and State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), for the proposition that the district court had an independent duty to inquire further after the defendant raised the potential of a conflict of interest between herself and her counsel. In Vann, the defendant had filed several motions, including one to have his court-appointed counsel replaced and one to proceed pro se. The district court had failed to address any of these motions. This court found:
“ ‘It is the task of the district judge to insure that a defendant’s Sixth Amendment right to counsel is honored. [Citation omitted.]’ State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.’ 266 Kan. at 979 (citing Wood v. Georgia, 450 U.S. 261, 272, 67 L. Ed. 2d 220, 101 S. Ct. 1097 [1981] ). Likewise, ‘where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated.’ State v. Jenkins, 257 Kan. 1074, 1083-84, 898 P.2d 1121 (1995). ‘A trial court abuses its discretion if it fails to inquire further after becoming aware of a potential conflict between an attorney and client.’ State v. Carver, 32 Kan. App. 2d 1070, 1078, 95 P.3d 104 (2004) (citing Taylor, 266 Kan. at 978).” 280 Kan. at 789.
Williams sets this issue out as a separate error by the trial judge, subject to an abuse of discretion standard of review. The State agrees with the standard of review but maintains that Williams did not complain about her attorney at the hearing on the motion to withdraw and so the trial court was not remiss in failing to address the issue. We agree with the State’s assessment and see no error in the district court’s failure to address a nonexistent, possible conflict of interest between Williams and her attorney.
The decision of the district court is affirmed.
Davis, C.J., not participating.
Larson, S. J., assigned. | [
-47,
-24,
-60,
62,
9,
-31,
121,
-16,
-14,
-13,
-30,
83,
-25,
-8,
0,
121,
59,
29,
-43,
121,
81,
-89,
55,
89,
-74,
-69,
81,
85,
-68,
-37,
-12,
-65,
72,
32,
-54,
-59,
70,
-118,
37,
92,
-114,
29,
-119,
-32,
-127,
-117,
48,
35,
62,
15,
53,
-68,
-77,
43,
17,
-52,
-55,
109,
91,
-87,
72,
25,
-127,
15,
-97,
20,
-93,
-91,
-98,
-121,
88,
110,
-40,
49,
0,
-24,
115,
-90,
-106,
52,
79,
-119,
100,
-92,
99,
32,
-35,
-17,
-88,
-127,
55,
83,
-107,
38,
-7,
80,
65,
40,
-105,
-3,
61,
116,
45,
120,
111,
20,
93,
-20,
-120,
-49,
-76,
-79,
-117,
125,
6,
-5,
-21,
37,
96,
37,
-49,
102,
92,
67,
56,
-37,
-34,
-108
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Benjamin M. Kieler, of Kansas City, Kansas, an attorney admitted to the practice of law in Kansas in 1991.
On July 1,2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 21, 2009, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 1.7 (2009 Kan. Ct. R. Annot. 472) (conflict of interest); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On April 10, 2006, Cathy W. Irby retained the Respondent to represent her regarding two car accidents in which she was involved. The first car accident occurred on December 9, 2004, the second car accident occurred on September 10,2005. Both of the other drivers readily admitted fault and were, coincidentally, both insured by American Family Insurance. Ms. Irby was insured by State Farm Insurance.
“3. After Ms. Irby retained the Respondent, the Respondent failed to properly communicate with Ms. Irby regarding the status of the cases. Additionally, the Respondent failed to take appropriate action to advance her causes.
“4. On June 29, 2006, Lazell Williams of American Family Insurance wrote to the Respondent and requested that he provide information regarding Ms. Irby’s condition. The Respondent failed to offer any evidence that he responded to this letter.
“5. On July 26, 2006, Pat Mann of American Family Insurance wrote to the Respondent and requested that he provide medical bills and records regarding Ms. Irby. The Respondent did not respond to Ms. Mann’s letter nor did he provide the requested records to American Family Insurance.
“6. On September 29, 2006, Ms. Mann again wrote to the Respondent regarding Ms. Irby’s case. Ms. Mann questioned whether the Respondent continued to represent Ms. Irby. Again, the Respondent did not respond in writing to Ms. Mann’s letter and he failed to introduce any evidence of his response, if any occurred.
“7. On December 9, 2006, the statute of limitations regarding Ms. Irby’s first car accident expired. The Respondent failed to preserve Ms. Irby’s claim by fifing suit in her behalf prior to the running of the statute of limitations.
“8. On December 20, 2006, Ms. Mann again wrote to the Respondent requesting records. The Respondent made no response.
“9. Apparentiy, in March, 2007, Ms. Mann called and left a message at die Respondent’s law firm. In response, the Respondent’s partner at the time, Donald M. McLean wrote to Ms. Mann. In his response, Mr. McLean acknowledged die running of the statute of limitations regarding Ms. Irby’s claim related to her December 9, 2004, car accident.
“10. At some point in approximately March, 2007, Ms. Irby spoke by telephone with the Respondent. The Respondent acknowledged to Ms. Irby that he failed to file suit within the statute of limitations and her action regarding the December 9, 2004, car accident was barred by the statute of limitations. The Respondent told Ms. Irby that the only way she could receive any compensation for ber injuries sustained in that accident was to sue him for malpractice. He told her that it was ‘not a big deal,’ that he has insurance, and that is why he has insurance. The Respondent was insured by The Bar Plan.
“11. The Respondent advised Ms. Irby to hire an attorney to represent her in the malpractice action. The Respondent suggested two lawyers that Ms. Irby could hire to represent her in the action against him. Ms. Irby did not feel comfortable retaining either of the attorneys suggested by the Respondent. Unfortunately, Ms. Irby did not hire an attorney to represent her in the malpractice claim against the Respondent.
“12. On April 2, 2007, Jayme Brown of State Farm Insurance -wrote to Ms. Irby and notified her that the inter-company arbitration filed against American Family Insurance was completed. Ms. Brown informed Ms. Irby that the arbitra tion panel made no recovery to either party. Ms. Brown informed Ms. Irby that she was free, however, to pursue her claim independently.
“13. “On June 7, 2007, Allison J. Price of The Bar Plan wrote to Ms. Irby regarding her malpractice claim against the Respondent. Ms. Price informed Ms. Irby that she had requested that the Respondent provide her with certain information. The Respondent failed to timely provide the information that Ms. Price requested.
“14. On June 26, 2007, Ms. Irby spoke by telephone with the Respondent. Ms. Irby terminated the Respondent’s representation and directed him to prepare her files so that she could pick them up. The Respondent prepared Ms. Irby’s file and wrote her a letter. In the letter, the Respondent stated, T want to remind you that I have not taken any action on your second claim since the denial of the first claim was received.’ Ms. Irby’s first claim was not denied, it was withdrawn by the Respondent’s firm due to the expiration of the statute of limitations due to the Respondent’s negligence.
“15. After Ms. Irby fired the Respondent, she attempted to hire an attorney to represent her regarding the second car accident but for reasons not completely known, faded to do so. On September 10,2007, the statute of limitations regarding Ms. Irby’s second car accident expired. No suit was filed in behalf of Ms. Irby regarding the second car accident.
“16. On January 31, 2008, Ms. Irby filed a complaint with the Disciplinary Administrator’s office. Marty Jackson, attorney, was appointed to investigate the matter.
“17. On February 25, 2008, the Respondent provided a written response to Ms. Irby’s complaint. In his response, the Respondent admitted that he faded to file the first of Ms. Irby’s two car accident claims within the statute of limitations. The Respondent faded to acknowledge, however, that he faded to take appropriate action on Ms. Irby’s second car accident claim during the 14 months that he represented Ms. Irby.
“CONCLUSIONS OF LAW
“1. At the hearing on this matter, the Respondent stipulated that he violated Kan. Sup. Ct. R. 211(b) by failing to file an Answer to the Formal Complaint filed by the Disciplinary Administrator’s office. The Respondent, however, denied that he violated KRPC 1.3 and KRPC 1.4, as alleged in the Formal Complaint. Additionally, the Respondent denied that he violated KRPC 1.7, as discussed during the hearing.
“2. It is appropriate to consider violations not specifically included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Buffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied 391 U.S. 961, 88 S. Ct. 1833, 20 L. Ed. 2d 874 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Ruffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses.... Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but tire state is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses.
‘Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Ruffalo, and held in accordance with established precedent that the state need not set forth in its complaint the specific disciplinary rules allegedly violated . . ., nor is it required to plead specific allegations of misconduct.... What is required was simply stated therein:
“ We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.’ ” 235 Kan. at 458-59.
Thus, only when the Formal Complaint alleges facts that would support findings of violations of additional rules, will considering additional violations be allowed. In this case, the Formal Complaint details that the Respondent failed to preserve Ms. Irby’s claim by filing suit regarding [the] first car accident. The Formal Complaint also details that the Respondent instructed Ms. Irby to make a claim with his malpractice carrier regarding his conduct. The Hearing Panel concludes, therefore, that the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 1.7. Thus, in the opinion of the Hearing Panel, the additional violation of KRPC 1.7 should be considered.
“3. After careful consideration of the complete record, the Hearing Panel concludes that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.7, and Kan. Sup. Ct. R. 211(b), as detailed below.
“4. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his client in this case. The Respondent failed to provide diligent representation to Ms. Irby, because the Respondent failed to act with reasonable diligence and promptness in representing his client, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“5. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to keep Ms. Irby advised regarding the status of the representation. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“6. Concurrent conflicts of interests are fully defined in KRPC 1.7. That rule provides:
‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be direcdy adverse to another client;
(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. ‘(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.’ In this case, the Respondent violated KRPC 1.7 when he continued to represent Ms. Irby after her malpractice claim ripened, because the Respondent’s representation of Ms. Irby was in conflict with his own interests. Though the Respondent admitted that Ms. Irby’s malpractice claim against him created a conflict, he failed to cure the conflict by complying with KRPC 1.7(b). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.7.
“7. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) providefs] the requirements:
‘The Respondent shall serve an answer upon the Disciplinaiy Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint and by failing to file a written Answer to the Supplement to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’)- Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide diligent representation, to provide adequate communication, and to avoid conflicts of interests. Additionally, the Respondent violated his duty to die legal profession to comply with the Supreme Court rules.
“Mental State. The Respondent negligentíy and knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Ms. Irby and the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in this case, found the following aggravating factors present:
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent engaged in a bad faith obstruction of the disciplinary proceeding by intentionally fading to file an Answer to the Formal Complaint as required by court rule and as requested by the Disciplinary Administrator’s office.
“Refusal to Acknowledge Wrongful Nature of Conduct. In his written response to the initial complaint, the Respondent refuses to acknowledge that he was dilatory regarding Ms. Irby’s claim related to her second car accident. The Respondent had that case for 14 months. During that time, he took no action to advance her cause. A majority of the Hearing Panel concludes that the Respondent refused to acknowledge the wrongful nature of his conduct.
“Vulnerability of Victim. Ms. Irby was vulnerable to the Respondent’s misconduct. Ms. Irby was not sophisticated in legal matters.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in the state of Kansas in 1991. Thus, the Respondent had been practicing law for a period of 15 years at the time the misconduct began. The Hearing Panel concludes that the Respondent had the benefit of substantial experience in the practice of law at the time the misconduct occurred. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. It does not appear that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Remorse. A minority of the Hearing Panel concludes that the Respondent expressed genuine remorse for his conduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘6.23 Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury
. or potential injury to a client, the public, or the legal system.
‘7.3 Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator argued that the Hearing Panel should recommend that the Respondent be suspended if the Hearing Panel concludes that the Respondent engaged in the misconduct knowingly. The Disciplinary Administrator argued, alternatively, that the Hearing Panel should recommend that the Respondent be censured and the censure should be published, if the Hearing Panel concludes that the Respondent negligently engaged in the misconduct. The Respondent argued that the Hearing Panel should dismiss the case against him and recommend no discipline.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.
“As an aside, it appears as though after the Respondent provided Ms. Irby with her original file in June, 2007, he retained only a scanned copy rather than also a paper copy of Ms. Irby’s files. Additionally, it appears as though the Respondent’s records were lost due to a computer error, which may have been avoided if he had properly backed up the computer files or kept a paper copy of those files. While this is not the basis for any ethical violations found by the Hearing Panel, it certainly reinforces the conclusion reached by the Hearing Panel pertaining to the Respondent’s lack of diligence.
“Costs are assessed against the Respondent in an amount to be certified by the office of the Disciplinaiy Administrator.
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” 5 ” 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
With respect to the discipline to be imposed, the panel’s recommendation that the respondent be censured and that the censure be published in the Kansas Reports is advisory only and shall not prevent the court from imposing a different discipline. Supreme Court Rule 212(f) (2009 Kan. Ct. R. Annot. 337).
During oral argument before this court, respondent persisted in minimizing the seriousness of his conduct and attempted to shift responsibility for his actions to Ms. Irby. Absent from respondent’s demeanor at oral argument was an appreciation of the serious nature of the misconduct and the impact his actions had on his client. We also note that respondent’s failure to file an answer to the Disciplinary Administrator’s formal complaint demonstrates his indifference to our disciplinary procedures and is reflective of respondent’s overall apathy and insensitivity to the harm caused to Ms. Irby and the legal profession.
Conclusion and Discipline
It Is Therefore Ordered that Benjamin M. Kieler be suspended for a period of 1 year from the practice of law in the state of Kansas, effective upon the date of filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376) and the Disciplinary Administrator shall cause a hearing in accordance with Rule 219 to be held to determine the respondent’s fitness for reinstatement.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Davis, C.J., not participating.
John E. Sanders, District Judge, assigned. | [
-80,
-24,
-23,
-81,
-119,
33,
58,
34,
93,
-45,
119,
83,
-83,
-17,
-115,
127,
-45,
41,
81,
107,
-41,
-78,
115,
-64,
102,
-1,
-15,
-43,
-78,
127,
-12,
-68,
73,
48,
-118,
85,
6,
-54,
-123,
30,
-118,
6,
-120,
-16,
-39,
-63,
-96,
107,
-110,
13,
53,
47,
-29,
46,
51,
-29,
41,
72,
-2,
-83,
-63,
-111,
-37,
5,
123,
18,
-93,
4,
-104,
7,
92,
59,
-120,
57,
8,
-19,
50,
-90,
-118,
-28,
111,
-119,
9,
38,
98,
35,
1,
-91,
-84,
-100,
14,
124,
13,
-90,
-103,
81,
75,
8,
-106,
-103,
117,
18,
35,
-4,
-20,
69,
29,
-20,
15,
-53,
-44,
-111,
95,
-11,
-100,
-118,
-17,
-60,
52,
81,
-127,
-26,
95,
-41,
50,
27,
-98,
-96
] |
The opinion of the court was delivered by
Davis, C.J.:
Robert Robison, Jr., pleaded no contest to a charge of aggravated indecent liberties with a child. He was sentenced to life without the possibility of parole for 25 years, with lifetime post-release supervision. Robison appeals his life sentence. We affirm.
Facts
After negotiations between the defendant and the State involving two counts of aggravated indecent liberties with a child, one count was dismissed, and Robison entered his plea of no contest to one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). His motion for a downward du-rational departure was denied. He was sentenced to a mandatory life sentence without the possibility of parole for 25 years pursuant to K.S.A. 21-4643, “Jessica’s Law,” with lifetime postrelease supervision. He made no claim before the trial court that his sentence was unconstitutionally cruel or unusual. He now seeks to have this issue considered on appeal. We decline.
The sentence was imposed on Robison, already a registered sex offender, for lewd fondling or touching of D.M.L, a 9-year-old child, on or between August 11, 2007, and November 26, 2007. Evidence had also been presented on a second amended count of aggravated indecent liberties with D.M.L by Robison. That event had occurred after the date of the offense of conviction and was discovered by D.M.L.’s aunt as it was occurring on November 27, 2007. Investigation of that event eventually led to the discovery of the earlier act of conviction. The second count was withdrawn pursuant to negotiations leading to the nolo contendere plea.
In addition to his motion requesting a downward durational departure sentence, Robison also presented arguments for departure at his sentencing hearing. The district judge concluded, however, that none of the reasons asserted by Robison were substantial and compelling reasons to depart from the mandatory sentence. The judge also noted Robison’s indecent liberties conviction in 2000.
Robison appealed his sentence, arguing that the district court erred by denying his motion for a downward durational departure sentence. He also asked that we address his claim that the sentence imposed is cruel or unusual and must be set aside.
This court’s jurisdiction is under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).
Discussion
(1) Whether the mandatory minimum sentence in K.S.A. 21-4643 violates the Eighth Amendment to the United States Constitution and Section 9 of the Bill of Rights of the Kansas Constitution
Robison argues his life sentence violates the right against cruel or unusual punishment under Section 9 of the Bill of Rights of the Kansas Constitution and the prohibition of cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
The determination of whether a sentence is a cruel or unusual punishment is controlled by a three-factor test stated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). These factors include both legal and factual inquiries, and no one factor controls. Robison’s arguments fail. Recently in State v. Mondragon, 289 Kan. 1158, Syl. ¶ 2, 220 P.3d 369 (2009), State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199 P.3d 1265 (2009), and State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2, 194 P.3d 1195 (2008), this court held that a defendant’s argument that a life sentence imposed under the provisions of K.S.A. 21-4643 is a cruel or unusual punishment cannot be presented for the first time on appeal.
Just as in Mondragon, Thomas, and Ortega-Cadelan, Robison made no reference to any constitutional concerns during plea negotiations, in his written motion for downward durational departure, or at his sentencing hearing. Robinson concedes that he advanced his argument for the first time on appeal. Just like the defendant in Thomas, Robison
“did not address these factors before the district court, did not present evidence, and did not ask the court to make findings of fact or conclusions of law on the issue. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (litigant must object to inadequate findings of fact and conclusions of law before the trial court to preserve the issue for appeal); Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235).” Thomas, 288 Kan. at 159-60.
Moreover, just like the Thomas defendant, defendant Robison
“[c]onceding that he did not make the argument before the district court and recognizing the general rule that constitutional issues cannot be asserted for the first time on appeal, State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008), [defendant] urges application of one of the exceptions that recognize circumstances when an issue can be advanced for the first time on appeal. The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent die denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right.” 288 Kan. at 160.
Robison too, citing State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), argued in his brief that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right.
Notwithstanding this argument, Thomas noted:
“These same arguments were presented by another defendant and rejected by this court in Ortega-Cadelan, 287 Kan. at 161. Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He was sentenced under die same provision as applied to Thomas . . . 21-4643(a)(l), and received a mandatory fife sentence without the possibility of parole for 25 years and postrelease supervision for fife. Ortega-Cade-lan appealed his sentence and argued for the first time on appeal that his sentence constituted cruel or unusual punishment.” 288 Kan. at 160-61.
Thomas concluded:
“We declined to consider Ortega-Cadelan’s argument that the sentence offended the constitutional prohibition against cruel or unusual punishment. Citing the three-prong Freeman test, we noted the factors include both factual and legal questions. Despite the defendant’s attempt to focus on those factors that raised legal questions, we determined the factual aspects of the test could not be ignored because no single consideration controls the issue. As a result, we concluded that the factual aspects of the test must be considered by the district court before the question could be reviewed on appeal and so the issue was not properly before the court. 287 Kan. at 161.” 288 Kan. at 161.
We conclude that Mondragon, Thomas, and Ortega-Cadelan control. Robisons “argument that his life sentence pursuant to [K.S.A. 21-4643(a)(1)] is a cruel or unusual punishment, which was . . . not argued before the district court, cannot be presented for the first time on appeal.” 288 Kan. at 161.
(2) Whether the district court erred in denying Robison’s motion for a downward durational departure sentence
Robison claims that the district court erred by denying his request for a downward durational departure sentence. K.S.A. 21-4643(d) provides that the district “judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.”
Standard of Review
Contrary to Robison’s contention that this issue involves the interpretation of K.S.A. 21-4643(d), calling for an unlimited de novo review, the established standard of review is one of abuse of discretion. See Mondragon, State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), and Thomas, wherein we stated:
“On appellate review of this process, we apply a broad abuse of discretion standard because this issue involves the district court’s consideration and weighing of mitigating circumstances. Under this standard ‘ “[jjudicial discretion is abused when no reasonable person would take the view adopted by the district judge.” ’ Ortega-Cadelan, 287 Kan. at 165 (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005] ); see State v. Jones, 283 Kan. 186, 215-16, 151 P.3d 22 (2007) (same broad abuse of discretion standard applies to appellate review of weighing of aggravating and mitigating circumstances before imposing hard 50 sentence).” Thomas, 288 Kan. at 164.
In his departure motion, Robison asked the district court “to impose a departure sentence” based on four mitigators:
(1) Robison’s “capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. At the times of the offense Mr. Rob-ison was under the influence of drugs and alcohol.”
(2) Robison’s age was 33 at the time of the crime.
(3) Robison “has no significant criminal history. Other than his prior felony conviction for Indecent Liberties with a Child in 2000 Mr. Robison has had only minor misdemeanor offenses in his past.” (Emphasis added.)
(4) Robison “accepted responsibility for his actions and shows general remorse. Mr. Robison chose to.enter a plea in this case and not contest the state[’]s evidence at trial.”
Upon consideration of the four mitigating factors and arguments of counsel, the district court determined that the “mandatory sentence . . . will apply.” The court specifically made “the finding that there are not substantial and compelling reasons to sentence you otherwise.” The judge directly addressed the “under the influence” mitigator asserted by Robison:
“[Wjhile there may have been some mention regarding alcohol or some other substance being used this evening I do not believe that it is sufficient to grant the departure as requested. Even if there was some consumption on your part that ... is a voluntary act and you should be held responsible for your actions.”
The court later noted Robison’s indecent liberties conviction in 2000 and explicitly found that none of the reasons asserted by Rob-ison presented a substantial and compelling reason to depart.
In Thomas, we said that
“ ‘the statutory language regarding the consideration of mitigating circumstances is clear and unambiguous, stating tire judge shall impose a life sentence “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” ’ Ortega-Cadelan, 287 Kan. at 164 (quoting [K.S.A. 21-4643(d)j.... [A] two-step procedure applies: First, the judge reviews mitigating circumstances and, second, the judge determines if there are substantial and compelling reasons for a departure. 287 Kan. at 164.
“A review of the sentencing transcript convinces us that the district court considered all of Thomas’ arguments, acknowledged the mitigating circumstances asserted by Thomas, and explained why it chose to reject the request for a downward durational or dispositional departure. Reasonable people could agree with the district court’s assessment of whether the mitigating circumstances were substantial and compelling.
“The district court did not abuse its discretion by denying Thomas’ motion for a downward durational or dispositional departure sentence under K.S.A. 2006 Supp. 21-4643(d).” Thomas, 288 Kan. at 163-64.
Just as in Thomas, the district court followed the two-step procedure by considering the mitigating circumstances and by its determination that they were not substantial and compelling reasons for a departure. Reasonable people could agree with the district court’s assessment that the mitigating circumstances were not substantial and compelling. Here, as in Seward, 289 Kan. at 722, the defendant “demonstrated no abuse of discretion in the district judge’s denial of [his] departure motion” for a downward dura-tional departure sentence.
Affirmed. | [
112,
-24,
-35,
30,
26,
-95,
58,
48,
19,
-77,
-89,
83,
-95,
78,
0,
122,
59,
101,
85,
121,
-47,
-73,
119,
-15,
54,
-5,
-39,
93,
-77,
79,
-84,
-99,
8,
80,
-114,
117,
102,
-54,
88,
86,
-114,
3,
-104,
-40,
19,
2,
32,
107,
26,
14,
53,
-100,
-77,
42,
29,
-61,
9,
44,
27,
45,
88,
-79,
-5,
23,
94,
52,
-93,
-91,
-100,
39,
80,
38,
24,
57,
1,
-20,
51,
-122,
-126,
116,
39,
-117,
-32,
102,
98,
34,
61,
-41,
-67,
8,
15,
90,
61,
-26,
-104,
81,
99,
101,
-105,
-3,
84,
20,
41,
120,
-25,
-116,
21,
100,
-128,
-114,
-116,
-109,
-51,
61,
-58,
59,
-13,
33,
-127,
37,
-49,
-26,
76,
-41,
58,
-45,
-98,
-12
] |
The opinion of the court was delivered by
Johnson, J.:
S.M. originally presented this matter to the court as a petition for writ of mandamus, requesting an order releasing her from juvenile detention. In addition, the petition sought an order directing the Honorable Joseph D. Johnson to follow the contempt procedure mandated by K.S.A. 20-1201 et seq., as a condition precedent to enforcing the judge’s “school rule,” whereby a juvenile is ordered to serve 5 days in detention for each unexcused absence from school. Petitioner’s request for release from detention is now moot. However, the district court is directed to conform the implementation of any school attendance rule with the provisions of K.S.A. 2008 Supp. 38-2343, including the procedural requirements governing notice and hearing and the mandates governing the requisite findings for detaining a juvenile in a juvenile detention facility.
Factual and Procedural Overview
S.M., a juvenile, was charged with multiple violations in two juvenile offender cases in the Shawnee County District Court; Judge Johnson presides over such cases. Following her first appearance on November 4, 2008, Judge Johnson released S.M. on pretrial supervision, which included an order to attend school with no unexcused absences or tardies as a condition of that release. S.M. subsequently pled nolo contendere to certain counts in return for the dismissal of the remaining counts in the two cases.
At the sentencing hearing, the court services officer (CSO) told Judge Johnson that S.M. had violated the school rule by accumulating three unexcused absences. In addition to sentencing S.M. on the pleas, Judge Johnson entered an order which stated: “[S.M.] must report to the Juvenile Detention Center on 11/25/2008 for school violation on pretrial supervision (15 days)." The detention was to be served during breaks, when school was not in session.
On November 26, 2008, S.M. filed this original mandamus action requesting her release from detention and seeking an order directing that Judge Johnson follow the contempt procedure set forth in K.S.A. 20-1201 etseq. S.M. argued that detaining her without a hearing violated her right to due process. The petition was subsequently amended to substitute the State of Kansas as a respondent, in lieu of the district attorney.
Pursuant to Supreme Court Rule 9.01(c) (2009 Kan. Ct. R. An-not. 73), this court directed each of the respondents to file an answer to the petition. After additional orders from this court directing a response, Judge Johnson filed an answer asserting that the matter was moot because S.M. was no longer detained. Alternatively, the judge argued that his actions were authorized by K.S.A. 2008 Supp. 38-2361(f)(2), which provides for a sanction house placement for a verifiable probation violation.
Subsequently, this court issued an order which acknowledged that the request for release from detention was then moot, but finding that the question of whether Judge Johnson had complied with due process in implementing the school rule was unresolved and capable of repetition. Consequently, this court requested that the parties submit additional briefing which specifically addressed the following questions:
‘T. For what purpose and upon what authority was the juvenile ordered taken into custody and detained in the Juvenile Detention Center, e.g. as part of the original sentence upon adjudication; or as a sanction for probation violation; or as a sanction for violating the conditions of release prior to adjudication; or for some other purpose?
“2. What statutory procedures are mandated as a condition precedent to detaining the juvenile for the purpose identified in the first question?
“3. What process is constitutionally due the juvenile prior to ordering the detention for the identified purpose?
“4. What statutory procedures axe mandated during the term of the Detention? See e.g. K.S.A. 38-2361(f)(1) (seven day review) and K.S.A. 38-2361(f)(2) (hearing within 48 hours).”
Jurisdiction and Standard of Review
This court possesses jurisdiction for mandamus proceedings under Kan. Const, art. 3, § 3. Mandamus, as defined by K.S.A. 60-801, is: “[A] proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” Further, mandamus provides “authoritative interpretation^] of the law” helpful to public officials in conducting public business. Alpha Med. Clinic v. Anderson, 280 Kan. 903, 916, 128 P.3d 364 (2006). Ordinarily, a district judge’s discretion cannot be controlled by mandamus. However this court makes an exception where (1) a litigant, without a remedy on appeal, could be denied a legal right or privilege by the judge’s order; or (2) the petition presents an issue of great public importance and concern. 280 Kan. at 916. Notwithstanding S.M.’s completion of her court-ordered detention, the questions surrounding the implementation of the “school rule” are capable of repetition, and it is appropriate for us to provide guidance to district courts on the requirements for ordering juvenile detentions. See State v. Bennett, 288 Kan. 86, Syl. ¶ 2, 200 P.3d 455 (2009) (exception to mootness rule exists where a particular issue is capable of repetition and of public importance).
“The burden of showing a right to the relief sought is on the petitioner. Unless the respondent’s legal duty is clear, the writ should not issue.” Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 410, 197 P.3d 370 (2008). To the extent that this court is required to engage in questions involving statutory interpretation, review of those questions is unlimited. See Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009) (“Issues of statutory interpretation raise pure questions of law and are subject to this court’s unlimited review.”).
The Parties’ Additional Briefing
Purpose and Authority for Detention
In her supplemental brief, S.M. continues to assert that Judge Johnson relied on the court’s inherent contempt powers to detain her. However, respondent has never made that argument to this court, nor does the record support that contention. Accordingly, we will not discuss S.M.’s detention in the context of contempt of court, except to note that the exercise of contempt powers requires the court to strictly comply with the procedures set forth in K.S.A. 20-1204a, which it did not do in this case.
The district attorney’s supplemental brief candidly admits that the purpose and authority for S.M.’s detention upon which respondent now relies differs from that alleged in the answer. Apparently, respondent noted that the school absences predated the imposition of probation and, therefore, the absences could not have been a K.S.A. 2008 Supp. 38-2361(f)(2) verifiable violation of the probation conditions, which had not yet been imposed. The respondent’s justification is now based upon K.S.A. 2008 Supp. 38-2331(b)(10), that speaks to the detention of a juvenile who has violated “conditions of release,” which respondent suggests includes preadjudication release.
S.M. does not dispute that she could have been taken into custody, pursuant to K.S.A. 2008 Supp. 38-2330(c), for a perceived violation of the conditions of her preadjudication release, or that she could have been detained for violating a condition of release, pursuant to K.S.A. 2008 Supp. 38-2331(b)(10). Her complaint is that the court failed to follow the appropriate statutory procedures to effect such a detention.
Accordingly, the parties’ fluid arguments have now coalesced; they agree that the purpose of S.M.’s detention was a response to her violating a condition of preadjudication release. Likewise, the parties apparently agree that the authority for such a detention must flow from K.S.A. 2008 Supp. 38-2331(b)(10).
Mandated Statutory Procedures to Detain
S.M. does not analyze the procedure required to initially detain her. She apparently concedes that the court could impose reasonable conditions on her preadjudication release and that the CSO assigned to supervise her could have caused her to be arrested and detained in a juvenile detention facility, pursuant to K.S.A. 2008 Supp. 38-2330(c) and 38-2331(b)(10), for violating those preadju-dication conditions. Her complaint is that the court did not provide the hearing required by K.S.A. 2008 Supp. 38-2343(a) within 48 hours of being taken into custody.
Likewise, respondent summarily notes that K.S.A. 2008 Supp. 38-2331(b)(10) authorizes the placement of a juvenile in a detention facility for violating a condition of release, so long as that placement is pursuant to subsection (c) or (d)(1) of K.S.A. 2008 Supp. 38-2330 or subsection (e) of K.S.A. 2008 Supp. 38-2343. He then discusses the hearing required by K.S.A. 2008 Supp. 38-2343(e). The only mention of the initial requirements is a reference to the warrant or written statement requirements of K.S.A. 2008 Supp. 38-2330.
Constitutional Due Process
Although S.M. purported to raise a constitutional due process challenge in her petition, in her brief she makes a conclusoiy statement that “a judicial determination of probable cause must be afforded a person arrested without warrant to extend a restraint on his liberty.” She does not relate that declaration to the procedures utilized in this case. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (point incidentally raised, but not argued, deemed abandoned). Moreover, S.M. does not assert that the notice and hearing requirements set forth in the applicable statutes violate due process.
The respondent acknowledges that the detention of a juvenile implicates constitutional due process. However, citing to Schall v. Martin, 467 U.S. 253, 265, 81 L. Ed. 2d 207, 104 S. Ct. 2403 (1984), respondent argues that a juvenile’s interest in liberty is qualified by “the recognition that juveniles, unlike adults, are always in some form of custody. [Citation omitted.]” Nevertheless, respondent contends that the juvenile’s procedural due process rights are adequately protected by the existing statutory procedure. Consequently, our analysis will focus on compliance with the applicable statutes, without considering the constitutionality of those statutes.
Procedures Mandated During Detention
Both parties provided cursory responses to this court’s question as to the statutory procedures mandated during the term of a juvenile’s detention. S.M.’s three-sentence response stated: “S.M. was entitled to a detention hearing upon her detention. A detention hearing was not held. K.S.A. 38-2361(f)(2) requires a detention hearing within 48 hours to determine whether continued detention is warranted.”
Respondent utilized four sentences. First, respondent advised us that the juvenile code does not require “continued review or additional hearings once K.S.A. 2008 Supp. 38-2343(e) has been satisfied.” Then, noting that the court’s inquiry directed the parties’ attention to K.S.A. 2008 Supp. 38-2361(f)(l) and (2), respondent stated that those provisions only apply when a juvenile is sent to a sanction house as part of the sentence or for violating the terms of the sentence and that neither situation applied in this case.
Required Procedures for Detention for Violating the School Rule
S.M. complains that, pursuant to respondent’s standing “school rule,” a juvenile is automatically sent to the juvenile detention cen ter to serve 5 days in detention for each day that the juvenile has an unexcused absence or tardy at school. At oral argument, respondent’s counsel argued that the record did not support the allegation that such a standing rule exists, albeit counsel did not affirmatively deny the rule’s existence. Interestingly, respondent’s brief stated that S.M. “was placed on pre-trial supervision with court services, which included the school rule,” and further explained that “[t]he school rule is a rule that the juvenile will serve five days in juvenile detention for every unexcused absence or tardy from school.” Moreover, the brief advised that S.M.’s compliance with the school rule was a condition for her preadjudication release. Therefore, given respondent’s acknowledgement that the rule existed in this case, a review of the procedure required to effectuate such a rule is warranted.
To be clear, based on the parties’ latest clarification of the circumstances of this case, we are addressing the placement of a juvenile in a detention facility for a violation of a condition of pread-judication release. We are not dealing with an order of contempt; we are not considering the procedure for a sanction house placement as part of a sentence; and we are not presented with a sanction for the violation of a probation condition. Likewise, it will be helpful to keep in mind that we are considering the specific subset of juveniles taken into custody who are ordered to be detained in a juvenile detention facility, rather than in a youth residential facility or some other temporary custody arrangement.
While one might well applaud the motive behind the fashioning of such a “school rule,” its implementation must nevertheless comport with the applicable statutes governing the custody and detention of juveniles. K.S.A. 2008 Supp. 38-2330 addresses the first step in the process — taking a juvenile into custody. The first subsection defines when a law enforcement officer may take a juvenile into custody, such as when the officer observes the juvenile committing an offense, knows of the existence of a warrant, or when the officer has been given a written statement by a supervising CSO that the juvenile has violated the condition of the juvenile’s release. K.S.A. 2008 Supp. 38-2330(a)(1)-(6).
Here, the parties focus on subsection (c), which provides:
“Any court services officer, juvenile community corrections officer or other person authorized to supervise juveniles subject to this code, may arrest a juvenile without a warrant or may request any other officer with power of arrest to arrest a juvenile without a warrant by giving the officer a written statement setting forth that the juvenile, in the judgment of the court services officer, juvenile community corrections officer or other person authorized to supervise juveniles subject to this code, has violated the condition of the juvenile’s release. The written statement delivered with the juvenile by the arresting officer to the official in charge of a juvenile detention facility or other place of detention shall be sufficient warrant for the detention of the juvenile.” K.S.A. 2008 Supp. 38-2330(c).
To paraphrase the provision, a supervising CSO can arrest a juvenile. Alternatively, a supervising CSO can request that a law enforcement officer (LEO) arrest the juvenile by giving the LEO a written statement that the CSO believes the juvenile has violated his or her conditions of release.
After a juvenile is taken into custody, the next step is to determine where the juvenile will be placed. In that regard, K.S.A. 2008 Supp. 38-2331 sets forth the criteria for detaining a juvenile in a juvenile detention facility. See K.S.A. 2008 Supp. 38-2302(1) (defining “juvenile detention facility”)- K.S.A. 2008 Supp. 38-2331(b) provides that a juvenile may be placed in a juvenile detention facility if one or more of the enumerated conditions are met. The condition which the parties contend is applicable to this case is where the juvenile has violated the conditions of release. K.S.A. 2008 Supp. 38-2331(b)(10).
Apparently, the parties refer to these provisions to inform us that S.M.’s supervising CSO could have effected her arrest for the unexcused school absences, during the period of S.M.’s preadju-dication release, and could then have caused her to be placed in a juvenile detention facility. However, that is not what happened in this case. S.M. was not taken into custody until after she appeared at the sentencing hearing, where the CSO verbally informed the court of S.M.’s violations of the “school rule” while on pretrial supervision. The court then executed a custody slip, dated November 25, 2008, and directed to the Shawnee County Department of Corrections, ordering that S.M. be forthwith taken into custody for a “violation of school rule” and held until November 30, 2008, at 3:00 p.m.
Nevertheless, S.M. does not contend that a judge is without authority to order that a juvenile be taken into custody for a violation of a condition of preadjudication release. The statutes certainly suggest that such authority exists. As noted, K.S.A. 2008 Supp. 38-2330(a) contemplates the existence of a warrant to authorize a LEO’s arrest and detention of a juvenile. K.S.A. 2008 Supp. 38-2302(s) defines a warrant as “a written order by a judge of the court directed to any law enforcement officer commanding the officer to take into custody the juvenile named or described therein.”
S.M.’s principal argument centers on the procedure which is statutorily mandated — and perhaps constitutionally required — after a juvenile has been taken into custody and detained. That statutory procedure is found in K.S.A. 2008 Supp. 38-2343, which provides:
“(a) Length of detention. Whenever a juvenile is taken into custody, the juvenile shall not remain in detention for more than 48 hours, excluding Saturdays, Sundays and legal holidays, from the time the initial detention was imposed, unless the court determines after hearing, within the 48-hour period, that further detention is necessary.
“(b) Waiver of detention hearing. The detention hearing may be waived in writing by the juvenile and the juvenile’s attorney with approval of the court. The right to a detention hearing may be reasserted in writing by the juvenile or the juvenile's attorney or parent at anytime not less than 48 hours prior to trial.
“(c) Notice of hearing. Whenever it is determined that a detention hearing is required the court shall immediately set the time and place for the hearing. Except as otherwise provided by subsection (c)(1) of K.S.A. 2008 Supp. 38-2332, and amendments thereto, notice of the detention hearing shall be given at least 24 hours prior to the hearing, unless waived.
“(d) Oral notice. When there is insufficient time to give written notice, oral notice may be given and is completed upon filing a certificate of oral notice with the clerk.
“(e) Hearing, finding bond. At the time set for the detention hearing if no retained attorney is present to represent the juvenile, the court shall appoint an attorney, and may recess the hearing for 24 hours to obtain attendance of the attorney appointed. At the detention hearing, if the court finds the juvenile is dangerous to self or others, the juvenile may be detained in a juvenile detention facility or youth residential facility which the court shall designate. If the court finds the juvenile is not likely to appear for further proceedings, the juvenile may be detained in a juvenile detention facility or youth residential facility which the court shall designate or may be released upon the giving of an appearance bond in an amount specified by the court and on the conditions the court may impose, in accordance with the applicable provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, and amendments thereto. In the absence of either finding, the court shall order the juvenile released or placed in temporary custody as provided in subsection (f).
“In determining whether to place a juvenile in a juvenile detention facility pursuant to this subsection, the court shall consider all relevant factors, including, but not limited to, the criteria listed in K.S.A. 2008 Supp. 38-2331, and amendments thereto. If the court orders the juvenile to be detained in a juvenile detention facility, the court shall record the specific findings of fact upon which the order is based.
“If detention is ordered and the parent was not notified of the hearing and did not appear and later requests a rehearing, the court shall rehear the matter without unnecessary delay.
“(f) Temporary custody. If the court determines that detention is not necessary but finds that release to the custody of a parent is not in tire best interests of the juvenile, the court may place the juvenile in the temporary custody of a youth residential facility, some other suitable person willing to accept temporary custody or the commissioner. Such finding shall be made in accordance with K.S.A. 2008 Supp. 38-2334 and 38-2335, and amendments thereto.
“(g) Audio-video communications. Detention hearings may be conducted by two-way electronic audio-video communication between the juvenile and the judge in lieu of personal presence of the juvenile or die juvenile’s attorney in the courtroom from any location within Kansas in the discretion of the court. The juvenile may be accompanied by die juvenile’s attorney during such proceedings or the juvenile’s attorney may be personally present in court as long as a means of confidential communication between the juvenile and juvenile’s attorney is available.”
The statute begins by clearly limiting the period of detention to a maximum of 48 hours (exclusive of weekends and holidays), unless within 48 hours of the initial detention the court conducts a hearing and finds that further detention is necessary. The limitation on the length of detention and the requirement for a detention hearing are applicable “[wjhenever a juvenile is taken into custody.” K.S.A. 2008 Supp. 38-2343(a). There is no stated exception for the circumstance where the juvenile is taken into custody pursuant to the court’s order, rather than pursuant to a CSO arrest. Here, S.M. was ordered to be detained for 15 days, to be served at times that school was not in session, with the initial custody slip providing for a 5-day period of detention. The court did not conduct a detention hearing within the first 48 hours of that detention.
Subsection (b) allows for a waiver of the detention hearing. However, the provision states that the waiver is to be “in writing by the juvenile and the juvenile’s attorney with approval of the court.” K.S.A. 2008 Supp. 38-2343(b). S.M. and her attorney deny having waived the detention hearing, and the record before us does not contain a court-approved, written waiver, signed by both S.M. and her attorney.
Subsections (c) and (d) discuss providing notice of any required detention hearing. Respondent’s brief proffers the argument that in this case the sentencing hearing also served as the required detention hearing and that S.M. had plenty of prior notice that the sentencing hearing would be held. Obviously, notice that the court would be conducting a sentencing hearing does not put the juvenile on notice that the court would also be considering a theretofore unasserted allegation of a violation of preadjudication supervision and deciding whether detention beyond 48 hours for such a violation was necessary. However, we need not address in detail the procedural issue of notice. The remaining provisions of the statute reveal a more fundamental flaw in the implementation of the “school rule” which could not have been solved by strict compliance with the notice provisions.
Subsection (e) first clarifies that the juvenile has a right to have an attorney present for the detention hearing. Then, the statute directs the court to consider whether it can make one of two specific findings: either that the “juvenile is dangerous to self or others,” or that the “juvenile is not likely to appear for further proceedings.” K.S.A. 2008 Supp. 38-2343(e).
If the court makes the finding that the juvenile is dangerous, it has two options: detain the juvenile in a juvenile detention facility or detain the juvenile in a youth residential facility. See K.S.A. 2008 Supp. 38-2302(t) (defining “youth residential facility”). If the court makes the finding that the juvenile is unlikely to appear for further proceedings, it has three options: detain the juvenile in a juvenile detention facility; detain the juvenile in a youth residential facility; or release the juvenile on bond with or without conditions.
However, “[i]n the absence of either finding, the court shall order the juvenile released or placed in temporaiy custody as provided in subsection (f).” (Emphasis added.) K.S.A. 2008 Supp. 38-2343(e). Clearly, without a finding that the juvenile is dangerous to self or others or a finding that the juvenile is unlikely to appear for further proceedings, the court does not have the option of ordering the juvenile detained in a juvenile detention facility. In other words, a finding that the juvenile violated a condition of release, e.g., the “school rule,” is not sufficient, standing alone, to authorize the court to order 5 days’ detention in a juvenile detention facility.
That is not to say that the fact the juvenile violated a condition of release has no bearing on the outcome of a detention hearing. K.S.A. 2008 Supp. 38-2343(e) directs the court to consider all relevant factors, including the criteria listed in K.S.A. 2008 Supp. 38-2331, when determining whether to place a juvenile in a juvenile detention facility. As noted, violating a condition of release is a criterion for juvenile detention facility placement set forth in K.S.A. 2008 Supp. 38-2331(b)(10).
However, the court does not get to the point of considering the criteria for juvenile detention facility placement until it has established that such a placement is an authorized option, i.e., until it has made a specific finding either that the juvenile is dangerous or that the juvenile is unlikely to reappear. Only then does the court consider the K.S.A. 2008 Supp. 38-2331(b) criteria, when it is choosing among tire authorized options: placement at a juvenile detention facility; placement at a youth residential facility; or, in the case of a juvenile unlikely to appear, release on bond.
Here, we question whether the court intended to hold a detention hearing in conjunction with the sentencing hearing. Nevertheless, even if we were to accept the argument that the sentencing hearing was intended to fulfill the detention hearing requirement of K.S.A. 2008 Supp. 38-2343, the court failed to properly document the findings required in a detention hearing. “If the court orders the juvenile to be detained in a juvenile detention facility, the court shall record the specific findings of fact upon which the order is based.” K.S.A. 2008 Supp. 38-2343(e).
Moreover, in this instance, the record does not contain evidence to support the requisite finding. Respondent’s brief makes the argument that a juvenile’s failure to attend school is evidence that the juvenile is unlikely to appear for further proceedings. However, respondent does not explain what further proceedings remained to be conducted at which S.M. was unlikely to appear. The detention was ordered at the sentencing hearing. Presumably, barring a violation of the probation conditions, there would be no further proceedings. Further, respondent does not explain how detaining a juvenile for a fixed term of 15 days, to be served at periodic intervals when school was not in session, resolves the problem of a child who is not likely to appear for further proceedings.
Accordingly, in this case, the order to detain S.M. in a juvenile detention facility for a total of 15 days, with an initial detention of 5 days, was not supported by the requisite statutory findings. More generally, a local court rule which imposes a sanction of 5 days’ detention in a juvenile detention facility for each violation of a preadjudication supervision condition prohibiting unexcused absences from school is not a statutorily authorized sanction. To detain the juvenile in a juvenile detention facility for more than 48 hours, exclusive of Saturdays, Sundays, and legal holidays, the court must conduct a detention hearing pursuant to K.S.A. 2008 Supp. 38-2343, and must make an initial finding, based on substantial and competent evidence, that the juvenile is dangerous to self or others or that the juvenile is not likely to appear for further proceedings.
Accordingly, we grant the petition for mandamus in part and direct that the respondent is to follow the statutory mandates governing the detention of a juvenile in a juvenile detention facility. | [
-16,
-24,
-51,
92,
11,
97,
50,
-106,
67,
-13,
100,
83,
43,
-38,
4,
123,
19,
111,
21,
121,
-63,
-73,
103,
-63,
54,
-13,
-48,
-43,
-69,
111,
-4,
-105,
74,
-80,
-118,
-107,
70,
-54,
-59,
-44,
-114,
3,
-119,
-31,
82,
3,
44,
107,
26,
15,
-75,
46,
-29,
110,
24,
82,
-24,
105,
-37,
-25,
-51,
-47,
-69,
21,
127,
22,
-69,
-92,
-106,
-121,
80,
111,
-40,
56,
8,
-24,
51,
-126,
66,
52,
75,
-37,
-87,
102,
98,
3,
-84,
-26,
-68,
-24,
94,
22,
-99,
-26,
-101,
89,
107,
-124,
-106,
-68,
116,
22,
43,
126,
-29,
4,
22,
44,
10,
-54,
-80,
-111,
-113,
49,
-122,
-83,
-29,
32,
48,
5,
-49,
-74,
94,
-41,
51,
83,
-17,
-67
] |
The opinion of the court was delivered by
Rosen, J.:
The State appeals from a pretrial order prohibiting the State from presenting expert witness testimony on delayed reporting by child victims of sexual abuse. The defendanUappellee has raised the issue of the court’s jurisdiction to hear the interlocutory appeal under K.S.A. 22-3603.
Andrew Sales was tried and convicted of one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(2). The alleged victim of the crime was his daughter. The crime was alleged to have occurred between the dates of June 1, 2004, and February 1, 2005; however, the victim did not disclose the event to anyone until the spring of 2008.
At trial, held November 17 and 18, 2008, the State presented the testimony of Oklahoma State Bureau of Investigation Agent Andrea Hamilton. Agent Hamilton is a trained child forensic interviewer with extensive experience in interviewing child victims of sexual abuse. Agent Hamilton testified that she interviewed the victim following the victim’s disclosure of the abuse and she described the interview. In addition, the State sought and was granted leave by the court to qualify Agent Hamilton as an expert witness to testify about the reasons some children delay disclosing that they have been the victim of sexual abuse. She testified generally that children abused by someone with whom they have an on-going relationship, such as “a family member or soccer coach or someone from Church, tend not to disclose immediately.” The ruling allowing her expert testimony specifically prohibited her from testifying “about the credibility or the quality of the evidence” presented by the victim, and Agent Hamilton did not present any testimony relating to why the victim, specifically, might have delayed disclosing the abuse, nor did she opine that the victim had been the subject of sexual abuse or that the defendant had been the perpetrator.
Following trial, the defendant filed a Motion for a New Trial and a brief in support of the motion. One of the issues he raised was that he “was prejudiced by the inadmissible testimony of the expert which passed on the credibility of the victim and on issues in the purview of the jury.” In support of this issue, the defendant argued that Agent Hamilton’s testimony concerning delayed reporting impermissibly “hoisted” the victim’s credibility and that the jurors did not need expert testimony to aid them in determining why a child might delay disclosing sexual abuse.
The court apparently heard argument on the motion on March 6, 2009, but no transcript is included in the record on appeal. The court did file a detailed Journal Entry of Motion for New Trial, however, including these findings with respect to the expert testimony of Agent Hamilton:
“18. Defendant’s second claim is he was prejudiced by the Court declaring the OSB agent an expert on child disclosures [sic] issues only.
“19. The Court in Warren v. Heartland Automotive Services, Inc., 36 Kan. App. 2d 75, 760, [144 P.3d 73 (2006),] said:
‘The qualifications of experts and the admissibility of their testimony are discretionary matters for the trial court. We will overturn the trial court’s decision on these matters only if the court abused its discretion.’
“20. In retrospect, the determination that OSB Agent Andrea Hamilton was an expert and could give an opinion fails the Frye test and was error. Frye v. United States, [293 F. 1013] (D.C. Cir. 1923).
“21. Her opinion is based on soft science, if any, and was not supported by any reports, tests or other analysis.
“22. OSB Agent Andrea Hamilton should not have been declared an expert and doing so gave her entire testimony more credibility to the juiy.”
Based on these findings and other findings not relevant to this appeal, the district court granted the defendant’s Motion for New Trial. The State then apparently made a motion requesting the court to reconsider, and briefs were filed on that motion; however, the motion itself is not in the record. Any ruling on that motion is also not reflected in the record. A new trial was scheduled for March 26, 2009, and a new judge was assigned.
The record does indicate that the State filed a Motion for Expert Witness on May 4,2009, apparently to seek a pretrial ruling on the admissibility of Agent Hamilton’s expert testimony in the second trial; however, again the motion is not included in the record on appeal. On May 14, 2009, the State filed a document entitled Submission of Additional Authority in Support of State’s Motion to Admit Expert Testimony. The Submission of Additional Authority contains a brief statement arguing that the testimony of Agent Hamilton is “pure opinion” testimony and not subject to the Frye test. As authority, the State attached a copy of Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 14 P.3d 1170 (2000).
On May 20, 2009, the court filed a Pretrial Order. The order indicates a “Pre-trial” was held on May 8, 2009. No transcript, if one was made, is included in the record. The order disposes of several pending motions but states “[t]he Court will take under advisement the Motion for Expert Witness.”
On May 21, 2009, the State filed a Notice of Interlocutory Appeal, appealing from the court’s ruling on the Motion for Expert Witness. Specifically, the notice states that “[njot allowing expert testimony to explain this phenomenon [of delayed disclosure] to the jury substantially impairs the State’s ability to prosecute this case.” The notice cites K.S.A. 22-3601(a) and K.S.A. 22-3608 as authority for the appeal.
In a Journal Entiy of Decision by the court dated and filed on May 18, 2009, District Court Judge Clinton Peterson took up the Motion for Expert Witness. Judge Peterson noted that the previous trial was before Judge Kim Schroeder and that following trial Judge Schroeder granted the defendant’s motion for a new trial in part because he decided he had committed error by qualifying Agent Hamilton as an expert witness and allowing her testimony regarding delayed disclosure by child sexual abuse victims. Judge Peterson determined that, for consistency, he would defer to Judge Schroeder’s ruling and deny the State’s Motion for Expert Witness.
On May 22, 2009, the State filed an Amended Notice of Interlocutory Appeal. The notice is virtually identical to the original notice filed. The docketing statement filed by the State on June 3 states the issue in the case as “[w]hether the expert testimony of OSBI Agent Hamilton is subject to the Frye standard.”
The case was filed in the Court of Appeals and transferred to this court pursuant to K.S.A. 20-3018(c).
On November 10,2009, after the case was docketed in this court, the appellee filed a letter of additional authority with this court pursuant to Supreme Court Rule 6.09 (2009 Kan. Ct. R. Annot. 47) challenging the State’s authority to file an interlocutory appeal pursuant to K.S.A. 22-3603. He alleges that the ruling regarding the expert testimony of Agent Hamilton does not substantially impair the State’s ability to prosecute the case as required by case law interpreting the statute.
The State’s notice of appeal, entitled “Notice of Interlocutory Appeal,” cites K.S.A. 22-3601(a) (whenever an interlocutory appeal is permitted in a criminal case in the district court, such appeal shall be taken to the Court of Appeals) and K.S.A. 22-3608. The only provision of the latter statute still effective states: “For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal.” Since the document is clearly identified as a notice of interlocutory appeal, and the order appealed from, not allowing expert testimony on the phenomenon of delayed disclosure to be presented at the retrial of the case, is clearly identified, it must be assumed that the State intended to file this appeal under K.S.A. 22-3603, which provides:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
Prior case law of this court holds that “the appellate courts of Kansas should not take jurisdiction of the prosecution’s interlocutory appeal [under K.S.A. 22-3603] from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved”; however, appeals under K.S.A. 22-3603 “should include not only ‘constitutional suppression’ but also rulings of a trial court which exclude State’s evidence so as to substantially impair the State’s ability to prosecute the case.” State v. Newman, 235 Kan. 29, 34-35, 680 P.2d 257 (1984). The appellee maintains that the trial court’s order prohibiting the expert testimony of Agent Hamilton regarding delayed disclosure of sexual abuse by children did not substantially impair tire State’s ability to prosecute this case and, consequently, this court has no jurisdiction over the appeal. Interpretation of a statute and determination of jurisdiction are questions of law over which this court’s scope of review is unlimited. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008); State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
“The State’s right to appeal in a criminal case is strictly statutory, and the appellate court has jurisdiction to entertain a State’s appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes. [Citation omitted.]” State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999).
See Casner v. State, 37 Kan. App. 2d 667, 670, 155 P.3d 1202 (2007).
Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court’s own motion. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007); Cohen v. Battaglia, 41 Kan. App. 2d 386, 389, 202 P.3d 87 (2009). The appellee has raised the issue of this court’s jurisdiction under K.S.A. 22-3603 through a letter filed pursuant to Supreme Court Rule 6.09 (2009 Kan. Ct. R. Annot. 47).
Prior to this court’s opinion in State v. Newman, 235 Kan. 29, the parameters of interlocutory appeals under K.S.A. 22-3603 from orders suppressing evidence were set by State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980). “Simply stated, Boling made a distinction between a trial court ruling suppressing evidence obtained in violation of constitutional rights and a ruling excluding evidence because of the statutory rules of evidence. It concluded that interlocutory appeals may properly be taken from the former but not from the latter.” Newman, 235 Kan. at 31.
In Newman, the court considered an interlocutory appeal by the State from an order of the trial court excluding testimony based upon the marital privilege. The court analyzed the purpose of K.S.A. 22-3603, noting the Judicial Council comment to the statute, which states:
“ ‘The foregoing sections are intended to permit Supreme Court review of trial court rulings on pretrial motions which may be determinative of the case. The committee believed that in the case of trial court rulings which suppress evidence essential to proof of a prima facie case, the prosecution should have an opportunity for review in the Supreme Court if a substantial question exists as to the correctness of the trial court’s decision.’ ” State v. Newman, 235 Kan. at 32.
After noting that Boling’s restrictive interpretation of the statute was based upon an Illinois case that was subsequently rejected by the Illinois Supreme Court, Newman concluded that Kansas should also reject the narrow interpretation of the statute.
“We hold that the term ‘suppressing evidence’ as used in that statute is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only ‘constitutional suppression’ but also rulings of a trial court which exclude State’s evidence so as to substantially impair the State’s ability to prosecute the case. Newman, 235 Kan. at 34.
Having adopted a broader interpretation, the court set about defining the limits of the new interpretation:
“We are convinced that this broad interpretation of K.S.A. 22-3603 is consistent with the stated purpose of that section as expressed by the Judicial Council comment at the time it was adopted — that the section is intended to permit appellate review of trial court rulings on pretrial motions which may be determinative of the case. We wish to emphasize, however, that the appellate courts of Kansas should not take jurisdiction of the prosecution’s interlocutory appeal from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved. Interlocutory appeals are to be permitted only where the pretrial order suppressing or excluding evidence places tire State in a position where its ability to prosecute the case is substantially impaired.” (Emphasis added.) Newman, 235 Kan. at 35.
Finally, to carry out the purpose articulated for the broader interpretation, the court advised:
“[T]he prosecutor should be prepared to make a showing to the appellate court that the pretrial order of the district court appealed from substantially impairs the State’s ability to prosecute the case. Such a showing may be required either on order of the appellate court or when appellate jurisdiction of the interlocutory appeal is challenged by the defendant-appellee.” Newman, 235 Kan. at 35.
Based upon the reasoning set out, Newman and other cases proceeded to determine only those issues which the court found “fall into the category of trial rulings which substantially impair the State’s ability to prosecute tire case.” 235 Kan. at 35.
In Newman, the defendant’s wife had observed him with stereo equipment obtained from a club which had been destroyed by arson. She accompanied him to another town where she observed him sell tire equipment. The State proposed to present her testimony concerning these observations, but the defendant convinced the trial court that it fell within the marital privilege. Ultimately, the trial court concluded that not only the wife’s testimony but all testimony and evidence derived from her statement to police including these observations would be excluded. This court found the trial court to be in error and, by reaching the issue, necessarily concluded that the excluded evidence substantially impaired the State’s ability to prosecute the case. 235 Kan. at 43-44. Indeed, the wife’s testimony and the testimony of witnesses to whom she had led the police substantially comprised the State’s case against the defendant.
Subsequent cases applying the holding of Newman give additional guidance on the determination of what type of trial court rulings substantially impair the State’s prosecution. In State v. Galloway, 235 Kan. 70, 680 P.2d 268 (1984), handed down the same day as Newman, the defendant was charged with rape. The victim’s identification of the defendant was weak, and the State sought to introduce an “Identi-Kit” composite drawing created by the victim as well as evidence of a photo lineup identification to corroborate her in-court identification. In addition, the State sought to introduce testimony from the defendant’s wife that she had observed keys of the same type as those taken from the victim in the defendant’s possession. The trial court excluded the “Identi-Kit” on hearsay grounds and the testimony regarding the keys on the basis of the marital privilege. The photo lineup identification was excluded as having been conducted under impermissibly suggestive circumstances. None of the rulings was based upon a violation of the defendant’s constitutional rights.
The State filed an interlocutoiy appeal, and Galloway contested the court’s jurisdiction. Quoting the holding from Newman set out above, this court found the trial court rulings had substantially impaired the State’s prosecution. Galloway, 235 Kan. at 74. Without the excluded evidence, it would have been virtually impossible for the State to prove the element of identity.
In State v. Griffin, 246 Kan. 320, 787 P.2d 701 (1990), this court considered an interlocutory appeal by the State in a prosecution for possession of cocaine, sale of cocaine, and failure to affix a drug tax stamp to cocaine. The defendant was arrested in a parking lot where he had made a drug sale to a police informant. Over 45 minutes after he was arrested, 45 packets of cocaine wrapped identically to those which he had sold to the informant were found on the ground in the parking lot; however, in the interim at least six other cars had been in the lot. At the preliminary hearing, the trial court ruled that the evidence of the additional packets was too remote to be admissible and dismissed the possession charge. The State appealed the dismissal on the ground that the court had erred in excluding the evidence.
“The State claims it should be allowed to proceed under 22-3603 because its case has been substantially impaired, since the 45 packets of cocaine, if admitted into evidence, would: (1) strongly indicate Griffin’s intent to sell cocaine; (2) help defeat anticipated entrapment and procuring agent defenses; and (3) be needed to invoke the presumption of incarceration set out in K.S.A. 1989 Supp. 65-4127b(d). Griffin argues that the dismissal of one count in a three count complaint does not substantially impair the State’s ability to proceed with the remainder of its case.” 246 Kan. at 324.
The Griffin court looked at four cases in which the Newman standard had been applied:
“State v. Huninghake, 238 Kan. 155, 156-57, 708 P.2d 529 (1985) (suppression of blood alcohol test, given the statutory presumption of intoxication based on the test, substantially impaired State’s ability to prosecute DUI case); State v. Jones, 236 Kan. 427, 428, 691 P.2d 35 (1984) (suppression of testimony by highway patrolman regarding defendant’s refusal to complete one phase of field sobriety test did not substantially impair State’s ability to prosecute DUI case); State v. Wanttaja, 236 Kan. 323, 325, 691 P.2d 8 (1984) (suppression of blood alcohol test substantially impaired State’s ability to prosecute DUI case); and State v. Galloway, 235 Kan. 70, 73-74, 680 P.2d 268 (1984) (suppression of composite drawing and victim’s identification of her assailant at photographic lineup substantially impaired State’s ability to prosecute rape case).” 246 Kan. at 323-24.
The court noted: “In State v. Huninghake, 238 Kan. at 157, [708 P.2d 529 (1985)], we stated: ‘Suppression rulings which seriously impede, although they do not technically foreclose, prosecution can be appealed under K.S.A. 22-3603.’ ” 246 Kan. at 324. Further, Griffin cites Newman for the proposition that “[t]hough the term ‘suppressing evidence’ has a broader meaning than illegally seized evidence, the appellate courts of Kansas will not take jurisdiction of the prosecution’s interlocutory appeal from every run-of-the-mill, pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved. State v. Newman, 235 Kan. at 35.” 246 Kan. at 326. Griffin then notes that the question whether evidence is too remote to be relevant is left to the discretion of the trial judge and concludes that the trial judge did not abuse its discretion, thereby impliedly finding that the order of exclusion substantially impeded the State’s ability to prosecute the case.
In State v. Jones, 236 Kan. 427, 691 P.2d 35 (1984), cited in Griffin, the court concluded that the trial court’s exclusion had not substantially impaired the State’s case. Jones is a short, concise opinion and may be set out here substantially in full:
“Jones was arrested by a trooper of the Kansas Highway Patrol for driving while under the influence of intoxicating liquor. The trooper noticed that Jones swayed when he walked and smelled of alcohol. Jones told the trooper that he had consumed a few beers and that he had hit a guard rail while attempting to avoid an accident with another vehicle — thus, that he had been driving his pickup after he had consumed the beers. The trooper asked Jones to take a field sobriety test. Jones completed some parts of the test, but when he was reciting the alphabet, he stopped at the letter ‘p’ and refused to proceed. He also refused to attempt the finger-to-nose test.
“The trial court ruled that the prosecution could not introduce evidence of the defendant’s refusal to take the finger-to-nose test, and it could not comment on his failure to complete the alphabet test. The State then filed a notice of appeal. Later, the trial court reversed its ruling as to the comment on the alphabet test, but stood by its ruling that the State could not introduce evidence of or comment upon defendant’s failure to take the finger-to-nose test.
“Does that ruling substantially impair the State’s ability to prosecute this case? The State has all of the trooper’s observations of the defendant, the results of the field sobriety test, excepting one small portion thereof, and presumably it has either the results of a blood alcohol test or evidence that defendant refused to take such a test. Additionally, it has the defendant’s admissions of consumption of alcohol, followed by driving a motor vehicle, followed by a collision with a guard rail. Obviously, the State can proceed with prosecution without the excluded bit of evidence. It has no statutory authority to appeal and we have no authority or desire to review, piecemeal, every evidentiary ruling adverse to the prosecution made in the course of a criminal proceeding.
“We lack jurisdiction to hear the matter, and therefore dismiss the appeal.” State v. Jones, 236 Kan. at 427-428.
Byway of comparison, in State v. Bradley, 42 Kan. App. 2d 104, 208 P.3d 788 (2009), the Court of Appeals found an order excluding evidence of the defendant’s refusal to submit to a breath test did substantially impair the prosecution when there had been no field sobriety testing or other objective indicators of intoxication, and in light of the mitigating factor that the wreck defendant had been in occurred during a snowstorm.
Examining these cases, it appears that in order to determine whether a trial court order substantially impairs the State’s ability to prosecute a case, the evidence available to the State must be assessed to determine just how important the disputed evidence is to the State’s ability to make out a prima facie case. Newman and subsequent cases also indicate that evidence subject to a discretionary standard of admission is less likely to substantially impact the State’s case. Cf. State v. Kleypas, 282 Kan. 560, Syl. ¶ 2, 147 P.3d 1058 (2006) (ruling made as a matter of law less likely to change at trial; therefore, if it is truly one which substantially impairs the State’s case, it is proper for interlocutory appeal).
In this case, because there has already been a trial, it is relatively easy to assess the State’s case against Sales with and without the disputed evidence. The State’s case consisted primarily of the testimony of the victim about the abuse and that of the victim’s aunt to whom she first made disclosure, combined with the testimony of Agent Hamilton concerning her interview of the victim. The victim’s mother also testified to the events around the disclosure. None of this testimony was affected by the district court’s pretrial ruling.
The testimony of Agent Hamilton concerning delayed disclosure was brief, extremely general, and in essence boils down to one or two sentences indicating that it is not unusual for children who are in a relationship with their abuser to delay disclosing the abuse. The State still has the testimony of the victim, her aunt, her mother, and Agent Hamilton’s interview testimony. Very little is lost with the removal of Agent Hamilton’s testimony on delayed disclosure. Indeed, the need for expert testimony on the issue at all is disputed.
An additional reason might be cited to support a determination that this court should not take jurisdiction over this interlocutory appeal. The defendant filed his Rule 6.09(b) letter raising the jurisdictional issue on November 10, 2009. Rule 6.09(b) does not set a definite response time; however, it does provide that “any response must be made promptly.” 2009 Kan. Ct. R. Annot. at 48. The State did not respond prior to oral argument held December 10 and has filed nothing in writing addressing the jurisdictional issue. In Bradley, the Court of Appeals commented on the State’s failure to address the jurisdictional issue this way:
“The State did not file a reply brief. Its failure to adequately brief the issue of substantial impairment of its prosecution could be deemed waiver or abandonment of the necessary jurisdictional showing. Accordingly, this court could refuse to exercise jurisdiction over the State’s interlocutory appeal. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (An issue not briefed by the appellant is deemed waived or abandoned.).” Bradley, 42 Kan. App. 2d at 106.
The excluded evidence cannot fairly be said to substantially impair the State’s prosecution in this case. In addition, the State has not addressed the jurisdictional issue. We find that this interlocutory appeal was improvidently taken and hold that we do not have jurisdiction over the case.
Appeal dismissed. | [
-48,
-22,
-19,
-84,
56,
98,
58,
56,
1,
-25,
53,
-45,
47,
-54,
5,
126,
-109,
47,
84,
97,
-42,
-73,
83,
65,
94,
-14,
-8,
-34,
-73,
74,
116,
124,
76,
96,
-118,
-47,
102,
-54,
-53,
82,
-114,
7,
-104,
-24,
51,
1,
36,
107,
30,
11,
53,
-66,
-29,
42,
60,
-54,
105,
42,
91,
-66,
-55,
-127,
-21,
7,
-67,
48,
-77,
52,
62,
7,
-8,
62,
-104,
57,
0,
105,
51,
-74,
-110,
-12,
75,
-119,
-88,
96,
-61,
49,
28,
-27,
101,
-63,
47,
95,
-84,
-93,
-104,
96,
11,
45,
-106,
-39,
49,
16,
41,
-2,
-5,
76,
95,
100,
-119,
-113,
-126,
-77,
-49,
53,
8,
26,
-29,
37,
2,
113,
-51,
-30,
84,
7,
114,
-37,
-18,
-14
] |
Per Curiam-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Bryan W. Smith, of Topeka, Kansas, an attorney admitted to the practice of law in Kansas in 1992.
On October 7, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer to the formal complaint on October 9, 2009. On October 16, 2009, the respondent provided a proposed probation plan. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 4, 2009, where the respondent was personally present and was represented by counsel. At the hearing, a joint stipulation of facts signed by all parties was accepted. The hearing panel determined that respondent violated KRPC 8.4(b) (2009 Kan. Ct. R. Annot. 602) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer), and 8.4(g) (engaging in conduct adversely reflecting on the lawyer’s fitness to practice law). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. For years, the Respondent practiced law with Stephen Cavanaugh and Thomas Lemon, in Topeka, Kansas. At some point, after becoming an attorney, the Respondent developed a serious alcohol problem.
“3. One day over lunch, in March, 2008, the Respondent drank alcohol to excess and became intoxicated. As a result, his partner drove him home.
“4. In April, 2008, at the behest of his partners, the Respondent participated in a 28-day inpatient alcohol and drug treatment program at Valley Hope. When he returned to work, he was required to enter into a contract which greatly limited his ownership interest in the firm if he continued to drink alcohol.
“5. Following tire release from treatment and the execution of the contract with his partners, the Respondent continued to drink alcohol.
“6. On June 22, 2008, the Respondent traveled from Topeka, Kansas, to the KCI Airport. During the drive, the Respondent consumed a fifth of vodka. At KCI, the Respondent boarded a plane to Memphis, Tennessee.
“7. During the flight, the Respondent continued to consume alcoholic beverages. The Respondent was rather disruptive on the plane. Security met the Respondent as he deplaned. At that time, the Respondent was arrested for public intoxication and disorderly conduct, misdemeanor offenses. While en route to the police station, the Respondent damaged a police car window. As a result, the Respondent was also charged with vandalism, a felony.
“8. The Respondent retained an attorney in Memphis, Tennessee, and was able to reach a settlement of the pending criminal case. As a result, the Respondent entered a plea of guilty to public intoxication and disorderly conduct. The vandalism charge was dismissed. The Respondent paid for the damage caused to the window in the amount of $90.12.
“9. As a result of his arrest, [] Cavanaugh, Smith & Lemon, P.A. terminated his employment.
“10. Following the Respondent’s arrest and employment termination, the Respondent continued to drink alcoholic beverages.
“11. The Respondent self-reported his conduct to the Disciplinary Administrator.
“12. In July, 2008, the Respondent returned to Valley Hope for detoxification. Then, the Respondent participated in an inpatient drug and alcohol treatment program in Oklahoma for a period of 90 days.
“13. After being released from the treatment program in Oklahoma, the Respondent continued to drink alcoholic beverages.
"14. On February 27, 2009, the Respondent entered the Attorney Diversion Program with the Disciplinary Administrator’s office. In the Diversion Agreement, the Respondent acknowledged that he is addicted to alcohol, stipulated that he violated KRPC 8.4(b), and agreed to comply with treatment recommendations and abstain from consuming alcoholic beverages.
“15. On June 3, 2009, and on July 28, 2009, the Respondent informed the Disciplinary Administrator’s office that he had violated the terms and conditions of the Diversion Agreement by consuming alcoholic beverages on three separate occasions.
“16. The Disciplinary Administrator informed the Respondent that if he again violated the Diversion Agreement, the Disciplinary Administrator would seek the revocation of the Diversion Agreement.
“17. In September, 2009, the Respondent again consumed alcoholic beverages, in violation of his diversion agreement.
“18. On September 15, 2009, the Respondent was again admitted to the Valley Hope treatment program for detoxification. Following his detoxification, the Respondent participated in seven days of inpatient drug and alcohol treatment,, again, at Valley Hope.
“19. On September 16, 2009, the Disciplinary Administrator learned that the Respondent had again consumed alcoholic beverages. As a result, the Review Committee terminated the Respondent’s participation in the Attorney Diversion Program.
“20. As of the date of the hearing on the Formal Complaint, November 4, 2009, the Respondent reported that he had not consumed any alcoholic beverages since September 15, 2009.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b) and KRPC 8.4(g), as detailed below.
“2. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent was found guilty by his plea of public intoxication and disorderly conduct. Thus, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“3. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent’s conduct on the drive from Topeka to KCI, the Respondent’s conduct on the airplane, the Respondent’s conduct in the police car in Memphis, Tennessee, and the Respondent’s repeated violations of his diversion agreement, adversely reflect on his fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’)- Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty 'Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when he repeatedly violated his diversion agreement.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in the State of Kansas in 1992. At the time of the misconduct, the Respondent had been practicing law for approximately 16 years.
“Illegal Conduct. The Respondent was convicted of public intoxication and disorderly conduct. As such, the Respondent engaged in illegal conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. The Respondent’s misconduct was not motivated by dishonesty or selfishness. It appears that the Respondent’s misconduct is the obvious result of alcoholism.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent clearly suffers from alcoholism. Alcoholism is a personal problem and it contributed to the Respondent’s misconduct.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent fully and freely acknowledged his misconduct.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys an excellent reputation as an attorney in Topeka, Kansas.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“On October 16, 2009, the Respondent provided a proposed probation plan. At the hearing on this matter, the Disciplinary Administrator recommended that the Respondent be placed on probation pursuant to the terms and conditions outlined in the Respondent’s proposed plan. Despite the fact that the Respondent provided the proposed plan of probation, the Respondent requested that the Hearing Panel recommend to the Kansas Supreme Court that the Respondent be censured and that censure be published in tire Kansas Reports.
“The Kansas Supreme Court adopted a detailed rule regarding the placement of Respondents on probation. See Kan. Sup. Ct. R. 211(g). That rules provides:
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to tire Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’ Thus, the Hearing Panel may recommend that the Respondent be placed on probation only when (1) the Respondent develops a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint; (2) the Respondent puts the proposed plan of probation into effect prior to the hearing; (3) the misconduct can be corrected by probation; and (4) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. In this case, the Respondent has met the threshold requirements of being placed on probation. The Respondent developed a workable, substantial, and detailed plan of probation[;] he provided a copy of the plan to the Disciplinary Administrator and each member of the Hearing Panel more than 10 days before the hearing[;] he put the plan of probation into effect[;] the misconduct can be corrected by probation[;] and placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of one year. However, the Hearing Panel recommends that the Court suspend the imposition of the suspension and place tlie Respondent on probation for a period of two years, subject to the following terms and conditions:
T. The Respondent shall abstain from the consumption of alcoholic beverages or cereal malt beverages and the use of illegal drugs. If the Respondent consumes any alcoholic beverages or cereal malt beverages or uses any illegal drugs, the Respondent shall immediately report the information to the Disciplinary Administrator. If the Respondent consumes any alcoholic beverages or cereal malt beverages or uses any illegal drugs, the Disciplinary Administrator shall immediately institute probation revocation proceedings and seek the suspension of the Respondent’s license to practice law.
‘2. The Respondent shall continue to be monitored by a member of the Kansas Impaired Lawyers Assistance Program throughout the period of probation. In the event the Respondent’s monitor or the director of the Kansas Impaired Lawyers Assistance Program learns that the Respondent has not maintained his sobriety, the monitor or the director shall immediately report the information to the Disciplinary Administrator’s office.
‘3. Throughout the period of probation, the Respondent shall comply with any and all requests or requirements made by his monitor or the director of the Kansas Impaired Lawyers Assistance Program, including but not limited to requests or requirements to submit to alcohol or drug tests, to submit to an alcohol and drug evaluation, to participate in alcohol or drug education, and to participate in alcohol or drug treatment.
‘4. The Respondent shall attend a minimum of three Alcoholics Anonymous meetings each week throughout the period of probation. The Respondent shall maintain proof of attendance. The Respondent shall provide tire proof of attend- anee to his monitor, the director of the Kansas Impaired Lawyers Assistance Program, and the Disciplinaiy Administrator’s office upon request.
‘5. The Respondent shall obtain an Alcoholics Anonymous sponsor. The sponsor must be willing to share information regarding the Respondent’s sobriety to the Respondent’s monitor. The Respondent shall have an Alcoholics Anonymous sponsor throughout the period of probation.
‘6. Throughout the period of treatment, the monitor shall provide quarterly reports regarding the Respondent’s sobriety, alcohol and drug testing, AA attendance, and compliance with monitoring.
‘7. The Respondent shall continue to work with Eisenbarth & Associates. The Respondent shall follow all recommendations made by treatment providers at Eisenbarth & Associates. In the event the treatment providers at Eisenbarth & Associates determine that the Respondent is no longer in need of treatment, the treatment providers shall notify the Disciplinary Administrator that the Respondent has been discharged from treatment. Throughout the period of treatment, Eisenbarth & Associates shall provide quarterly reports regarding the Respondent’s progress in treatment.
‘8. The Respondent shall execute sufficient releases to enable his monitor, the director of the Kansas Impaired Lawyers Assistance Program, and the Disciplinary Administrator, as well as any alcohol and drug educators or treatment providers to exchange information regarding the Respondent’s sobriety, alcohol and drug testing, alcohol and drug education, and alcohol and drug treatment.
‘9. The Respondent shall cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information.
TO. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator.’
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinaiy proceeding, this court considers the evidence, the findings of the disciplinaiy panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Attorney misconduct must be established by clear and convincing evidence. In re Patterson, 289 Kan. 131, 133-34, 209 P.3d 692 (2009); Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable.’ ” 289 Kan. at 133-34 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
Conclusion and Discipline
It Is Therefore Ordered that respondent Bryan W. Smith be suspended for 1 year from the practice of law in the state of Kansas, see Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. An-not. 272), but that imposition of the suspension be suspended, provided that respondent continues to abide by the terms of his probation plan for 2 years from the date of the filing of this opinion. In addition, this court hereby imposes an additional probation term requiring respondent Smith to obtain, within 30 days of the filing of this opinion, a supervisor for his law practice. The supervisor and the terms of the supervision must be acceptable to die Disciplinary Administrator, and the respondent’s law practice supervision must continue until the end of the probation.
It Is Further Ordered that, in the event respondent fails to abide by his probation plan and/or the additional term set forth in the preceding paragraph, and his suspension thus takes effect, the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361). In the further event that respondent seeks reinstatement to the practice of law at the conclusion of his suspension, he shall comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Davis, C.J., not participating.
Richard B. Walker, District Judge, assigned. | [
-80,
-22,
-52,
-35,
-116,
96,
58,
60,
89,
-37,
-9,
114,
-19,
-29,
9,
107,
-31,
73,
81,
107,
-43,
-78,
119,
-64,
-26,
-5,
-8,
-47,
-76,
79,
100,
-3,
77,
-80,
-110,
-11,
-122,
-54,
-46,
-36,
-94,
4,
9,
-16,
91,
-127,
-80,
107,
-105,
15,
53,
15,
-13,
46,
19,
75,
9,
104,
-33,
-81,
-63,
-47,
-47,
-107,
126,
20,
-93,
-107,
92,
13,
84,
47,
-116,
57,
41,
104,
115,
-74,
2,
-12,
15,
-119,
-116,
38,
98,
34,
17,
-93,
-92,
-68,
44,
56,
13,
39,
-103,
89,
105,
8,
-74,
-35,
116,
20,
35,
-72,
-24,
69,
27,
96,
-122,
-54,
-112,
-111,
31,
-28,
-52,
27,
-17,
-90,
0,
69,
81,
-28,
94,
-33,
112,
27,
-118,
-76
] |
The opinion of the court was delivered by
Rosen, J.:
Michael Hughes seeks review of the Court of Appeals decision affirming the 19-month prison sentence he received for his aggravated escape from custody conviction. Specifically, he challenges the aggregation of the three uncounseled misdemeanor convictions used to enhance his sentence. He argues that the State failed to meet its burden to prove that he made a knowing and intelligent waiver of the right to counsel because the waiver form he signed in two of those actions did not comply with the standards established by this court in In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985).
Hughes pleaded guilty to aggravated escape from custody. His presentence investigation (PSI) report listed three prior uncoun-seled misdemeanor convictions that were converted to a felony for criminal history purposes pursuant to K.S.A. 21-4711(a). Prior to sentencing, he filed a motion challenging his criminal history score. Hughes complained that it was improper to aggregate the misdemeanor convictions because the waiver of counsel obtained in those cases was insufficient to prove that the waiver was knowingly and intelligently made.
The district court conducted a hearing on the motion. At the hearing Hughes argued that in entries 17 and 18 of the PSI report — Dodge City Municipal Court cases Nos. 95-80391 and 95-80579 — the waiver form he signed did not comply with Gilchrist. Pie asserted that the Gilchrist sample waiver form included a certification by the judge; a certification not included on the waiver forms he signed. Hughes contended that without that certification, the State could not meet its burden to prove he had knowingly and intelligently waived his right to counsel. Hughes also contested entry 3 in the PSI report — a municipal court conviction from Wichita — arguing that despite his signing a valid waiver, it was impossible to ascertain if a knowing or intelligent waiver was actually made without a record to identify what was said at the time. Hughes has apparently abandoned that argument, as he did not raise it before either the Court of Appeals or in his petition for review. See State v. Hughes, No. 98,716, unpublished opinion filed November 7, 2008, slip op. at 2.
The State responded that in the Dodge City cases, the waiver form Hughes signed, which consisted of one form with both case numbers on it, was identical to what Gilchrist required, and the lack of certification by the judge should not affect the determination of whether Hughes intelligently and knowingly waived his right to counsel.
The district court ruled that Hughes had signed the waiver form and acknowledged that he was fully advised by the court of his right to counsel at the time of the convictions. The court noted that the waiver form was not diminished by the omission of the certification recommended in Gilchrist because, by signing the form, Hughes acknowledged that he was given the substantive information at the heart of Gilchrist. The district court reasoned that Hughes’ signature on the waiver form should “have consequences.” Given that the form was signed by Hughes and the municipal court judge, the district court believed requiring an additional certification was surplusage. Accordingly, Hughes was sentenced to 19 months in jail.
Hughes appealed his sentence. On appeal he renewed his criminal history score challenge. He also alleged that it was error to use his criminal history — specifically his prior adult convictions and a prior juvenile adjudication — to increase his sentence without submission to a jury, arguing this was a violation of the Sixth and Fourteenth Amendments to the United States Constitution.
The Court of Appeals reviewed Gilchrist at length and determined that its requirements focused more on substance than on form. The court reasoned that the purpose of the waiver form was to assure Hughes had knowingly and intelligently waived his right to counsel, and if that fact was ascertainable from the form used, then the Gilchrist requirements were met. Consequently, the Court of Appeals concluded that the municipal courts were not required to utilize an exact copy of the sample form from Gilchrist and that the waiver signed by Hughes was sufficient. Hughes, slip op. at 8-9.
The Court of Appeals did not address Hughes’ next argument, raised for the first time on appeal; Hughes contends that to be valid, the waiver required acknowledgment that he was informed of his right to appointed counsel if he was indigent. Hughes, slip op. at 9. Ultimately, the court concluded that there was substantial competent evidence that Hughes had been fully advised of his right to counsel and his subsequent waiver was knowingly and intelligently given. This court granted Hughes’ petition for review of the Court of Appeals decision. Additional facts will be provided as necessary to the analysis of the issues presented. We now address the merits of Hughes’ claims.
Gilchrists Waiver Requirements
For his first issue, the appellant argues that two of his prior convictions should not have been included in the calculation of his criminal history because the written waiver of the right to counsel that he signed in those cases did not include a certification by the municipal court judge that is identical to the example waiver form offered by this court in Gilchrist.
The State must prove a defendant’s criminal history score by a preponderance of die evidence. K.S.A. 21-4715(c). In that respect, this court’s standard of review is limited to determining whether substantial competent evidence supports the district court’s finding that the State has met this burden. State v. Presha, 27 Kan. App. 2d 645, 648, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). However, to the extent that we are asked to review the effect of the holding in Gilchi'ist, we are presented with a question of law subject to de novo review. See State v. Jefferson, 287 Kan. 28, 33-34, 194 P.3d 557 (2008).
Hughes’ argument that the waiver of counsel he signed was invalid stems from this court’s holding in Gilchrist, 238 Kan. 202. In Gilchrist, this court examined the requirements for a valid waiver of the right to counsel. Gilchrist was found guilty of battery in municipal court. He was not represented by counsel at trial, and no record was made of the proceeding. At sentencing, Gilchrist informed the court that he wanted counsel present. Despite this request, the court proceeded with sentencing, stating that Gilchrist could appeal the decision within 10 days. Although Gilchrist informed his counsel that he wished to appeal, an appeal was never filed. 238 Kan. at 203-04.
While in jail, Gilchrist filed a writ of habeas corpus with the district court, complaining that he had been denied his right to counsel in the municipal court proceedings. At the hearing, the municipal court judge, who had prior knowledge of Gilchrist’s personal circumstances and knew he was not indigent, testified that at the time of Gilchrist’s first appearance, he read to him the charges, explained the penalties, and asked if Gilchrist intended to have an attorney at trial. He testified that Gilchrist responded that he did not wish to have an attorney. Gilchrist, 238 Kan. at 204. Gilchrist admitted under oath that this testimony was accurate. In the end, the district court denied the writ because of Gilchrist’s failure to directly appeal. 238 Kan. at 204-05.
That denial was thereafter appealed to this court. While it was ultimately decided that Gilchrist had been both properly advised of his rights and validly waived them by admitting that the judge’s testimony was accurate, this court developed a procedure for recording future waivers of the right to counsel in municipal courts. Without requiring that every waiver of counsel be made on the record — a process too burdensome for the municipal courts — this court concluded that obtaining a written waiver was an effective solution. 238 Kan. at 209.
A sample of the suggested waiver form was included in the opinion:
“SAMPLE WAIVER
FOR THE CITY OF_,_COUNTY, KANSAS CITY OF_, Plaintiff,
(Municipal Court Identification No._)
vs.
_______, Accused Person
WAIVER OF COUNSEL
The undersigned acknowledges that he or she has been informed by the Municipal Court of the charges against him or her, of the possible penalty, of the nature of the proceedings before the Court, of his or her right to have counsel appointed to represent him or her, if he or she is financially unable to obtain counsel and is determined to be indigent, all of which the undersigned fully understands. The undersigned now states to the Court that he or she does not desire to have counsel, either retained or appointed, to represent him or her before the Court, and wishes to proceed without counsel.
SUBSCRIBED AND SWORN TO before me this__day of_, 19__.
I hereby certify that the above named person has been fully informed of the charges against him or her and of the accused’s right to have counsel, either retained or appointed, to represent the accused at the proceedings before this Court and that the accused has executed the above waiver in my presence, after its meaning and effect have been fully explained to the accused, this_ day of_, 19_.
JUDGE OF THE MUNICIPAL COURT’
238 Kan. at 212.
It is the certification language at the bottom of the sample form that is the source of the present complaint.
Gilchrist indicated that a properly executed written waiver, such as the example above, would meet the State’s burden to prove that a defendant’s waiver of counsel was knowingly and intelligently made. 238 Kan. at 208-09. Importantly, however, the court also held that admissions by the defendant regarding the waiver could be used to cure any defect resulting from failing to obtain the written waiver. 238 Kan. at 210. This court held that Gilchrist’s acknowledgement that the municipal court’s testimony was accurate “cure[d] any defect resulting from the absence of a written waiver and eliminate[d] the problem of proof.” 238 Kan. at 210. Thus, we ruled that it is not the specific form of the waiver, but rather the ability to verify the specific circumstances under which it was given that is the critical factor in deciding whether a waiver is valid.
Post-Gilchrist, the Court of Appeals has issued several opinions reviewing how municipal courts have applied Gilchrist’s requirements when accepting a defendant’s waiver of counsel. See State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001); State v. Likins, 21 Kan. App. 2d 420, 903 P.2d 764, rev. denied 258 Kan. 861 (1995); State v. Flores-Picasso, No. 100,602, unpublished opinion filed August 7, 2009; State v. Reed, No. 90,170, unpublished opinion filed March 19, 2004, rev. denied 278 Kan. 851 (2004). Of these, the State cites Likins for the proposition that a signed waiver form and a journal entry indicating the defendant was advised of his rights was enough to show that the waiver was knowingly and intelligently given. Likins, 21 Kan. App. 2d at 433.
In Likins, the defendant challenged the sufficiency of his signed waiver form as failing to demonstrate that he knowingly and intelligently waived counsel. However, the court did not address whether the form itself was satisfactory in light of Gilchrist. While, as the State suggests, the court did conclude that “[t]he record affirmatively showfed] defendant was advised of his right to counsel and waived that right” and that there was no evidence “suggesting any irregularity with the prior plea,” the court did so under the assumption that the challenge was a collateral attack, requiring that “every reasonable presumption in favor of the validity of the judgment should be indulged.” 21 Kan. App. 2d at 433. It therefore did not evaluate whether the documents in the record addressing his waiver complied with the Gilchrist requirements.
In contrast, Hughes cites State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001), where the Court of Appeals distinguished Lik-ins. In Allen, the court reasoned that a challenge to the constitutional validity of prior convictions required that the court do more than merely “presume that all of the actions of the municipal court followed the law . . ., there must be a showing that the waiver was knowingly and intelligently made, and the attempted waiver must be strictly construed.” 28 Kan. App. 2d at 791-92. Based on that standard, the Court of Appeals concluded that a journal entry with the language “defendant has been advised of his constitutional rights and enhancements,” coupled with the handwritten word “waiver,” was not enough to meet the State’s burden to show that he had knowingly and intelligently waived his right to counsel. Specifically, the court noted that the word “waiver” did not affirmatively explain what was being waived and remanded the issue for further findings. 28 Kan. App. 2d at 788-91.
Two unpublished Court of Appeals opinions are more on point. In Reed, Reed challenged the use of two of his prior uncounseled misdemeanor convictions to enhance his sentence because the State had not shown that they were obtained after a knowing and intelligent waiver of counsel. In one of the convictions, Reed had signed a waiver form that followed the Gilchrist sample form; however, it lacked a complete caption, contained no case or docket number, was undated, and was not file stamped. Reed never signed a waiver form in the other conviction, and instead the State presented a journal entry that contained a handwritten note stating “6/16/00 factual basis-fully advised of rights, waives them.” Reed, slip op. at 5. The Court of Appeals determined that these entries fell short of meeting the State’s burden to show that in both cases the waiver was knowingly and intelligently given.
Another unpublished opinion of the Court of Appeals was filed after the petition for review was granted in this case. In Flores-Picasso, slip op. at 1, defendant Flores-Picasso also challenged the aggregation of his two prior uncounseled misdemeanor convictions. Specifically, he argued that his waiver was not knowingly and intelligently made because the forms he signed did not fully inform him of his right to counsel. Flores-Picasso, slip op. at 1-2.
The forms at issue in Flores-Picasso contained very detailed language explaining the nature of the charges against him and the maximum possible punishment; his right to an attorney and the method for appointment if he could not afford one; and the benefits of representation and the disadvantages of proceeding to trial without counsel. Further, both written waiver forms contained certification statements signed by the municipal court judge acknowledging that the judge had informed Flores-Picasso of these rights, which he then intelligently waived in the judge’s presence. Flores-Picasso, slip op. at 2-3.
Importantly, while the forms used were quite detailed, they contained language different than the sample form in Gilchrist. In fact, the forms Flores-Picasso signed provided more information and in greater detail than the Gilchrist example. In specifically addressing this discrepancy, the Court of Appeals stated:
“Gilchrist did not mandate that waivers of counsel obtained in municipal courts contain the exact language of its sample. ... As long as the written waiver shows that the ‘accused was properly advised of his or her rights and that he or she knowingly and intelligently waived those rights,’ the waiver, regardless of the specific language used, is sufficient for purposes of showing that the defendant’s Sixth Amendment right to counsel was not violated.” Flores-Picasso, slip op. at 4 (citing Gilchrist, 238 Kan. at 210).
Thus, with substance prevailing over form, the Court of Appeals concluded that the forms Flores-Picasso signed did constitute substantial competent evidence that he made a knowing and intelligent waiver of his right to counsel. Flores-Picasso, slip op. at 4.
As in Flores-Picasso, the Court of Appeals in the present case examined Gilchrist’s requirements and concluded:
“Gilchrist did not mandate that waivers of counsel obtained in municipal courts contain the exact language of its sample. The court specifically noted that the sample was a suggested form which it recommended for use in municipal courts. [Gilchrist,] 238 Kan. at 209. Gilchrist clearly focused on whether the defendant knowingly and intelligently waived the right to counsel, which can be accomplished without specific certification language by the judge in the waiver form. ‘[T]he reason for the requirement of a record of the proceedings and a written waiver of counsel are for the purpose of proving an accused was properly advised of his [or her] rights and that he [or she] knowingly and intelligendy waived those rights.’ 238 Kan. at 209-10.” Hughes, slip op. at 8.
As further support for its position, the Court of Appeals relied on State v. Strayer, 242 Kan. 618, 628, 750 P.2d 390 (1988), and State v. Turner, 239 Kan. 360, 365-68, 721 P.2d 255 (1986). Both cases, decided after Gilchrist, upheld waivers even though no written waiver form was signed by either defendant. Flughes, slip op. at 8-9. In Strayer, this court determined that while the district court judge never explicitly informed the defendant about his right to have an attorney present, because the defendant had apparently hired and fired an attorney during the course of the litigation, and had also been involved in previous legal proceedings, the defendant’s statements to the court that he had no objection to continuing with sentencing absent counsel was a knowing and intelligent waiver of his right to have counsel at sentencing. 242 Kan. at 628.
Likewise, in Turner, based on the review of an expanded record, this court concluded that the defendant’s failure to dispute a pretrial journal entry stating that the court had informed him of his right to counsel and requirements for appointment of counsel, together with entries in the plea transcript showing that he was asked whether he had been informed of his right to counsel, was enough to show that the defendant’s waiver was knowingly and intelligently made despite the lack of a written waiver. 239 Kan. at 367-68.
The Court of Appeal’s reliance on Strayer and Turner is not completely determinative because neither of the cases involved municipal court waivers. More to the point, neither opinion addresses tire issue of a written waiver at all. Both simply analyze what other types of evidence could satisfy the State’s burden of proof. Further, both decisions relied in part on transcripts from tire record, something generally not available in municipal court— the main reason for requiring a written waiver to begin with.
Ultimately, however, we find that Gilchrist does not require that municipal courts use forms identical to the sample included in the opinion. At the heart of Gilchrist was finding a way to assure that a defendant’s right to counsel was adequately protected without unduly burdening the municipal courts. What is clear after Gilchrist is that because municipal courts are not courts of record, a written document should be obtained so that there is evidence that the defendant was fully informed of his or her rights to counsel and that any waiver thereof was knowingly and intelligently made. Gilchrist merely mandated that the use of the sample written waiver satisfies the constitutional requirement of establishing a knowing and voluntary waiver of counsel. It did not invalidate the use of other methods for recording the same information. This court has on many occasions reiterated that “ ‘ “ ‘[t]he law of this state is realistic. Substance prevails over form.’ ” ’ ” Kelly v. VinZant, 287 Kan. 509, 528, 197 P.3d 803 (2008); State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 (2008). As long as the necessary information is ascertainable from other means or waiver forms, Gilchrist’s requirements are satisfied.
Hughes’ Criminal History Score
Having found a waiver form identical to that contained in Gilchrist is not required for an effective waiver of counsel, we now turn to Hughes’ next issue: was there substantial competent evidence in the record to support the finding that the State met its burden to show by a preponderance of the evidence that Hughes had a criminal history score of A?
What is apparent from Gilchrist is that the evidence in the record must answer two critical questions in order to establish an effective knowing and voluntary waiver of counsel; first, whether the defendant has been fully advised and properly informed of his or her right to counsel and, second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court. Based on its interpretation of Gilchrist, Strayer, and Turner, as well as its review of the contents of the form signed by Hughes, the Court of Appeals concluded that there was substantial competent evidence to establish both that Hughes had been fully advised of his right to counsel and that his subsequent written waiver was knowingly and intelligently given. Hughes, slip op. at 9.
In his petition for review, Hughes suggests that proof that his waiver was knowing and intelligent can only occur when there is “some record that the court made an inquiry into the defendant’s desire to waive counsel” and that because the certification is not included in the Dodge City form, that requirement has not been met. He relies on a portion of Gilchrist where the court, in reviewing the holding of State v. Andrews, 5 Kan. App. 2d 678, 623 P.2d 534 (1981), stated:
“[Andrews] held that even if the trial court conducted an extensive inquiry into the defendant’s desire to waive counsel, if that inquiry did not appear in the record, the State could not meet its burden of proving that defendant’s waiver of counsel was knowingly and intelligently made and therefore, defendant’s Sixth Amendment right to counsel was abridged.” Gilchrist, 238 Kan. at 208-09.
However, in Andrews the only record entry pertaining to the defendant’s waiver was the judge’s statement in the trial transcript that “[t]he record may show that he is appearing personally, acting in his own defense, having waived his right to counsel.” Andrews, 5 Kan. App. 2d at 680. The defendant never signed a written waiver, nor was there any other express indication in the record that he had been advised of any rights at all, just the above reference that he had waived his right to counsel. All Andrews stands for in this context is to reinforce what Gilchrist already established — that there must be some record that the defendant was fully apprised of his or her rights to counsel and that despite that information he or she knowingly and intelligently waived that right.
Importantly, it does not automatically follow that just because the Gilchrist certification language has not been included in the waiver form, Hughes did not make a knowing and intelligent waiver. As discussed above, Kansas courts have not interpreted Gilchrist as requiring that a waiver form be identical to the suggested sample. See, e.g., Flores-Picasso, slip op. at 4. Rather, the courts look for substantial competent evidence from the record related to the waiver supporting the district court’s conclusion. See State v. Mattox, 280 Kan. 473, 484, 124 P.3d 6 (2005) (noting that the district court’s findings related to waiver of Miranda rights were supported by substantial competent evidence); State v. Siesener, 35 Kan. App. 2d 649, 650, 137 P.3d 498 (2005), rev. denied 281 Kan. 1381 (2006); State v. Presha, 27 Kan. App. 2d 645, 648, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). Substantial competent evidence has been described by this court as “that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved.” State v. Sharp, 289 Kan. 72, 88, 210 P.3d 590 (2009).
Here, there is no question that Hughes believes he was apprised of his right to counsel and that he signed a form that expressly states he was so advised and knowingly and intelligently waived that right. That form is also signed by the municipal court judge underneath the following language: “Subscribed and sworn to before me this 25 day of July 1995.” Hughes does not challenge the truth of the waiver he signed, but rather contends that the waiver form itself does not meet the standard set forth in Gilchrist. Hughes maintains that the absence of the certification by the judge means that the requirement establishing that he was properly in formed and fully advised of his right to counsel by the person charged with doing so was not met.
Hughes makes a valid point. The waiver form utilized by the Dodge City Municipal Court is sufficient in establishing what Hughes may have believed his rights to be and a voluntary waiver of those perceived rights. Absent however, is any verification or validation of what he was told, a function that the Gilchrist certification satisfies. It is not up to the defendant to know what “fully advised” means. It is the judge who is burdened with assuring that Hughes’ rights have been adequately protected. See State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007) (“It is the task of the district court judge to insure that a defendant’s right to counsel under the Sixth Amendment to the United States Constitution is honored.”) Recently, we clarified that when a defendant exercises his or her statutory right to challenge the accuracy of the convictions contained in his or her criminal history worksheet, the State must carry the burden of producing further evidence proving the truth of the convictions by a preponderance of the evidence. State v. Schow, 287 Kan. 529, 539-40, 197 P.3d 825 (2008). The State may not shift the burden onto the defendant to disprove the convictions. Such a process, we said, ignores the plain language of K.S.A. 21-4715(c) and suggests that we construe a criminal history worksheet in favor of the State — -a result inconsistent with the well-established principle that criminal statutes are strictly construed in favor of the accused. Schow, 287 Kan. at 539-40. The burden to prove the truth of a defendant’s criminal history score remains with the State. Once a defendant files a written objection to his or her criminal history, it is only after the State has met its burden to produce such evidence that the burden to produce evidence may shift to the defendant. K.S.A. 21-4715(c). The burden of proof, however, never shifts.
Similarly, requiring Hughes to “disprove” that the waiver information recited to him by the court was adequate when it was the court’s responsibility to do so is similar to the burden shifting we said was improper in Schow. Not only does it place the responsibility for full knowledge and understanding of the law with the wrong person, it also requires this court to construe the waiver form in favor of the State. Had the State called the municipal court judge to testify before the district court or provided other evidence that the waiver information Hughes received was in fact the requisite information, then the burden of production would have shifted to Hughes should he further contest the issue. See Gilchrist, 238 Kan. at 210 (Gilchrist’s acknowledgement that the municipal judge’s testimony was accurate “cure[d] any defect resulting from the absence of a written waiver and eliminate[d] the problem of proof.”). Because the State has failed to present any evidence to show that the waiver advice Hughes acknowledged receiving was in actuality the “proper” or “fully informed” advice, the waiver form utilized here, standing alone, does not satisfy the requirements set forth in Gilchrist.
Previous decisions interpreting similar issues have consistently held that a simple acknowledgement that the defendant waived his or her rights is not enough to clearly show what rights the defendant has waived. See, e.g., Allen, 28 Kan. App. 2d at 791; Reed, slip op. at 4-6. Without the certification language, all that can be readily determined is that a defendant acknowledged being informed of his or her rights, but we cannot ascertain whether the proper or full panoply of rights was ever communicated.
Thus, the importance of the judge’s certification in the waiver cannot be understated. As municipal courts are not courts of record, the certification provides a means for a reviewing court to be assured that the municipal court satisfied its own duty to protect the defendant’s rights. A form similar to that which was set forth (and actually cited to) in Gilchrist was included in the Municipal Judges’ Manual, a document prepared for and distributed to all municipal courts in the State. The fact that the sample form included therein also requires the judge’s certification underscores the importance of recording this bifurcated duty. Not only must a defendant clearly acknowledge a knowing and voluntary waiver of right to counsel, but the record must also establish that the judge has satisfied the obligation to insure that the proper information has been communicated so that the defendant may intelligently make that choice. The State has failed to meet its burden to show that the waiver in Hughes’ two prior misdemeanor convictions was knowingly and intelligently made. This matter is reversed and remanded to the district court for resentencing based on a recalculated criminal history consistent with this opinion.
Hughes also suggests that because the waiver form did not include an express statement acknowledging that he was informed of his right to appointed counsel if he was indigent, the waiver was not knowingly and intelligently made. The Court of Appeals did not address this issue, noting that this argument was made for the first time on appeal. Consequently, the challenge on this question is not properly before the court and, further, we need not reach it due to our resolution of the previous issue. See State v. Bello, 289 Kan. 191, 193, 211 P.3d 139 (2009); State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (issues not raised before trial court cannot be raised on appeal).
Finally, Hughes asserts that use of his prior convictions as well as a prior juvenile adjudication to calculate his criminal history score violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution where evidence of those convictions was not proven beyond a reasonable doubt. He acknowledges that this court has already decided the issue; he includes it merely to preserve it for federal review.
This court has previously concluded that the State does not have to prove criminal history to a jury beyond a reasonable doubt. State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Further, this court analyzed post-Apprendi decisions and reaffirmed the Ivory rule. See State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006), and State v. Manbeck, 277 Kan. 224, 229, 83 P.3d 190 (2004). Finally, this court recently determined that the rule applies to prior juvenile adjudications as well. See State v. Fischer, 288 Kan. 470, 476, 203 P.3d 1269 (2009); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732, cert. denied 537 U.S. 1104 (2003). Hughes’ arguments will not be revisited at this time.
The Court of Appeals decision affirming the district court’s ruling is affirmed in part and reversed in part. This matter is remanded to the district court for resentencing. | [
112,
-8,
-19,
63,
10,
-32,
58,
24,
64,
-105,
102,
115,
-21,
78,
5,
123,
-39,
47,
80,
121,
-47,
-73,
119,
-61,
-10,
-13,
-8,
85,
-77,
95,
-20,
-56,
78,
-28,
-94,
117,
70,
-54,
-57,
-110,
-50,
7,
-104,
-47,
-46,
64,
50,
3,
0,
14,
113,
-97,
-77,
104,
29,
-53,
41,
46,
27,
-81,
64,
-39,
-99,
-97,
-39,
36,
-79,
4,
-68,
-122,
112,
54,
-100,
-72,
1,
-24,
-15,
-106,
-110,
-75,
79,
9,
-91,
98,
99,
1,
24,
-25,
-4,
-127,
63,
19,
-67,
-90,
-39,
-56,
97,
36,
-105,
-67,
96,
22,
46,
120,
-19,
-116,
63,
108,
8,
-113,
-16,
-111,
77,
116,
6,
-53,
-17,
1,
-128,
101,
-42,
-26,
92,
-25,
56,
-33,
-18,
-105
] |
In a letter signed June 22, 2010, addressed to the Clerk of the Appellate Courts, respondent Jeremiah C. Gramkow, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered Ills license k> prilC'til'O lSW 111 ^ ^ preme Court Rule 217 (2009 Kan. Ct. R. Annot. 353).
At the time the respondent surrendered his license, a panel hearing on two complaints was pending in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The complaints alleged that respondent violated Kansas Rules of Professional Conduct 1.1 (2009 Kan. Ct. R. Annot. 410), 1.2 (2009 Kan. Ct. R. Annot. 421), 1.3 (2009 Kan. Ct. R. Annot. 426), 1.6 (2009 Kan. Ct. R. Annot. 468), 1.9(c)(2) (2009 Kan. Ct. R. Annot. 490), 1.15(d)(1) (2009 Kan. Ct. R. Annot. 507) and 8.4 (2009 Kan. Ct. R. Annot. 602).
Additionally, a third case that involved allegations of violations of Kansas Rules of Professional Conduct 1.5 (2009 Kan. Ct. R. Annot. 460) and 1.8 (2009 Kan. Ct. R. Annot. 483) was under investigation at the time respondent surrendered his license.
This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Jeremiah C. Gramkow be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Jeremiah C. Gramkow from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
Dated this 8th day of July, 2010. | [
-112,
-22,
-36,
93,
40,
32,
48,
-100,
121,
-45,
119,
83,
-17,
-37,
13,
107,
-61,
13,
21,
59,
-59,
-74,
126,
64,
38,
-5,
-63,
-35,
-72,
79,
-25,
-3,
90,
56,
66,
85,
6,
-54,
-127,
-36,
-62,
4,
9,
-8,
-62,
-127,
48,
41,
82,
11,
49,
-66,
-13,
62,
59,
-55,
-88,
108,
-5,
-123,
81,
-111,
-103,
21,
79,
17,
-77,
4,
28,
-121,
-48,
-81,
-120,
57,
9,
-8,
115,
38,
-122,
118,
79,
-71,
0,
103,
114,
48,
17,
-25,
-76,
-120,
15,
120,
-99,
-30,
-7,
88,
74,
-120,
-106,
-99,
97,
18,
39,
124,
46,
4,
31,
-20,
26,
-49,
-44,
-79,
-98,
119,
-114,
-101,
-1,
-57,
16,
85,
-109,
-27,
94,
-61,
50,
-97,
-50,
-12
] |
The opinion of the court was delivered by
Rosen, J.:
Damon Laron Allen appeals from his conviction of one count of possession of cocaine with intent to sell, in violation of K.S.A. 2006 Supp. 65-4161(a). The Court of Appeals affirmed his conviction, and this court granted review of one of the two issues raised before the Court of Appeals.
In response to an anonymous telephone tip, police officers went to a house in Liberal, Kansas, to serve a felony arrest warrant on Allen at about 10 p.m. on August 16, 2006. They were met at the door by Pablo Cardenas, who owned the house. Cardenas gave the police permission to search the house for Allen.
Officers began the search outside a small, uncluttered bedroom on the ground floor of the northwest comer of the house. Using a flashlight and looking into the room from the doorway, the officers saw no one in the room. The officers then left the house in order to send in a search dog. One of them called out to Allen that he should leave the house.
The officers saw Allen emerge from the northwest comer bedroom. They searched him and found a plastic baggy containing an off-white rock substance in one of Allen’s pants pockets. A further search disclosed two additional rocks loose in the same pocket.
Officers then searched the bedroom from which Allen had emerged. They discovered a stairway leading from the bedroom to another bedroom on the second floor. They searched the upstairs bedroom and found a plastic bag containing 21 rocks of crack cocaine. Cardenas told the police that the upstairs bedroom belonged to him and his wife, but that Allen had been staying there for several days.
When the police interviewed Cardenas, he gave a statement suggesting that Allen was selling cocaine to Cardenas and others out of the house. He promised that he would testify against Allen, and the police and the district attorney agreed not to file charges against Cardenas.
The State charged Allen with one count of possession of cocaine with intent to sell in violation of K.S.A. 2006 Supp. 65-4161(a) and one count of possession of cocaine in violation of K.S.A. 2006 Supp. 65-4160. A juiy found him guilty of the charge of possession of cocaine with intent to sell, and he was sentenced to an aggravated term of 51 months. Allen filed a timely notice of appeal.
Allen raised two issues before the Court of Appeals: Did the district court err in failing to give a unanimity instruction, and did the district court err in failing to instruct the jury to consider with caution the testimony of an admitted accomplice? The Court of Appeals affirmed the conviction in State v. Allen, case No. 99,014, unpublished opinion filed January 23, 2009. This court granted review with respect to the first issue only.
The State did not specify which cocaine — that in Allen’s pocket, or that in the upstairs bedroom — served as the basis for the possession element of possession with intent to sell. In closing argument, the State urged the jury to find that the cocaine in the bedroom belonged to Allen. The State also asked the jury to find that the cocaine in Allen’s pocket belonged to Allen. The State told the jury, “But if you take those three rocks [in the pocket], plus all the 21 rocks upstairs, we believe the evidence is overwhelming that this defendant possessed it and intended to sell each of those rocks to somebody else.” Allen presented no testimony, but he argued to the jury that it could reasonably conclude that the cocaine in the bedroom belonged to Cardenas and not to Allen. Allen did not object to the instructions as given.
The question presented on review is whether possessing the cocaine in the bedroom and possessing the cocaine in the pocket were multiple acts requiring jury unanimity as to at least one of those acts, or whether possessing cocaine in different parts of the house at the time of arrest were part of a single crime of possession with intent to sell.
We begin our inquiry by observing the established standards for reviewing a determination of whether conduct constitutes multiple acts:
“When jury unanimity is at issue, the threshold question is whether an appellate court is presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review.
“When jury unanimity is at issue in what has been determined to be a multiple acts case, the second question is whether error was committed. In a multiple acts case, either the State must inform the jury which act to rely upon in its deliberations or the court must instruct the jury to agree on the specific criminal act. The failure to elect or instruct is error.
‘When in a multiple acts case the State does not inform the jury which act to rely on in its deliberations and the trial court fails to instruct the jury to agree on a specific criminal act, the third question is whether that error warrants reversal.” State v. Voyles, 284 Kan. 239, Syl. ¶¶ 1-3, 160 P.3d 794 (2007).
In multiple acts cases, several acts are alleged and any one of them could constitute the crime charged. State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2005). In conducting a multiple acts analysis, the threshold question is whether the defendant’s conduct is part of one act or represents multiple acts that are separate and distinct from each other. Voyles, 284 Kan. at 244. We must therefore determine whether possessing the cocaine in Allen’s pocket was a separate and distinct act from possessing the cocaine in the bedroom for purposes of possessing with intent to sell. A series of cases discussing multiple acts provides guidance in deciding the issue.
In State v. Kinmon, 26 Kan. App. 2d 677, 995 P.2d 876 (1999), abrogated on other grounds by State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), abrogated on other grounds by State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007), the Court of Appeals considered facts closely resembling those in the present case. Cocaine was found in the defendant’s pocket and under a couch. The jury convicted the defendant of possession of cocaine. On appeal, he argued that it was reversible error for the court to fail to instruct the jury that it must agree on the specific act constituting the crime. The Court of Appeals found that the appeal involved a multiple acts case in which several acts are alleged and any one act could support the crime charged. The court reversed and remanded for a new trial, finding:
“The jury could have found Kinmon guilty based on either possession of the cigarette case or possession of the key holder. There was no instruction informing the jurors that all of them had to agree that the same underlying criminal act had to be proved beyond a reasonable doubt. In voting to convict Kinmon, different jurors could have relied on different acts. Kinmon did not request the appropriate instruction, but the language in Timley [, 255 Kan. 286, 875 P.2d 242 (1994),] makes clear that this is clear error and the conviction cannot stand when there is no assurance that the verdict was unanimous.” 26 Kan. App. 2d at 678-79.
We have enunciated a test for determining whether separate incidents underlie a criminal charge:
“Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ ” 271 Kan. at 939.
Although this court abrogated Hill on other grounds in Voyles, 284 Kan. 239, Syl. ¶ 3, our appellate courts have continued to apply the “fresh impulse” analysis in a long line of subsequent cases. See, e.g., State v. Thompson, 287 Kan. 238, 245, 200 P.3d 22 (2009); State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007); State v. Rivera, 42 Kan. App. 2d 1005, 1014-17, 219 P.3d 1231 (2009); State v. Baatrup, 40 Kan. App. 2d 467, 472, 193 P.3d 472 (2008); State v. Pritchard, 39 Kan. App. 2d 746, 754, 184 P.3d 951, rev. denied 286 Kan. 1184 (2008).
In State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 (2006), we noted additional factors that could determine whether criminal acts constitute unitary conduct: “(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.”
In the present case, the Court of Appeals decided that Kinmon was superceded by Kesselring and was no longer good law. The court then found that this case does not involve multiple acts under the Kesselring analysis:
“Under the Kesselring test, Allen’s charge appears to us to have arisen from one course of conduct and not multiple acts. All of the cocaine, whether on Allen’s person or in the upstairs bedroom, was found in the same house and on the same occasion. There was no evidence presented to suggest any intervening event or fresh impulse that would have led Allen to possess one batch of cocaine and not the other. See State v. Fisher, 283 Kan. 272, 312-13, 154 P.3d 455 (2007).” Allen, slip op. at 4.
This conclusion by the Court of Appeals is incorrect. There is no single test for whether conduct constitutes one act or separate and distinct multiple acts. A test that applies to kidnapping may not apply to possessing a controlled substance. It makes little sense in some contexts to speak of a “fresh impulse,” especially when part of the alleged criminal conduct consists of several ongoing actions. The critical issue is unanimity of the verdict. In a criminal case, Kansas statutorily requires jury unanimity on guilt. State v. Wright, 290 Kan. 194, Syl. ¶ 1, 224 P.3d 1159 (2010); see K.S.A. 22-3421.
The unanimity problem may be illustrated by considering some different possibilities for how the jury reached its conclusion, all supported by the testimony presented at trial.
All 12 jurors may have agreed that Allen owned the cocaine in the bedroom and intended to sell it. This situation presents no unanimity problem.
All 12 jurors may have agreed that Allen owned only the cocaine in his pocket and intended to sell it. This situation also presents no unanimity problem.
Ten of the jurors may have believed Allen owned the cocaine in both his pocket and the bedroom and intended to sell all of it. One juror may have believed Allen owned the cocaine in his pocket but did not intend to sell it and also have believed he owned the cocaine in the bedroom and intended to sell it. And one juror may have believed he did not own the cocaine in the bedroom but he owned and intended to sell the cocaine in his pocket. This scenario presents a unanimity problem: the jurors did not agree on the possession element of the possession with intent to sell.
We do not, of course, know what motivated specific individual jurors to reach a guilty verdict. They may have been unanimous in their factual conclusion, but they may not have been. That was the problem that the court addressed in Kinmon, and the Kinmon analysis remains applicable to a situation such as Allen’s, in which a jury could find either, or both, actual or constructive possession.
Having determined that the acts were sufficiently separate and distinct to warrant instruction on separate theories, we must decide whether the failure to give such instructions constituted reversible error. When a unanimity instruction was not requested or given and the defendant presented no general denial, an appellate court may conclude that the failure to instruct the jury to agree on a specific criminal act warrants reversal under the clearly erroneous standard. If the defendant made a general denial, the “error may be reversible when the trial is not merely a credibility contest between the victim and the defendant, e.g., due to inconsistent testimony from the victim.” Voyles, 284 Kan. 239, Syl. ¶ 5.
Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility that the jury would have rendered a different verdict if the trial error had not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007). As we set out in the scenarios above, it is certainly plausible that jurors would not have agreed on the element of possession that underlay the intent to sell.
We therefore reverse the Court of Appeals decision affirming the conviction, and we reverse the conviction. The case is remanded to the district court. | [
-80,
-18,
-3,
60,
58,
-32,
58,
-72,
107,
-75,
103,
83,
109,
-46,
20,
123,
-103,
111,
116,
121,
-51,
-73,
3,
-31,
-58,
-13,
113,
-12,
-77,
90,
-18,
-36,
12,
36,
-102,
85,
102,
72,
99,
92,
-114,
1,
-120,
66,
-41,
10,
36,
42,
-66,
14,
49,
31,
-13,
76,
25,
-38,
73,
44,
-37,
61,
88,
-8,
-69,
-105,
-81,
18,
-93,
32,
-98,
-121,
120,
62,
-112,
16,
0,
104,
-13,
-90,
-124,
52,
79,
-87,
-128,
37,
98,
32,
89,
-19,
-68,
-119,
63,
47,
-99,
39,
-100,
72,
96,
36,
-106,
-98,
44,
29,
43,
-8,
-29,
21,
45,
108,
2,
-34,
-100,
-111,
13,
112,
6,
121,
-21,
37,
52,
97,
-59,
-94,
84,
84,
80,
-97,
-114,
-44
] |
Per Curiam.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Chauncey M. Depew, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1993.
On January 7, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer and probation plan on March 2,2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 12, 2009, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(d) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. The Respondent practices law in Johnson County, Kansas. In 2007 and 2008, the Respondent’s practice consisted of criminal defense, traffic defense, and traffic prosecution. From time to time, the Respondent would serve as a municipal court judge. Approximately two or three times per month, the Respondent served as a pro tern judge in the Johnson County District Court.
“3. On April 29, 2008, the Respondent self-reported misconduct. The Respondent’s letter to tire Disciplinary Administrator included the following:
T am writing to self-report a violation of the Kansas Rules of Professional Conduct that I committed. On Friday, January 18, 2008 I was Judge'Pro Tem in Johnson County District Court. . . When I arrived that morning, I engaged in a casual conversation with the Judge’s Administrative Assistant, . . . where we both made sexual innuendoes. During the conversation, I made inappropriate comments about what she was wearing. At one point, as she was walling past me in her office, I reached out and put my hand on her arm and asked her, “Where are you going?” I have, in the past, though not as a Pro Tem judge, made inappropriate comments to other Johnson County court staff of a sexual nature.’
“4. On May 1, 2008, the Honorable Steve Tatum filed a complaint against the Respondent for having engaged in inappropriate conduct with five female Administrative Assistants of District Court Judges in Johnson County, Kansas. The Respondent was personally acquainted with each of the five Administrative Assistants.
“Administrative Assistant #1
“5. In late 2007 or early 2008, Administrative Assistant #1 (AA#1) asked the Respondent to handle a number of parking tickets for her. The Respondent negotiated with the prosecutor and was able to have the fines for the parking tickets reduced by half, provided the fines were paid that day. The Respondent paid the fines for AA#1. The Respondent did not charge AA#1 any attorney fees.
“6. From time to time, AA#1 made payments to the Respondent for the fines he paid in her behalf. One day, AA#1 told the Respondent fhat she had a $50.00 check for him to apply toward the balance owed. She asked the Respondent to stop by her office to pick it up. When he stopped by AA#l’s office, AA#1 commented that her next payment should be the last payment for the tickets. The Respondent stated, “We can take care of dais in other ways.’ AA#1 responded by giving the Respondent the check and telling him to get out of her office. Later, on another day, the Respondent stopped by AA#l’s office to pick up the last $50.00 payment on her tickets. The Respondent repeated the comment, ‘You can take care of this in other ways.’ AA#1 reported this conduct to the judge for whom she works.
“Administrative Assistant #2
“7. The Respondent has known Administrative Assistant #2 (AA#2) for 11 years. During the Winter of 2007, a jury trial was being conducted in the division where AA#2 works. During the trial, the Respondent came in and sat down in a chair by the door. At first, AA#2 was facing away from the Respondent. When AA#2 turned around, she observed the Respondent leaning back in his chair rubbing his genital area.
“8. Early one morning in 2008, AA#2 was working in her office. The Respondent came in and asked her to expose her breasts to him. AA#2 told the Respon dent that that was not going to happen. AA#2 attempted to leave her work area to fill a water bottle at the water dispenser, when the Respondent blocked her from leaving that area by standing in the doorway.
“9. As the Respondent was standing in the doorway, he reached and grabbed AA#2’s left arm and said, ‘Come on, just give me two minutes.’ AA#2 had to forcibly remove her arm from the Respondent’s grasp.
“10. Approximately two weeks later, the Respondent was sitting in a chair in AA#2’s office. AA#2 left her office to go to the courtroom and the Respondent remained in her office. When she returned there was a small note on her desk from the Respondent. The note read, T want to lick your butt.’ Later that day, AA#2 advised the judge for whom she works of all the incidents which had occurred.
“Administrative Assistant #3
“11. On March 7, 2007, the Respondent acted as a pro tem judge in the division where Administrative Assistant #3 (AA#3) works. The Respondent was in AA#3’s office when she told the Respondent that she would like to have some coffee. The Respondent replied by saying, 1 have something you would like.’ AA#3 turned around and observed the Respondent who was exposing his genitals to her. AA#3 told the Respondent that she could not believe that he did that, especially in light of the fact that he was engaged to be married. The next day, AA#3 reported the Respondent’s conduct to the judge for whom she works.
“Administrative Assistant #4
“12. Just prior to Christmas, 2007, the Respondent was in Administrative Assistant #4’s (AA#4) office as she was preparing to leave work for the day. AA#4 indicated to the Respondent that she was having a bad day. The Respondent left AA#4’s office and went to the men’s restroom at the Johnson County Courthouse. While in the restroom, the Respondent, using his mobile telephone, took a digital photograph of his penis. The Respondent sent AA#4 the picture of his penis using his mobile telephone. The Respondent asked her to return a picture of herself and send it back to his mobile telephone.
“13. On a different day, the Respondent, knowing that AA#4 has a tattoo on her lower back, asked to see the tattoo. The Respondent put his finger in the back of AA#4’s pants and pulled her pants to be able to see AA#4’s tattoo.
Administrative Assistant #5
“14. In the Fall or Winter of 2007, the Respondent left a note on Administrative Assistant #5’s (AA#5) computer monitor. The note read, “You’re Hot.’
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(d) and KRPC 8.4(g), as detailed below.
“2. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he engaged in a pattern of inappropriate sexual conduct with five Administrative Assistants of the Johnson County District Court.
“3. Specifically, the Respondent suggested that AA#1 could take care of her outstanding fines in other ways. The Respondent rubbed his genital area in front of AA#2. On a second occasion, the Respondent asked AA#2 to expose her breasts to him, blocked her exit from her office when she refused to expose her breasts, and grabbed her arm as she was attempting to leave. On a third occasion, the Respondent left an inappropriate note for AA#2. The Respondent, while present to serve as pro tem judge, exposed his genitals to AA#3. Further, the Respondent took a digital photograph of his penis, while in the Johnson County Courthouse and sent it, via a mobile telephone text message, to AA#4. The Respondent left an inappropriate note on the desk of AA#5.
“4. The Respondent’s conduct prejudiced the administration of justice and, therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“5. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent repeatedly engaged in inappropriate conduct, including sexual conduct, with several Administrative Assistants of the Johnson County District Court. The Respondent rubbed his genital area in front of AA#2. Additionally, the Respondent asked AA#2 to expose her breasts, blocked her exit from her office, and grabbed her arm when she tried to leave. The Respondent exposed his genitals to AA#3. The Respondent took a digital photograph of his penis and sent it via a mobile telephone text message, to AA#4. The Respondent’s extreme behavior adversely reflects on his fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty 'Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly and intentionally violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the Administrative Assistants and to the administration of justice in Johnson County District Court.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factor present:
“Prior Disciplinary Offenses. Following a hearing before a Hearing Panel of the Kansas Board for Discipline of Attorneys, the Respondent was informally admonished for violating KRPC 8.4(a).
“A Pattern of Misconduct. The Respondent engaged in a pattern of sexual misconduct.
“Vulnerability of Victim. The Administrative Assistants were vulnerable to the Respondent’s misconduct. Some of the Administrative Assistants were friends with the Respondent and he exploited his friendship by engaging in sexually harassing conduct.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1993. At the time of the Respondent’s misconduct, the Respondent had been practicing law for a period of 14 years. As such, the Hearing Panel concludes that tire Respondent had substantial experience in the practice of law at the time the misconduct occurred.
“Illegal Conduct. The Respondent engaged in illegal conduct when he exposed himself to AA#3 and stated, T thinlc I have something you would like.’ Additionally, the Respondent may have also engaged in illegal conduct when he sent a digital photograph of his penis to AA#4 via a mobile telephone text message.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from a medical condition called hypogonadism — a low level of testosterone. The Respondent’s physician prescribed AndroGel, a testosterone topical gel. The Respondent suffered side effects from the use of this medication. Specifically, the Respondent became aggressive, excitable, nervous, and agitated. Additionally, as a result, the Respondent developed depression.
“The Respondent’s testimony is unclear as to whether (1) the Respondent previously suffered from depression, (2) the low level of testosterone in his system led to the depression, (3) use of AndroGel led to the depression, or (4) a discontinuation of AndroGel would lead to an exacerbation of the depression. The Respondent continues to apply AndroGel.
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. While the Respondent generally acknowledged his conduct at the hearing, he minimized his conduct in his self-report letter and in his testimony at the hearing. The Respondent attempted to minimize the significance of his misconduct relating to AA#2, AA#3, and AA#4, by asserting that the conduct was not as egregious because he has been friends with AA#2, AA#3, and AA#4 for some period of time.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys the respect of his peers in the Johnson County bar as evidenced by several letters received by the Hearing Panel.
“Remorse. The Respondent expressed genuine remorse at the hearing on this matter.
“Remoteness of Prior Offenses. The misconduct that led to dre Respondent’s previous discipline occurred in 1995 and was remote in time to the present case. Additionally, die type of misconduct tiiat led to the Respondent’s previous discipline was remote in character to the misconduct in die present case.
“Any Statement by the Complainant Expressing Satisfaction with Restitution and Requesting No Discipline. The Administrative Assistants did not file the complaint and, accordingly, the Administrative Assistants are not Complainants. However, it is relevant that it was proffered that the Administrative Assistants generally requested tiiat the Respondent not be disciplined.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
"RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for a period of six months. The Disciplinary Administrator further recommended that the Respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219, prior to reinstatement.
“The Respondent requested that he be placed on probation subject to the terms and conditions of his proposed probation plan, pursuant to Kan. Sup. Ct. R. 211(g). That rule provides:
‘(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.
“The Hearing Panel recognizes that each provision of Kan. Sup. Ct. R. 211(g) must be satisfied in order for a Hearing Panel to recommend that a Respondent be placed on probation. In this case, the Respondent has not satisfied each provision of Kan. Sup. Ct. R. 211(g). Specifically, the Respondent’s plan of probation is not substantial and detailed. Further, the plan of probation was not provided to each member of the Hearing Panel and the Disciplinary Administrator at least 10 days before the hearing. Finally, from the testimony before the Hearing Panel, it is unclear whether the probation plan had been put into effect prior to the hearing.
"However, in the opinion of a majority of the Hearing Panel, substantial justice requires that the Respondent receive probation in this case.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, a majority of the Hearing Panel recommends that the Respondent be suspended from the practice of law for a period of two years. A majority of the Hearing Panel further recommends that the Respondent be granted probation from the suspension, subject to the following terms and conditions:
“1. Psychological Treatment. The Respondent shall continue his treatment for depression with Dr. Jeffrey Miller, throughout the period of supervised probation unless, in Dr. Miller’s opinion, continued treatment is no longer necessary. The Respondent shall follow all treatment recommendations of Dr. Miller, Dr. Bruce M. Cappo, or other treatment provider. Dr. Miller shall notify the Disciplinary Administrator in the event that the Respondent discontinues treatment against the recommendation of Dr. Miller during the probationary period. The Respondent shall provide Dr. Miller with an appropriate release of information to allow Dr. Miller to provide such information to the Disciplinary Administrator and the practice supervisor. Dr. Miller shall provide the Disciplinary Administrator and the practice supervisor with quarterly reports regarding the Respondent’s treatment status and level of treatment compliance throughout the period of probation.
“2. Limitation of Practice. The Respondent shall not work as a pro tem judge or other judge in any court throughout the period of probation.
“3. Letters of Apology. The Respondent shall write letters of apology to AA#1, AA#2, AA#3, AA#4, and AA#5. In addition, the Respondent shall also write letters of apology to each of the five respective division judges. The Respondent shall provide a copy of the letters of apology to the Disciplinary Administrator’s office, by July 1,2009.
“4. Contact with Administrative Assistants. The Respondent shall have no contact, in person or by telephone, with AA#1, AA#2, AA#3, AA#4, and AA#5, except as needed professionally.
“5. Practice Supervision. The Respondent’s practice will be supervised by attorney Lance E. Hanson. The Respondent shall allow Mr. Hanson access to his client files, calendar, and trust account records. The Respondent shall comply with any requests made by Mr. Hanson. During die first year of the period of probation, the Respondent shall meet with Mr. Hanson weeldy. During the final year of the period of probation, the Respondent shall meet with Mr. Hanson as directed by Mr. Hanson. Mr. Hanson shall prepare a monthly report to the Disciplinary Administrator regarding the Respondent’s status on probation.
“6. Audits. During the period of probation, Mr. Hanson shall conduct three thorough audits of the Respondent’s files. Within thirty (30) days of the date of this report, Mr. Hanson shall conduct an initial audit of the Respondent’s files. After the Respondent has been on probation for one year, Mr. Hanson shall conduct a second audit. Prior to tire completion of the second year of probation, Mr. Hanson shall conduct a third audit. If Mr. Hanson discovers any violations of the Kansas Rules of Professional Conduct, Mr. Hanson shall include such information in his monthly reports. Mr. Hanson shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Mr. Hanson’s periodic audit reports.
“7. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information.
“8. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.
“Costs are assessed against the Respondent in an amount to be certified by the office of the Disciplinary Administrator.
“CONCURRING AND DISSENTING OPINION
“While I join in the Findings of Fact and the Conclusions of Law, I must respectfully dissent from the Recommendation made by the majority in this case. After careful consideration of the evidence, there are a number of factors that, in my view, require the suspension of the Respondent’s license to practice law.
“First, the nature of the Respondent’s misconduct — multiple acts of sexual harassment of female employees at the Johnson County District Court over an extended period of time — warrants significant discipline. The evidence in this case shows a clear pattern of inappropriate and, in some cases, egregious conduct that characterized Respondent’s interactions with five female Administrative Assistants (hereinafter AAs) from 2007 until early 2008, when the Respondent was advised that Iris behavior had been reported to the disciplinary authorities. This conduct ranged from improper, sexually-suggestive comments to one incident in which the Respondent exposed himself to an AA in her office in the Johnson County Courthouse.
“On one occasion, the Respondent left a note on an AA’s desk that said: 1 want to lick your butt.’ On another occasion, the Respondent posted a note on another AA’s computer screen while she was out of the courtroom during a brief recess. The note said, ‘You’re hot.’ The Respondent testified that he posted the note because the AA ‘appeared to be in a pretty bad mood.’ He did it, he said, because he ‘thought it would make her smile, lighten her mood a little bit.’ The Respondent later admitted that he ‘really didn’t know [this AA] veiy well at all.’
“In addition, on two separate occasions, the Respondent suggested to a third AA, with whom he had an attorney-client relationship, that she could ‘take care of the fines’ he had paid on her behalf ‘in other ways.’ After the second such comment, the AA was troubled enough with the Respondent’s conduct that she reported it to the judge for whom she worked.
“Although the Respondent described the AA as ‘the one [of the five AAs] I’m least friendly with,’ he admitted in later testimony that she knew and trusted him enough to hire him to handle a legal matter and that he had learned intimate details about her through mutual friends. The Respondent denied any connection between his knowledge of these intimate details and his suggestion that she could pay her fines ‘in other ways,’ however, his testimony in that regard is troubling because the one consistency in Respondent’s relationships with all five AAs was his knowledge of intimate details of their fives, whether he obtained those details from the AAs themselves or from others.
“The Respondent said he was only ‘joking’ when he told the AA that she could take care of her fines ‘in other ways’ and that she understood that he expected her to pay the fines he had advanced on her behalf. Apparently, she did not understand that the Respondent’s comments were merely in jest because she reported his statements to the judge for whom she worked. The Respondent now admits that he ‘absolutely [does] understand how [this AA] could take it a different way . . . .’
“Unfortunately, the Respondent did not confine his conduct to inappropriate suggestions and comments. A fourth AA turned around at her desk one day to find Respondent seated on a chair a few feet away rubbing his genital area. On more than one occasion, the Respondent asked this AA to show him her breasts. She refused. On one of those occasions, the Respondent blocked the AA from leaving her work area by standing in the doorway, grabbing her arm and asking her to ‘give [him] two minutes.’ In order to free herself from the Respondent’s grasp, tire AA had to physically pull away.
“The Respondent testified that he knew this AA for 11 years and considered her a ‘friend.’ Like most of the other AAs, the Respondent testified that this AA had confided in him about personal problems and he, in turn, had confided in her. When asked why he thought that it was acceptable for him to sit in her office and rub his genital area, the Respondent testified, 1 just felt that because we were friends, that if I said something or did something . . . she wouldn’t be offended by it, I guess. . . .’ In follow up to that question, the Respondent acknowledged that, although he did not think the AA would be offended by his conduct, T . . . didn’t really analyze it before I did any of this stuff.’
“Even with this AA, whom he grabbed by the arm and asked for ‘two minutes’ and who clearly told him: ‘That isn’t going to happen,’ the Respondent minimized his conduct. Rather than simply acknowledging that his actions were wrongful, the Respondent tried to explain that ‘the whole incident took maybe 30 seconds, maybe a minute, and it wasn’t... complete at the time anyway.’ It is unclear what the Respondent meant by that, but he went on to say that, although ‘it’s easy to look back on it now and know how wrong what I did was, at the time ... I didn’t take it as . . . her being offended by what I said ... I felt she knew I was joking and she was joking, too
“Another AA was a victim of the Respondent’s decision to expose his genitals to her. There was almost no mention of this incident by the Respondent during the hearing, but he did acknowledge that it occurred. The AA told the Respondent that she could not believe what he had done, but the Respondent testified that he did not take that comment seriously. Although the Respondent ultimately acknowledged that the AA was ‘obviously shocked’ by his conduct, he pointed out that the incident involving this AA happened ‘a long time before the other incidents’ and that he and the AA were ‘still friends.’ The Respondent went on to explain that he did not think any of the AAs would be ‘outraged’ by his behavior, not even the AA to whom he exposed himself. In fact, the Respondent testified that he thought that ‘she would laugh and, you know, say what she said but, you know, in a laughing manner, I guess.’
“At the time the Respondent exposed himself to this AA, the Respondent had known her for five or six years and was acting as a pro tem judge in the division in which she worked. The Respondent testified that he had engaged in ‘pretty intimate conversations’ about a variety of issues with the AA, including conversations about her relationship with her husband and her children. The friendship between the Respondent and the AA was strong enough that the Respondent testified he had helped her school age son with a paper he was working on relating to Viet Nam.
“Yet another AA received, via cell phone transmission, an unsolicited picture of the Respondent’s penis. The Respondent acknowledged that the conduct occurred but attempted to explain that die AA had experienced a ‘bad day’ or was upset for some reason’ and that he was trying to cheer her up. The Respondent testified that he told her, ‘well, if you give me your phone number ... I’ll send you a picture.’ He went on to testily, . . so I went to the bathroom down the hallway from where that division was and took a picture of my penis with my cell phone, and I sent it to her.’ . . .
“On another occasion, the same AA, who had a tattoo on her lower back, was sitting in a chair in her office at the courthouse, leaning forward, exposing the top of her tattoo. The Respondent testified that he walked over and stuck his finger in the gap between the waistband of her pants and her back and pulled the pants back further so he could see the entire tattoo.
“In addition to the nature of the misconduct at issue here, I am troubled by the Respondent’s failure to take full responsibility for his actions. While he testified on several occasions that he understood that what he had done was wrong, he minimized his conduct by talking about the friendships he shared with each of these women, as though that somehow justified his conduct. The fact that he did not recognize that his behavior crossed ethical boundaries until after he was contacted by the administrative judge for Johnson County is also troubling.
“Third, I am not convinced we heard clear and convincing evidence that the Respondent’s depression or his steroid use were significant causes of his behavior. Dr. Bruce Cappo, the forensic psychologist who evaluated the Respondent shortly after the investigation of this matter began, testified that he saw the Respondent in June, 2008, for the sole purpose of conducting an evaluation on the recommendation of his counsel. Cappo provided the Respondent with no treatment or recommendations, other than that the Respondent ‘see a therapist and, if he wasn’t getting better, that medication was one option to utilize as well.’ Cappo testified that the Respondent had Very strong ideas’ about mental health issues and that, unfortunately, deterred him from seeking treatment for his depression as early as he might have. According to Dr. Cappo, the Respondent views depression as a weakness.
“Although Dr. Cappo indicated that he was supportive of the Respondent’s decision to try therapy first and then add medication, if necessary, he also testified that the Respondent’s level of depression at the time of his evaluation placed him in the top 2.5% of depressed adults based on the results of the Minnesota Mul-tiphasic Personality Inventory (MMPI).
“Significant in my view was Dr. Cappo’s testimony that the Respondent’s depression was only ‘one slice of the pie.’ Based on Dr. Cappo’s testimony, other contributing factors included concern about the children from his first marriage, his financial situation, and his marriage, all of which were stressors that Dr. Cappo indicated the Respondent was not dealing with appropriately.
“According to Dr. Cappo’s report, the Respondent’s conduct toward the AAs in the Johnson County Courthouse was the result of his desire for a ‘quick fix’ and his need to feel better about himself. This would not, however, have affected his ability to distinguish right from wrong. What it did instead, according to Dr. Cappo, was to cause the Respondent to want to feel better ‘at any cost at that moment, and his self-perception that the assistants were participating in this with him . . . helped this rationalization.’
“By the time the Respondent saw Dr. Cappo for his evaluation, he had been reported to the Disciplinary Administrator’s office and the investigation was ongoing. At that time, the Respondent presented himself to Dr. Cappo in what Cappo has described as a ‘very straightforward fashion,’ acknowledging that his conduct had been inappropriate.
“At some point in his testimony, the Respondent acknowledged that, after some of the incidents, he thought: T shouldn’t have done that’ but did not realize his conduct created an ethical issue ‘because [he and the AAs] were friends’ though he knew that he had ‘gone over the line . . .’ at times.
“Why, then, I find myself asking, didn’t the conduct stop? Clearly the Respondent was capable of controlling his urges because the disciplinary investigation turned up no similar incidents in the other courthouses where the Respondent regularly appeared. If the Respondent understood, as he testified, that he knew some of his behavior crossed the line at the time he was doing it, why didn’t he seek help and, further, will he seek help in the future if additional stressors bring him to the same point?
“Perhaps part of the explanation for the Respondent’s failure to modify his conduct lies in his further testimony that, when the conduct was occurring, the Respondent never believed that the AAs would report his conduct to their Judges and did not anticipate that there would be adverse consequences. In fact, the Respondent testified, T absolutely did not think they would. I never thought about that.’ Now, when faced with the consequences of his actions, the wrongful nature of the conduct seems clear to the Respondent. Given the Respondent’s testimony that there were times when he realized that he should not have engaged in the inappropriate conduct described herein, one has to question whether he perceived his friendships with these women as a license to conduct himself in a manner that he would have otherwise recognized as wholly inappropriate.
“Though it is not a significant factor in my recommendation, I have some concern that there may have been other incidents of similar conduct that were not reported. An example of one such incident came in through Dr. Cappo, both in his testimony and in his report. According to Dr. Cappo, the Respondent told an AA that he could see her breasts through her blouse. None of the AAs at issue here reported an incident of that nature.
“Dr. Cappo also testified that the Respondent’s use of Androgel during the worst of his depression may have complicated things by increasing the level of his depression and energizing his ‘system sexually.’ I have difficuliy rectifying Dr. Cappo’s opinions in that regard with the Respondent’s testimony that he continues to take Androgel but now experiences no side effects and that his very severe depression substantially abated or was cured by approximately ten visits with' a counselor, the last of which occurred around the first of the year, with no medicinal intervention. Dr. Cappo’s testimony was clear that, because he had not seen the Respondent in approximately a year and then saw him only for purposes of evaluation, he did not have an opinion about what the future would hold for the Respondent.
“Dr. Jeffrey Miller did see the Respondent for counseling after Dr. Cappo’s evaluation. The evidence reflects that the last counseling the Respondent obtained was around the beginning of 2009. Dr. Miller did not appear personally at the hearing but did prepare a letter setting forth his opinions, indicating that Respondent sought his assistance ‘after a lapse in judgment in his professional demeanor.’ For reasons that are not clear from the record, Dr. Miller apparently did not conclude, as Dr. Cappo had, that the Respondent suffered from major depression but instead concluded that he had an Adjustment Disorder, Unspecified (DSM-IV 309.9).
“Dr. Miller’s letter suggests the Respondent was very concerned about ‘his reputation and standing in the community’ and, in Dr. Miller’s view, represents no risk for future inappropriate behavior of this sort and further that Respondent had ‘an ability to curb impulses and maintain a professional demeanor.’ The Hearing Panel has no way of knowing what the Respondent shared with Dr. Miller about his ‘lapses in judgment’ because Dr. Miller’s letter does not indicate.
“There can be no doubt that the Respondent has suffered significant consequences as a result of his actions, including the loss of the part-time prosecutor position he held with Prairie Village, as well as the pro tern appointments he apparently often received in Johnson County. Similarly, there is no question that this experience has been very stressful for the Respondent, adversely affecting both his finances and his marriage.
“That notwithstanding and recognizing that the affected AAs do not want to see the Respondent disciplined, I cannot escape the thought that the Respondent’s conduct was both intentional and knowing. Nor can I imagine what might have convinced the Respondent that it was acceptable for him to expose himself to one AA, to rub his genitals in front of another, and send a third a digital photograph of his penis. Also of concern is the fact that the Respondent grabbed one AA by the arm and said, ‘Come on, just give me two minutes.’ This AA had to forcibly remove her arm from the Respondent’s grasp.
“Despite these facts, the Respondent testified that he did not realize, until after the complaint was initiated against him, that any of this behavior crossed the fine.
“For all of these reasons, I respectfully dissent from the Recommendation made in this case by a majority of the Hearing Panel. I recommend that the Kansas Supreme Court adopt the recommendation made by the Disciplinary Administrator that Respondent be suspended from the practice of law for a period of six months and that Respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219, prior to reinstatement. In this way, there will be some assurance that the issues with which Respondent has struggled have been appropriately addressed.”
The Respondent raises three exceptions before this court to the panel’s factual findings, conclusions of law, and recommended discipline. The Respondent does not take exceptions to the panel’s conclusions that he repeatedly violated KRPC 8.4(d) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law).
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable.’ ” In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The Respondent filed three exceptions to the panel’s final hearing report. Respondent took exception: (1) with the hearing panel’s determination that he did not satisfy the provisions of Kansas Supreme Court Rule 211(g) in preparing a proposed probation plan; (2) to the minority opinion and its reported rebanee on other unreported similar conduct as a factor in its recommendation; and (3) to the final hearing report’s finding of illegal conduct as an aggravating factor. Respondent did not take exception to the hearing panel’s recommended disciphne of probation for 2 years. Respondent admitted to violating KRPC 8.4(d) and 8.4(g); thus, diese violations are deemed admitted.
Respondent’s Probation Plan
Respondent admitted he provided the probation plan 2 days later than required by Rule 211(g). Nevertheless, the Disciplinary Administrator had no objection to our considering the respondent’s proposed plan. We find that there are significant differences of detail between the plan submitted by Respondent and that recommended by the hearing panel. Respondent’s plan failed to include any method to ensure compliance such as an audit reviewed by the Disciplinary Administrator or notice to the Disciplinary Administrator when psychological treatment ceased. In fact, this court would add one further requirement to Respondent’s probation plan: that medical evidence that the problems precipitating Respondent’s misconduct have been addressed on a continuing basis and will be addressed in the future be provided to the court. We are concerned that Dr. Cappo placed Respondent in the top 2% of those diagnosed with major depression yet no medication commonly used to treat depression has been utilized nor more intense treatment administered beyond meeting with a psychologist approximately once per month.
Minority Opinions Reliance on Unreported Similar Conduct
Respondent’s argument that the minority opinion inappropriately based its recommendation on similar unreported conduct is directly undercut by the opinion itself. The minority opinion states: “Though it is not a significant factor in my recommendation, I have some concern that there may have been other incidents of similar conduct that were not reported.” Based on our review of the minority opinion’s findings and recommendations, it. is clear that the recommendation is based on Respondent’s admitted misconduct and not alleged incidents of similar misconduct.
Finding of Illegal Conduct
The Respondent takes exception to the hearing panel’s finding that Respondent engaged in illegal conduct. Respondent supports his argument by pointing out that Respondent’s counsel twice informed the hearing panel that Respondent’s conduct was investigated for possible criminal charges, but the Johnson County District Attorney’s office declined to file a criminal case. The hearing panel found that Respondent engaged in criminal conduct when he exposed himself to AA#3 and stated, “I think I have something you would like.” Further, the panel found Respondent may have engaged in illegal conduct when he sent a digital photograph of his penis to AA#4 via a mobile telephone text message.
In making its finding, the hearing panel considered the aggravating factors outlined by the ABA Standards. ABA Standard 9.22(k) states that one of the factors which may be considered an aggravating factor is “illegal conduct, including that involving the use of controlled substances.” These standards do not require that a respondent be charged or convicted by law enforcement before conduct may be considered illegal. Further, the fact that an individual is not charged or convicted does not mean that the individual’s acts did not violate a criminal statute. In In re Farrell, 271 Kan. 291, 21 P.3d 552 (2001), this court adopted the hearing panel’s finding that the respondent in that case had engaged in illegal conduct by forging the names of others on negotiable instruments even though the respondent had not been convicted of forgery.
K.S.A. 21-3508(a)(2) provides: “Lewd and lascivious behavior is: .... publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.” Lewd and lascivious behavior under this set of facts is a misdemeanor. See K.S.A. 21-3508(b)(1). Respondent admitted that he exposed himself to AA #3. AA#3 was not his spouse nor did she, based on the record, provide consent for Respondent to expose himself to her. Based on the definition of lewd and lascivious behavior, Respondent engaged in this illegal conduct. Thus, we agree with the hearing panel’s finding that Respondent engaged in illegal conduct under ABA Standard 9.22(k).
Respondent’s exceptions to the panel’s findings do not affect or alter our determination of the appropriate discipline to be imposed. We have determined the appropriate discipline based on the admitted acts of misconduct alone and these are egregious in themselves, without considering: whether Respondent’s probation plan satisfied the requirements of Rule 211(g), whether the minority inappropriately relied on unreported similar conduct, or whether some of his misconduct was punishable as a misdemeanor.
The panel’s recommendation for discipline is advisory only, and it does not constrain this court from imposing a greater or lesser penalty. In re Dennis, 286 Kan. at 737; Rule 212(f) (2009 Kan. Ct. R. Annot. 337). We find ABA Standard 7.2 particularly helpful. It states: “Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.” ABA Standard 7.2.
Respondent intentionally and knowingly engaged in misconduct toward court personnel. On multiple occasions, he subjected five administrative assistants to sexual harassment. While Respondent admitted his actions in his answer to the complaint, throughout his testimony, he attempted to minimize the seriousness of his misconduct. Further, Respondent testified that it was not until after the complaint process was initiated that he realized his behavior constituted an ethical violation. In addition, given the particularly serious diagnosis by Dr. Cappo that Respondent is in the top 2% of those diagnosed with major depression, we are particularly concerned that Respondent should focus on treatment of this diagnosis so that the misconduct that occurred as a result does not repeat itself in the future. While we believe Respondent feels true remorse for his actions, this does not vitiate the seriousness of his misconduct.
Conclusion and Discipline
It Is Therefore Ordered that Respondent, Chauncey M. Depew, be and he is hereby suspended from the practice of law for 1 year in accordance with Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272) for violations of KRPC 8.4(d) and (g) (2009 Kan. Ct. R. Annot. 602). We note that a minority of the court would find that Respondent’s violations warrant a longer suspension period than we have ordered.
It Is Further Ordered that Respondent will undergo a Rule 219 (2009 Kan. Ct. R. Annot. 376) hearing at the end of his suspension prior to being readmitted to practice law in Kansas. At the Rule 219 hearing, the panel should consider whether the Respondent has obtained adequate medical and psychological treatment for his depression, followed all treatment recommendations during the period of suspension, and has written letters of apology to AA#1, AA#2, AA#3, AA#4, AA#5, and the five respective division judges.
It Is Further Ordered that the costs of these proceedings be assessed to the Respondent and that this opinion be published in the official Kansas Reports.
Johnson, J., not participating.
Phillip M. Fromme, District Judge, assigned. | [
-80,
-24,
-51,
-33,
12,
97,
-74,
44,
89,
-111,
119,
83,
-23,
-22,
12,
123,
-37,
105,
84,
105,
-43,
-76,
119,
-63,
38,
-5,
-72,
85,
-80,
95,
-11,
-35,
73,
48,
-118,
-107,
6,
74,
-107,
92,
-126,
7,
-119,
-48,
91,
-63,
52,
49,
19,
15,
53,
47,
-13,
46,
21,
99,
-88,
76,
-33,
-81,
-63,
-111,
-7,
21,
127,
22,
-93,
5,
-100,
7,
-44,
59,
-120,
57,
0,
-20,
51,
-78,
-126,
100,
79,
-87,
-116,
98,
98,
35,
9,
-93,
-92,
-120,
14,
56,
-99,
-90,
-103,
0,
107,
13,
-106,
-99,
100,
20,
47,
124,
102,
69,
31,
104,
15,
-49,
-108,
-111,
14,
101,
-50,
-102,
-21,
-90,
16,
69,
81,
-26,
95,
-42,
112,
27,
-82,
-80
] |
The opinion of the court was delivered by
Rosen, J.:
From the evening of January 29,2007, to the morning of Januaiy 30, 2007, three men engaged in a course of conduct that would take them across two Kansas towns and into the homes of several people, ultimately resulting in one death and multiple charges of kidnapping, assault, batteiy, and murder. One of those men, Samuel Becker, stood trial and takes the current appeal. He appeals from his convictions by a jury of one count of first-degree murder, four counts of kidnapping, one count of attempted lad-napping, two counts of aggravated battery, two counts of aggra vated assault, and one count of aggravated burglaiy. He complains on appeal of various trial errors, including the admission of hearsay testimony, misconduct by the prosecutor, failure by the prosecution to prove various parts of its case, and improper jury instructions. We find no error of such consequence as to require reversing any of his convictions.
On Januaiy 29, 2007, Edward Gordon discovered that someone had broken into his house in Baxter Springs and stolen a safe in which he kept money and a supply of drugs that he kept for sale. He called Geoffrey Haynes, who gave Gordon and Gordon’s girlfriend, Chandra Dupree, a ride to Pittsburg. There they met Aaron Graham and the defendant Becker.
Gordon, Graham, and Becker discussed how to determine who had stolen the safe and how to retrieve it. The three picked up a handgun at Graham’s father’s house and then drove to the home of George Rantz in Riverton. When Rantz answered the door, the three forced their way into the house. They proceeded to interrogate him about the missing safe, during which Graham waved the gun in the air and Becker suggested that someone was going to pay for the theft with his life. Rantz told them he did not know about the safe, and Becker urged Gordon and Graham to “shoot the motherfucker” to make an example out of him. Rantz’s girlfriend, Haley Watkins, said she was going to call the police, and the three intruders became calmer. Rantz then said he would go with them to find the thief, and they all went back to Haynes’s car and proceeded to the home of Drew Thiele.
Gordon, Graham, and Becker forced their way into Thiele’s house and began questioning him about the contents of the safe and where he had been drat night. During this questioning, Becker hit Thiele in the face with his fist. They then knocked Thiel down, and Becker beat him while Gordon pointed the gun at him. During the beating, Becker shoved his thumb into Thiele’s eye and choked him. They finally left Thiele on the floor, telling him not to call the police and that he should have the drugs and money available at 5 a.m. or they would kill him.
They dropped Dupree off and made several other stops before driving to Gordon’s house. All five men — Gordon, Graham, Becker, Haynes, and Rantz — went inside. Dupree showed up a short time later because she had forgotten her cell phone. Gordon then called Brad Ashe and asked him to come to his house. Ashe and his girlfriend, Natalie Stephens, came into the house, where Graham approached Stephens, demanding to know who she was and telling her to leave.
Inside the house, Graham and Becker shouted at and threatened Ashe and waved the gun around. They forced him to sit on the couch and asked him questions about the missing safe. After Ashe denied any knowledge about it, Becker began to punch him and hit him with his knee. Stephens returned to the house and sat behind the couch while the men beat and questioned Ashe. At one point, Graham put the gun in Ashe’s mouth and threatened to shoot him.
Dupree attempted to leave the house, but Graham stopped her, telling her that she was “not fucking going anywhere” and that she had to go to the back bedroom, which she did out of fear for her safety. Graham then discovered Stephens behind the couch and directed her to sit next to Ashe on the couch. Graham held the gun to her head and asked Ashe whether Stephens’s life was worth five thousand dollars.
Gordon, Graham, and Becker then sent Haynes, Rantz, and Stephens to the back bedroom with Dupree, and they complied because they were afraid and drought they had no reasonable choice in the matter. The three men continued to beat and question Ashe, who mentioned the name of J-Rich, a nickname for Jamey Richardson.
While subjecting Ashe to the interrogation and beatings, Gordon and Graham went back and forth between the living room, where Ashe was located and the bedroom, where Dupree, Rantz, Haynes, and Stephens were located, while Becker stayed with Ashe. They threatened their captives with the gun and told them that they would shoot anyone who tried to leave the room. When Gordon and Graham went to take the cell phones from the people in the bedroom, Becker wielded two hacksaws at Ashe and asked him, “Do you know what kind of sick motherfucker I am?”
Around that time, Jamey Richardson arrived at the front door, apparently in response to a call from Gordon. Gordon and Graham let him into the house, and Graham pointed the gun at him. The three men directed him to sit on the couch, where they ordered him to tell them where the missing safe and its contents were. Graham pointed the gun at Richardson, who attempted to knock it away. Richardson then grabbed the barrel of the gun and forced it up toward the ceiling as he tried to stand up. Gordon, Graham, and Becker acted in concert to physically force him back onto the couch.
Richardson then suggested that they all go talk to someone else and again got up from the couch. He got as far as the front door, although Graham continued to train the gun on him and Graham attempted to block his path. Richardson went outside, and Gordon, Graham, and Becker followed him.
Ashe, who remained in the house, heard people yelling outside, followed by a gunshot. He heard someone say, “I shot your boy,” and then Gordon returned to the house, ran through the house, and then ran back outside. A few seconds later he heard a second gunshot. Gordon, Graham, and Becker came back inside and told eveiyone to leave the house. Eveiyone ran from the house, during which time Rantz and Haynes saw Becker holding the gun.
As they ran from the house, Richardson screamed for help, but no one stopped to give him aid. A bullet had struck him in the leg, severing two arteries and causing him to bleed to death shortly after he was shot. At around 2 a.m., police, responding to calls from neighbors, found Richardson dead in the driver s seat of his car.
The following day, Becker admitted to Graham’s mother that he had shot Richardson. He told her that Richardson had somehow taken the gun, which fired, and Richardson said he had “shot your boy. The gun then somehow fell to the ground, and Becker, fearing that Graham had been shot and that he himself would be shot next, picked up the gun and shot Richardson in self-defense.
Becker was eventually charged with a number of felonies: one count of aggravated burglaiy for entering a structure with the intent to commit aggravated assault against George Rantz and/or Haley Watkins; one count of aggravated assault against George Rantz; one count of kidnapping of George Rantz with the intent to injure or terrorize Rantz or Ashe or Richardson; one count of aggravated burglary for entering a structure with the intent to commit aggravated assault against Joseph Thiele; one count of aggravated battery against Thiele; one count of aggravated battery against Ashe; one count of aggravated assault against Natalie Stephens; one count of kidnapping of Natalie Stephens with the intent to injure or terrorize Stephens or Ashe or Richardson; one count of kidnapping of Chandra Dupree with the intent to injure or terrorize Dupree or Ashe or Richardson; one count of kidnapping of Richardson with the intent to injure or terrorize Richardson; one count of kidnapping of Ashe with the intent to injure or terrorize Ashe; and one count of first degree felony murder for the death of Richardson while Becker was kidnapping Stephens and/or Dupree and/or Richardson.
A jury found Becker not guilty of the first count — aggravated burglary of the residence of Rantz and/or Watkins. The jury found him guilty of the lesser offense of attempted kidnapping of Richardson and guilty of every other count as charged. The district court sentenced him to an aggregate term of life plus 68 months.
Admission of Hearsay Evidence
Becker contends that a number of statements made out of court were erroneously admitted in violation of the prohibition against hearsay evidence. He also contends that the admission of the statements violated the Confrontation Clause of the United States Constitution.
K.S.A. 60-460 defines hearsay as “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” Evidence of an out-of-court statement that is not offered to prove the truth of the matter stated is not hearsay under K.S.A. 60-460. Boldridge v. State, 289 Kan. 618, Syl. ¶ 12, 215 P.3d 585 (2009). The theory behind the hearsay rule is that when a statement is offered as evidence of the truth of the matter stated, the credibility of the de-clarant is tire basis for its reliability, and the declarant must therefore be subject to cross-examination. 289 Kan. at 634.
This court has identified a number of out-of-court statements that do not constitute hearsay under K.S.A. 60-460 because they were not used to prove the truth of the matter that the statements asserted. These include statements material as part of the issue of a case; statements comprising verbal parts of an act; statements used circumstantially to give rise to an indirect inference but not to prove the matter asserted; and statements tending to show the defendant’s state of mind. 289 Kan. at 634. Statements offered into evidence not to prove the truth of the statement but “merely to show that the statements were said” or to show their effect on the listener accordingly do not constitute hearsay. State v. Harris, 259 Kan. 689, 699, 915 P.2d 758 (1996).
Becker presents a list of out-of-court statements that came before the jury through various witnesses. He complains that these statements constituted impermissible hearsay testimony and that a prosecution subterfuge deterred him from registering contemporaneous objections. The statements consisted, in the main, of threats to individuals, such as: “[T]hey shut the door and said if anybody comes out of here we’re going to shoot them,” and “They told me that they were going to be back at 5:00 a.m. and I better have drugs or money or they were going to kill me.” The statements also included directives, such as Graham telling the captives in the bedroom that they needed to leave the bedroom door open and Graham and Gordon demanding that they surrender their cell phones.
These statements did not constitute hearsay because they were not presented to prove the truth of the assertions. It is irrelevant and unnecessary to know, for example, whether Graham and Gordon really would have shot anyone who attempted to leave the back bedroom while they interrogated Ashe and Richardson. The situation in this case is different from that in Harris, where the out-of-court threatening statement was offered to prove premeditation in the killing of the person about whom the threat was made. Here, the threats were offered as explanations for why the people who heard the threats responded as they did — staying in a room, for example, or leaving for another town.
Similarly, directives to stay in a certain place or to surrender cell phones were not susceptible to a determination of truthfulness by the jury. Directives are in the imperative mood, unlike statements of fact, which are in the indicative mood. See United States v. Bellomo, 176 F.3d 580, 586 (2d Cir. 1999) (statements offered as evidence of commands or threats directed to the witness, rather than for the truth of the matter asserted, are not hearsay); State v. Leonard, 104 Ohio St. 3d 54, 71-72, 818 N.E.2d 229 (2004) (statements that cannot be true or false are not assertions and cannot be hearsay). Like the threats, these statements came into testimony in the course of explaining why other people engaged in certain conduct. A statement offered to prove the effect on the listener is admissible through the person who heard it. State v. Patton, 280 Kan. 146, 162, 120 P.3d 760 (2005).
We note that, although Becker did not make a contemporaneous objection to the admission of tírese statements, he had been led to believe that the State intended to call Gordon. Even though Gordon remained available for Becker to call as a witness, he was not available for cross-examination because the State ultimately elected not to put him on the stand. As the State conceded at oral argument, Gordon’s presence would therefore not have shielded hearsay statements attributed to him. See State v. Fisher, 222 Kan. 76, 81-82, 563 P.2d 1012 (1977) (declarant must testify at trial before hearsay evidence may be admitted under statutory exception to hearsay rule for previous statement of person who is present and available for cross-examination with respect to that statement and its subject matter). We also note that the safer practice for defense counsel is to make a contemporaneous objection to the admission of hearsay testimony. See Fisher, 222 Kan. at 84 (failure to make timely, specific objections to testimony alleged to have been erroneously admitted bars appellate review of testimony).
Here, however, whether the State duped Becker into relying on Gordon’s testimony in order to allow into evidence the out-of-court statements absent a contemporaneous objection bears no consequence. The out-of-court statements did not violate statutory prohibitions on hearsay testimony because they were not hearsay. These statements were made in the course of the criminal activity, not in the course of the subsequent investigation. Because the statements were not testimonial, that is to say, they were not made in the reasonable expectation of eventual use in a criminal proceeding, the statements also did not violate the Sixth Amendment Confrontation Clause. See State v. Davis, 283 Kan. 569, 574-75, 158 P.3d 317 (2007) (nontestimonial evidence is examined in light of state hearsay statutes); see also Crawford v. Washington, 541 U.S. 36, 51-52, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004) (testimonial statements include statements made in circumstances that would cause objective witness to reasonably believe that the statement would be available for use in future criminal proceedings).
Prosecutorial Misconduct
Becker contends that the prosecutor made statements relating to aiding and abetting that improperly changed the burden of proving intent. He alleges that these comments implied that mere presence at a criminal undertaking may suffice to establish guilt as an aider and abettor without demonstrating the same intent as the principals.
When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole. State v. Warledo, 286 Kan. 927, 948, 190 P.3d 937 (2008).
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the juiy requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009). McRey-nolds sets out additional analytic steps for the court if it finds misconduct.
Becker complains about comments that the prosecutor made during the course of both voir dire and closing argument. During voir dire, the prosecutor informed the jury that it did not have to find that Becker and his cohorts intended to kill Richardson but only that Richardson was killed during the course of their committing a felony.
Becker argues on appeal that this statement of the law was incorrect because the prosecutor failed to inform the jury that the State must prove intent to commit the underlying felonies. We find no reason, however, to create a requirement that a prosecutor must set out every element of every charged crime during voir dire. The prosecutor’s general statement of the nature of the case was accurate.
Also during voir dire, the prosecutor told the jury that a person can be held responsible for the actions of another person:
“[I]n certain circumstances when a person can be held responsible for the actions of another person. And that’s kind of where we get that in for a penny; you might as well bid a whole dollar. It’s like being a little bit pregnant. Even if you’re involved a little bit you’re involved the whole way.”
During closing argument, the prosecutor expanded on this theme:
“I’m a big high school wrestling fan. My son wrestles, I talk about it all the time. We were at a tournament up in Derby, Kansas, this weekend and the kids did pretty good; they won a trophy, a team trophy, and they placed. And at the end you know how these sports things do, the kids all gathered around the trophy and they were taking a picture. And a little 119 pounder, he was off to the side. The coach said, ‘Chase, come on. Get over here. Get in the picture.’ Chase said, ‘Coach, I didn’t have a good tournament. I’ll just be back here.’ He said, ‘No you’re a part of this team just like everybody else. You own as much of this trophy as anybody else.’
“Today we’re here for a much different picture and we find the defendant wanting to step back, step out of the picture saying, I’m not part of that; that’s somebody else.
“Ladies and gentlemen, today is the day that this defendant needs to step up; that he must step up and be held responsible. Today is the day that you tell him, you’re a member of the team that did that. You own this picture. You are responsible for that.”
He also stated:
“We talked in voir dire about the concept in for a penny and in for a pound. And we also talked about the fact that you can’t be a little bit pregnant. And if you aid somebody, if you’re an aider and abettor you can’t be a litde bit involved.”
In addition, he stated:
“You can’t be a little bit involved in a kidnapping. [If] [yjou’re involved, you’re involved. If you’re involved with the kidnapping you’re guiliy of felony murder.”
Taken out of context, these comments may incorrectly suggest that intent to commit the crimes is not essential to proving guilt as an aider and abettor. In the context of his entire argument, however, the prosecutor clearly stated that intent was an essential element. The prosecutor made numerous references to the jury having to find intent. For example, the prosecutor said, “So each time you go to a different count you have to ask yourself did he aid and abet. And when you aid and abet you have to aid and abet with the intent to promote or assist in the commission of the crime. Later, the prosecutor said, “It doesn’t matter if he was terrorized. What matters is if they intended to terrorize him. That was the whole plan; get these people over here, threaten them and find out where the safe is. So was there intent to terrorize him?”
The prosecutor’s comments about aiding and abetting were not improper. They must be read in conjunction with the closing argument as a whole, which asserted the need to find intent on Becker’s part, and in light of the evidence as a whole, which showed that Becker behaved much like a principal and engaged in conduct from which it could easily be inferred that he intended the elements of the crimes charged.
Because the prosecutor accurately stated the law, it is unnecessary to engage in the additional analysis set out in McReynolds. We find no error.
Sufficiency of the Evidence to Support the Kidnapping and Felony-Murder Convictions
Becker argues on appeal that he was convicted of aiding and abetting Gordon and Graham in the kidnappings and attempted kidnapping, but that the State failed to provide sufficient evidence to support a finding that he had the necessary intent to kidnap the five victims. Because kidnapping is a specific-intent crime, the State was required to prove that he had the same specific intent as the principals. A review of the evidence before the jury reveals that ample evidence existed showing that Becker acted as both a prin- cipa! and as an aider and abettor of the various kidnappings of which he was convicted.
When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing 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. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009).
In order to obtain a conviction for kidnapping, the State must prove specific intent. See, e.g., State v. Wiggett, 273 Kan. 438, Syl. ¶ 8, 44 P.3d 381 (2002). For a defendant to be convicted of a specific-intent crime on an aiding and abetting theoiy, that defendant must have the same specific intent to commit the crime as the principal. State v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009).
As Becker was charged and as the jury was instructed, the State had to prove not only that Becker had the general intent to take or confine a person by force, threat, or deception, but also that he had the specific intent to inflict bodily injury or to terrorize the victim or another. See K.S.A. 21-3420(c). The State was also required to prove that he intentionally aided or abetted another to commit the crime with the intent to promote or to assist in the commission of the crime. K.S.A. 21-3205(1); PIK Crim. 3d 54.05.
A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Scaife, 286 Kan. 614, 618-19, 186 P.3d 755 (2008). Specific intent may be shown by acts, circumstances, and reasonable inferences deducible therefrom; it need not be shown by direct proof. State v. Johnson, 258 Kan. 61, 67, 899 P.2d 1050 (1995); State v. Harper, 235 Kan. 825, 828, 685 P.2d 850 (1984) (intent underlying entiy into a building “is rarely susceptible of direct proof; it is usually inferred from the surrounding facts and circumstances”).
The State argued that Becker was guilty of kidnapping Dupree, Rantz, and Stephens under a theoiy of aiding and abetting. This was not a case in which the defendant was sitting passively in the car waiting to drive the other perpetrators away; Becker was actively and violently engaged in the same enterprises as Gordon and Graham. When the three went to the home of Rantz and Watkins, all three forced their way into the house, all three engaged in threatening Rantz, and Recker urged Graham to shoot Rantz. At Gordon s house, Rantz, Dupree, and Stephens were all sent to a back bedroom by Gordon, Graham, and Becker. There was abundant testimony that all three of the men took part in beating and threatening Ashe and forcing him to stay on the couch. There was also abundant testimony that Becker stood guard over Ashe while Gordon and Graham went to the bedroom, threatened the captives there with the gun, and took their cell phones. A jury could easily conclude that Becker acted in concert with Gordon and Graham to carry out the kidnapping of Dupree, Stephens, and Richardson. In fact, it would have taken a remarkable leap of logic for a jury to conclude that Becker did not intend to participate fully in all of the criminal acts, up to and including the shooting.
Becker also contends that insufficient evidence supported a claim that the kidnappings of Stephens and Dupree and the attempted kidnapping of Richardson were carried out with the intent to terrorize or to inflict bodily injury on Ashe or Richardson. The three victims in the bedroom were kept there and deprived of their cell phones while first Ashe and then Richardson were threatened and beaten. A jury could reasonably conclude that the purpose of isolating them was to prevent them from aiding Ashe and Richardson, to prevent them from calling for help for Ashe and Richardson, and to reduce the likelihood that they would witness the harm and threats inflicted on Ashe and Richardson.
Finally, Becker maintains that no separate harm was done to Ashe and Richardson while they were held captive beyond the terror and threats used to keep them restrained. Becker argues that the same terror could not be used as the means of restraint and the objective of the kidnapping. In the case of Ashe, however, there were not only threats and the showing of a gun and handsaws, there was also repeated violent beating in the course of interrogating him about the missing safe. In the case of Richardson, there was both the physical restraint demonstrated by the three men tackling him and pushing him onto the couch and the terror intended by holding a gun to his head while asking him about the safe. Although the elements of forcible restraint and intent to terrorize and do harm overlapped, they were not redundant, and different facts could be used to demonstrate different elements of the offenses.
Because the State offered more than adequate evidence supporting the kidnapping convictions, Becker s challenge to the felony-murder conviction based on the sufficiency of the evidence also fails.
Failure to Give a Unanimity Instruction
The jury was instructed that, in order to find Becker guilty of felony murder, the State had to prove that Richardson was killed while in the commission of the kidnapping of Stephens and/or the kidnapping of Dupree and/or Richardson. Becker did not request a specific unanimity instruction. Becker now contends on appeal that allowing the jury to convict him of felony murder based on three alternative underlying felonies, without requiring the jury to specify on which felony it relied, denied him a unanimous verdict.
In the absence of a requested unanimity instruction, an appellate court reviews for error under the clearly erroneous standard. State v. Foster, 2010 WL 2331156, at *3 (Kan. 2010); State v. Voyles, 284 Kan. 239, Syl. ¶ 4, 160 P.3d 794 (2007). We will find instructions to be clearly erroneous only if we are firmly convinced that there is a real possibility die jury would have rendered a different verdict had the trial error not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Becker contends that this is a multiple acts case — the three kidnappings constituted multiple acts, each one requiring unanimity by the jury as to guilt. The State counters that this is an alternative means case — that any of the three kidnappings or the kidnappings in combination could provide a basis for the felony murder.
Alternative means and multiple acts cases are distinguished as follows:
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“ ‘In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ [State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 (1988)].” State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994).
This case involved alternative means. A single offense was committed — the unlawful shooting of Richardson — which could have been committed in more than one way. In an alternative means case the jury must be unanimous as to guilt for the single crime charged, but need not be unanimous as to the particular means by which the crime was committed, so long as substantial evidence supports each alternative means. State v. Wright, 290 Kan. 194, 201-07, 224 P.3d 1159, 1164 (2010). It is for this court to determine on review whether each of the means presented — three different kidnappings or attempted kidnappings — could, as a matter of law, have been accepted by the jury as proven beyond a reasonable doubt.
On the sufficiency of evidence point, Becker argues that the prosecutions case hit a stumbling block because of the completion of the acts of kidnapping. He contends that Richardson got off the couch after being forced to sit down and the kidnapping attempt was completed at that time. He further contends that the shooting of Richardson was in no way causally connected to the kidnappings of Dupree and Stephens. In other words, because all or part of the jury could have relied on a felony with an inadequate connection to the murder, Becker asserts he is entitled to reversal.
Acceptance of this argument requires an impossible stretch of the imagination. The four people in the back bedroom were being held there in part so that Becker and the others could terrorize and beat Ashe and then Richardson. The kidnappings and the murder were closely related. Although Richardson got up to leave the house, the perpetrators attempted to stop him, and it was as he was attempting to escape his captivity that he was shot. We cannot conclude that the attempted kidnapping of Richardson was completed by that time.
It is not, however, necessary to engage in speculation about whether the jury properly considered the causal link between the kidnappings and die shooting. The jury was instructed that, in order to find Becker guilty of felony murder, it would have to find that the shooting “was done while in the commission of’ the kidnappings. Appellate courts presume that a jury followed the juiy instructions. City of Mission Hills v. Sexton, 284 Kan. 414, 438, 160 P.3d 812 (2007). In essence, Becker urges this court to speculate that the jury did not follow the instruction; that it instead ignored the “while in the commission of’ language and possibly determined that the kidnappings were already completed and thus unrelated to the shooting. This speculation is particularly unwarranted, given the great weight of evidence against Becker that was presented at the trial.
We find there was no error in the failure to give a specific unanimity instruction.
Failure to Give an Unintentional Second-Degree Murder Instruction
The district court instructed the jury on felony murder, intentional second-degree murder, and involuntary manslaughter. Becker contends on appeal that the trial court erred by failing to give an instruction on the lesser included offense of unintentional second-degree murder. He did not object at trial to the lack of that instruction, and he did not propose the instruction.
An appellate court reviewing a district court’s failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. State v. Coopenoood, 282 Kan. 572, 581, 147 P.3d 125 (2006); see K.S.A. 22-3414(3).
“When a murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is tantamount to the elements of deliberation and premeditation that are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.” State v. Hoffman, 288 Kan. 100, Syl. ¶ 4, 200 P.3d 1254 (2009).
The State relied on three kidnapping counts to establish the felonies underlying the felony-murder count. Becker argues that the evidence supporting the kidnappings was weak, inconclusive, or conflicting. The analysis of whether the evidence supported the kidnapping counts returns to the argument Becker raised in his third issue. As we discussed above, the evidence supporting the kidnappings was strong and conclusive.
The jury found that Becker killed Richardson while committing an inherently dangerous felony. It would not matter whether the jury believed the killing was intentional or merely reckless or even committed in attempting to protect himself. In order to find the possibility that the jury might have convicted under a theory of unintentional second-degree murder, this court would have to find ping counts. We refuse to make such a finding.
The conviction is affirmed. | [
-79,
-24,
-7,
-66,
56,
-30,
42,
-8,
112,
-123,
-78,
83,
45,
-53,
5,
123,
-104,
61,
84,
105,
86,
-73,
39,
35,
-78,
-77,
-15,
-47,
-78,
75,
-74,
-58,
12,
112,
-54,
93,
102,
-118,
-25,
-44,
-118,
7,
-80,
-30,
-126,
64,
36,
59,
38,
10,
113,
-98,
-29,
42,
22,
-25,
40,
44,
75,
-83,
16,
-15,
-117,
15,
-55,
20,
-94,
-92,
-102,
7,
-8,
60,
-44,
-15,
2,
-24,
-13,
-122,
16,
-11,
109,
-119,
12,
38,
99,
1,
89,
-18,
105,
-127,
15,
111,
-105,
-89,
24,
72,
73,
36,
-106,
-35,
100,
54,
34,
-4,
-27,
30,
29,
-28,
-128,
-33,
-48,
-109,
-51,
120,
-120,
-70,
-5,
37,
32,
112,
-57,
-30,
93,
69,
120,
-67,
-114,
-14
] |
The opinion of the court was delivered by
Johnson, J.:
A jury convicted Randy Marler of rape, aggravated indecent liberties with a child under age 14, and endangering a child; the district court imposed two hard 25 life sentences to be served consecutively. Marler appeals his convictions and sentences, claiming: (1) The district court erroneously admitted evidence of Marler s prior drug use under K.S.A. 60-455; (2) the district court gave an erroneous limiting instruction on the drug use evidence; (3) the district court erred in denying Marler’s departure motion; and (4) the sentences imposed were disproportionately severe in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. We affirm both the convictions and the sentences.
Factual and Procedural Overview
The charges against Marler alleged that he committed sexual acts upon his 13-year-old daughter, H.M. The allegations were originally brought to light when Marler’s wife, Pam, applied for a protection from abuse (PFA) order, in which she related that she had witnessed Marler having oral sex with H.M. Pam sought the PFA order a few days after Marler was arrested and incarcerated as a result of a fight with Pam.
After the PFA application, Pam and H.M. were interviewed about the sexual abuse incident. H.M. reported that, on a Sunday evening, her father had given her IV2 measuring cups of Nyquil, together with some pills, which made her drift in and out of a sleep-like state for the next 3 days. She recalled awakening in bed and discovering that she was naked and that Marler had his head between her legs, “licking her ‘down there.’ ” H.M. also recounted that on at least three other occasions Marler had touched her breasts and her crotch over the top of her clothing.
Pam related a similar version of the events, reporting that on a Sunday evening Marler had given H.M. Nyquil and a pill which she thought was either Valium or Xanex. The next day, upon returning home from picking up her son from school, Pam discovered Marler in bed performing oral sex on H.M. After she yelled at him to stop, Marler left the room, at which point Pam climbed into bed with H.M. She later awoke to find Marler in the bed, again performing oral sex on H.M. Pam was granted use and derivative use immunity for her trial testimony, and, at trial, she also testified about using methamphetamine with Marler.
Captain Jeff Hawkins questioned Marler about the allegations. Marler related that both he and Pam had been using metham-phetamines for several months and that during that time they both discussed having a sexual encounter with H.M. Marler claimed that it was Pam who provided the Nyquil and gave H.M. two or three Xanex tablets. He then reported that he took H.M. on an errand to Wichita and upon their return, Pam ordered H.M. to undress and get into bed. Marler alleged that Pam performed sex acts on H.M. He also stated that while Pam was picking up their son from school, he attempted to get back “with the plan” by positioning his head between H.M.’s legs so it would look as though he was having oral sex with her when Pam came back into the room. Captain Hawkins asked Marler to draft a written statement, and Marler complied with the request, bringing a handwritten, eight-page statement to Hawkins the next afternoon. The statement recounted the events as Marler had described them to Captain Hawkins the day before. It also included multiple references to Marler s methamphetamine use, which he blamed for his conduct. Captain Hawkins videotaped as he reviewed with Marler the contents of the written statement.
At trial, Marler recanted his written statement and claimed that he made it up in order to protect the children. His hope was that by implicating Pam, the children would be removed from her care. Accordingly, when the children were removed from the home and out of danger, he felt free to recant his false confession. However, Marler never objected to the introduction of his prior confessions.
A jury found Marler guilty of rape, aggravated indecent liberties with a child under 14, and endangering a child, but acquitted him of aggravated criminal sodomy. Marler moved for a departure sentence, arguing that his supportive family and employment history justified a downward departure. He also filed a motion for a new trial “based on the erroneous rulings during the trial” and pretrial. Both motions were denied. Marler was sentenced to two consec utive hard 25 life sentences. He filed a timely appeal directly with this court pursuant to K.S.A. 22-3601(b)(l).
Admissibility of Prior Drug Use Evidence
Marler complains that there was no pretrial hearing to determine whether evidence of his prior drug use was relevant to prove plan, preparation, or the nature of the relationships within the Marler family, so as to be admissible under K.S.A. 60-455. He describes the offending evidence as the State’s reference to Marler’s drug usage during opening statements; Pam Marler’s testimony that she and Marler did drugs and that he possessed Valium, Xanex, and methamphetamine; Captain Hawkins’ testimony that Marler admitted during their interview that he and his wife had been using methamphetamine over an 8-month period; and Marler’s eight-page written confession in which he blamed his actions on his methamphetamine use. However, in arguing against the admissibility of the evidence, Marler refers generally to his prior drug use, rather tiran identifying “a crime or civil wrong on a specified occasion.” K.S.A. 60-455.
Nevertheless, we need not analyze the propriety of admitting any of the evidence of Marler’s prior drug use under the provisions of K.S.A. 60-455. Marler’s brief contains the concession that “Mr. Marler did not object to the admission of this K.S.A. 60-455 evidence.” K.S.A. 60-404 instructs us that Marler’s conviction cannot be reversed or set aside “by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear tire specific ground of objection.” The record in this case does not reflect that Marler filed a motion to suppress or a motion in limine to restrict the evidence which the State could produce, nor does it contain any objection based upon K.S.A. 60-455 during the trial. In short, Marler did not preserve the issue for appeal. See, e.g., State v. Riojas, 288 Kan. 379, 385, 204 P.3d 578 (2009).
Marler does not explicitly argue that an exception to the contemporaneous objection rule should apply, and we do not view this case as an appropriate candidate for any such exception. The principal rationale for requiring a contemporaneous objection is to give “ ‘ “ ‘the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial.’ ” State v. Moore, 218 Kan. 450, 455, 543 P.2d 923 (1975).’ ” State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009) (quoting State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 [2008]). The record in this case does not reflect that the trial court had any such opportunity with respect to Marler’s prior drug use, either before or during the trial. Moreover, we discern a distinct possibility that Marler’s failure to object to the evidence of his drug use might have been intentional. The evidence that he and his wife did drugs together would have helped explain the defense theory that his wife was the real culprit. Likewise, in Marler’s written statement, he relied on tire evidence of drug use to attempt to diminish his culpability for his participation in the plan.
In conclusion, we find that Marler’s challenge to the admissibility of evidence of his prior drug use was not preserved for appeal, and we decline to address the issue.
Limiting Instruction
At the instruction conference, the court advised counsel that the court had noted the introduction of evidence of several other crimes, which had been admitted without an objection, and that the court was proposing to give a limiting instruction. Defense counsel acknowledged that the defense had wanted some of the other crimes evidence to be admitted, specifically acknowledging that the evidence of domestic violence supported the defense theory that Pam had a motive to He and to get H.M. to He about the incident. Both parties specifically responded to the court’s inquiry, noting that there was no objection to the proposed instruction, the relevant portion of which read:
“Evidence has been admitted tending to prove that the defendant committed crimes, namely the use and possession of controlled substances, other than the present crimes charged. This evidence may be considered solely for the purpose of proving defendant’s plan (mode of operation), defendant’s preparation, and the nature of the relationships within the Marler family.”
On appeal, Marler now complains that the instruction would have confused the jury because none of the listed purposes was applicable in this case, and that the instruction would have misled the jury by overemphasizing factors that supported the State’s theory.
A. Standard of Review
Marler acknowledges that trial counsel did not object to the limiting instruction.
“No party may assign as error the giving or failure to give an instruction, . . . unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 22-3414(3).
See State v. Vasquez, 287 Kan. 40, 51, 194 P.3d 563 (2008); State v. Murdock, 286 Kan. 661, 684-85, 187 P.3d 1267 (2008). Instructions are clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred. Vasquez, 287 Kan. at 51.
B. Analysis
In arguing against the admissibility of the prior drug use evidence in the first issue, Marler discusses our prior cases which have endeavored to define when other crimes evidence falls within the K.S.A. 60-455 material facts of “plan” and “preparation.” See, e.g., State v. Pnne, 287 Kan. 713, 729-36, 200 P.3d 1 (2009) (discussing mode of operation theory of “plan”); State v. Gibson, 30 Kan. App. 2d 937, 945, 52 P.3d 339, rev. denied 274 Kan. 1115 (2002) (discussing “preparation”). In this instruction issue, Marler contends that because his prior drug use does not fit nicely within our prior cases’ definitions of plan and preparation evidence, the jury would have been confused by the inclusion of those terms in the limiting instruction. That argument apparently assumes that the lay jurors would have known that the words “plan (mode of operation)” and “preparation” were meant to refer to esoteric legal doctrines, and, therefore, the jurors would have been befuddled by the inapplicability of those legal definitions in this case. We do not accept the premise that the jurors would have known those legal definitions in the absence of a jury instruction defining them.
What the jurors would have known is that Marler’s original statements described how he became involved with methamphetamine; how he introduced his wife to the drug; how the couple’s mutual drug use led them to experiment with unusual sex acts; how the drug use emboldened the couple to hatch a plan to drug their daughter and use her for their sexual purposes; and how the couple prepared for and executed the plan. His written statement explicitly refers to the couple’s agreement to drug and sexually abuse their daughter as “the plan.”
Accordingly, the instruction that the jury was permitted to consider the evidence of “the use and possession of controlled substances, . . . solely for the purpose of proving defendant’s plan (mode of operation), defendant’s preparation, and the nature of the relationships within the Marler family” would not have been confusing to the jury under the facts of this case. The logical conclusion for the jurors would have been that they were not to consider the drug evidence for the purpose of criminal propensity or other prohibited use. Rather, the evidence was to be considered solely in the context of the changing relationship between Marler and his wife, their subsequent plan to drug and sexually abuse their daughter, and their preparation and execution of that plan.
In reaching this decision, we do not intend to abandon our precedent discussing when evidence of other crimes or civil wrongs fits within the categories of relevant material facts described as “plan” or “preparation,” so as to be admissible. We are simply holding that the limiting instruction given in this case was not confusing to the jury and was not clearly erroneous. We discern no real possibility that the jury would have rendered a different verdict had the instruction not been given.
Denial of Downward Departure
Next, Marler asserts that the district court erred in denying his motion for downward durational departure. He claims that the presence of mitigating circumstances should have compelled the district court to deviate from the statutorily prescribed sentence.
A. Standard of Review
Marler attempts to invoke a de novo standard of review by characterizing the issue as involving statutory interpretation. To the contrary, there is no dispute as to what the statute provides or with how the district court applied those provisions. Marler s complaint is simply that the court did not reach the decision which Marler wanted.
In that context, we review the denial of a sentencing departure motion for an abuse of discretion. State v. Seward, 289 Kan. 715, Syl. ¶ 4, 217 P.3d 443 (2009). “Judicial discretion is abused ‘when no reasonable person would take the view adopted by the district judge.’ ” ’ ” Seward, 289 Kan. 715, Syl. ¶ 4.
B. Analysis
Pursuant to K.S.A. 21-4643(d), the sentencing court “shall” impose a hard 25 life sentence, “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” A substantial reason is one that is “ ‘real, not imagined; something with substance and not ephemeral,’ while the term “compelling” implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.’ State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).” Seward, 289 Kan. at 722; State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008).
On appeal, Marler principally relies on his assertions that he had a very supportive family and had the potential to be gainfully employed. Below, trial counsel argued that Marler evidently had the support of his family because a sister and a brother attended the trial and another brother stayed in contact with defense counsel. Further, although Marler was unemployed at the time of the offenses, counsel argued that Marler believed he would be able to gain and maintain employment, given his significant job history. Pointedly, when given the opportunity to present evidence to support the asserted mitigating circumstances, counsel declined and chose to stand on his arguments.
Marler points to State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001), abrogated on other grounds by State v. Martin, 285 Kan. 735, 175 P.3d 832 (2008), in support of his argument that a supportive family and good employment record compel departure. First, Marler reads too much into the Murphy opinion. That decision acknowledged that a good employment record and a supportive family could be proper factors to consider when analyzing a departure motion, but those factors do not require departure. See Murphy, 270 Kan. at 807 (considering the factors in totality with other factors such as the defendant’s young age and acknowledging that employment record is not enough on its own to justify departure).
Next, Marler is hampered by the absence of any evidence to support the claimed factors. The fact that family members may have attended the trial or contacted the defense attorney does not necessarily lead to the conclusion that they would be ready, willing, and able to support Marler’s rehabilitative efforts. Likewise, Marler’s belief that he could become gainfully employed, notwithstanding his unemployment at the time of the offenses, is unpersuasive, at best. The district court would have been justified in finding that Marler had not presented substantial and competent evidence to support the existence of the claimed mitigating factors. Certainly, then, we cannot find an abuse of discretion in the district court’s determination that the claimed factors did not force the court to leave the status quo and depart from the ordinaiy.
Cruel and Unusual Punishment
Finally, Marler claims that he was sentenced much more severely than if he had intentionally killed H.M., and, therefore, his sentence is unconstitutionally disproportionate.
A. Standard of Review
Constitutional challenges to statutes present questions of law subject to this court’s unlimited review. Seward, 289 Kan. at 718. Generally, constitutional issues are not addressed when asserted for the first time on appeal. 289 Kan. at 718. However, Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), recognized three exceptions: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.
B. Analysis
Marler argues that his two consecutive, hard 25 life sentences constitute cruel and unusual punishment, violating the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. He acknowledges that this court has previously refused to consider such claims when asserted for the first time on appeal, because the issue requires factual findings by the district court. See State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Marler attempts to distinguish his circumstance because he had a trial, during which the facts were developed, and, therefore, this court has a sufficient record from which to decide the issue.
We have already rejected that distinction. In State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009), the defendant attempted to distinguish the facts of his case from Ortega-Cadelan by arguing that the record was sufficient for this court to make the factual determinations necessary to complete the analysis of whether the defendant had been subjected to a cruel and unusual punishment. In denying that argument, this court stated: “This argument ignores the role of this court: Appellate courts do not make factual findings but review those made by district courts. [Citation omitted.] Here, no factual findings were made upon which this court can base an analysis of whether the sentence is cruel or unusual.” 288 Kan. at 161.
Marler did not even suggest to the district court that he was claiming an unconstitutionally disproportionate sentence. Cf. State v. Seward, 289 Kan. at 721 (remand to district court for findings where defendant raised cruel and/or unusual punishment issue below). Accordingly, Marler did not preserve the issue for appeal, and we decline the invitation to engage in the appellate fact-finding which would be required to consider the issue for the first time on appeal.
Affirmed. | [
112,
106,
-67,
126,
26,
35,
42,
20,
18,
-105,
55,
115,
-85,
-62,
4,
123,
19,
127,
20,
97,
-45,
-73,
119,
-63,
-10,
-5,
-72,
-47,
-78,
75,
-84,
-75,
12,
112,
-54,
117,
-94,
-62,
-73,
92,
-122,
3,
-119,
-16,
-46,
2,
38,
123,
66,
15,
49,
31,
-13,
42,
-100,
-46,
9,
30,
75,
-67,
88,
-79,
-5,
21,
89,
18,
-79,
38,
-100,
7,
-16,
39,
-36,
57,
0,
-24,
-13,
-90,
-124,
52,
95,
8,
-92,
98,
98,
32,
-83,
-60,
44,
-120,
-113,
127,
-100,
-121,
-102,
88,
96,
45,
-73,
-43,
100,
87,
43,
126,
-29,
14,
53,
108,
-60,
-61,
-108,
-109,
-51,
104,
-44,
-8,
-29,
44,
1,
101,
-43,
-92,
84,
-41,
114,
-97,
-2,
-78
] |
The opinion of the court was delivered by
Biles, J.:
Merardo Garza, Jr., appeals his sentence and convictions of aggravated indecent liberties with a child pursuant to K.S.A. 21-3504(a)(3)(A) and rape of a child under 14 years of age pursuant to K.S.A. 21-3502(a)(2). He was sentenced to life in prison with a mandatory minimum sentence of 25 years under K.S.A. 21-4643, commonly known as Jessica’s Law. This court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
The following questions are raised on appeal: (1) Was Garza entitled to new counsel before trial? (2) Did the district court exclude relevant evidence? (3) Was the charging document insufficient to sentence Garza to an off-grid crime because it did not list his age as an element of the crime? (4) Should Garza’s sentence be vacated and remanded for resentencing under State v. Bello, 289 Kan. 191, 195-200, 211 P.3d 139 (2009), and its progeny? (5) Did Garza preserve his claim that the off-grid sentence amounts to a cruel and unusual punishment? (6) Is the departure provision in K.S.A. 21-4643(d) unconstitutional because it allows arbitrary and capricious decision making? and (7) Should Garza’s conviction of aggravated indecent liberties with a child be reversed and vacated because he was charged in the alternative?
We affirm Garza’s conviction of rape of a child under 14 years of age. We reverse and vacate his conviction of aggravated indecent liberties with a child because this offense was charged in the alternative. Our case law holds a defendant cannot be convicted of both offenses when the crimes are charged in the alternative. State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992). But Garza’s sentence is affirmed nonetheless because the district court did not actually sentence him for the aggravated indecent liberties conviction. Other issues raised are addressed below and resolved against Garza.
Factual and Procedural Background
Garza and his wife, Amy, have four children, including the child victim, M.G. Garza also has two stepdaughters, X.S., who was 13 years old, and A.C., who was 11 years old. They lived with Garza. The incident giving rise to this case occurred on a Saturday evening after M.G. and other family members returned home from visiting relatives after midnight.
M.G. testified she lay down on the living room floor to go to sleep. Garza was lying on the couch. M.G. testified Garza lay beside her, “put his fingers in [her] vagina and like wiggled them.” She took his hand out of her pants two times, and then he rubbed her bottom on the outside of her pants. The next day, M.G. told her stepsisters. Then, she told her mother. Her mother took her to the hospital for an evaluation, and the incident was reported to police.
Garza’s defense theory was that Amy forced M.G. to make a false accusation. He relied on testimony from one of his other daughters, who testified Garza and Amy had previously fought and that Amy went to jail. The daughter also testified Amy had said she would he to put Garza in jail. Garza testified he caught Amy communicating with other men on the Internet. He also testified M.G. was supposed to go to Kansas City with her uncle the night of the incident, but Amy did not let her go.
The information charged Garza with aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) and (c) and, in the alternative, rape under K.S.A. 21-3502(a)(2) and (c). Both were listed as off-grid person felonies, and Garza’s date of birth was listed as 1969. Neither charge included Garza’s age as an element of the offense. At trial, the investigating detective testified Garza was over 18 years of age. The district court issued the elements instruction from PIK Crim. 3d 57.06 and PIK Crim. 3d 57.01. The instructions did not include Garza’s age as an element of the offenses, and the jury did not make a finding regarding his age. He was convicted of both offenses.
Garza filed a downward departure motion on his own behalf, and his counsel also filed a motion seeking a downward departure. Garza’s counsel’s motion stated: “This is a ‘Jessica’s Law’ case and the presumptive sentence is Life with parole eligibility in 25 years. The defendant would state that such a sentence would amount to cruel and unusual punishment. The Court has the option to depart to the sentencing guidelines and impose a guideline sentence.” •
At the hearing on these motions, Garza argued a departure was appropriate because a life sentence exceeds the degree of harm committed in this case. He also argued he was entitled to a departure sentence because his criminal histoiy only includes one mis demeanor conviction. Finally, Garza cited the sexual offender evaluation, which determined Garza had a low risk of reoffending and that sexual offender treatment would be appropriate. The district court held it was required to find substantial and compelling reasons to depart. After addressing each claim, it held departure was not warranted. Garza filed a timely appeal.
While his appeal was pending, Garza filed a letter of additional authority under Supreme Court Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47), citing this court’s recent holdings that the defendant’s age is an element of the offense that must be determined by the jury to sentence for an off-grid offense. See State v. Morningstar, 289 Kan. 488, Syl. ¶¶ 2-3, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, Syl. ¶¶ 10-11, 212 P.3d 215 (2009); Bello, 289 Kan. 191, Syl. ¶¶ 3-4.
Issue 1: Entitlement to New Counsel
Refore voir dire, Garza requested substitute counsel. The district court denied the motion finding Garza had not presented sufficient grounds to appoint new counsel. On appeal, Garza argues he established “justifiable dissatisfaction” with his appointed counsel and he was entitled to have new counsel appointed. He argues his trial counsel was not prepared, citing concerns about the attorney’s failure to provide a preliminary transcript and to secure witness testimony. The State argues the district court did not err by refusing to appoint new counsel because Garza did not establish justifiable dissatisfaction with his trial counsel.
Standard of Review
Appellate courts review the district court’s refusal to appoint substitute trial counsel for an abuse of discretion. “Judicial discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable.” State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The test is whether any reasonable person would take the view adopted by the district court. 280 Kan. at 894.
Refore substitute counsel is appointed, a defendant must establish “justifiable dissatisfaction” with his or her current counsel. This may be established by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the defendant and appointed counsel. 280 Kan. at 894. Ultimately, a district court is justified in denying a request for new counsel if there is a reasonable basis for believing.the attorney-client relationship has not deteriorated to a point that appointed counsel could not give effective aid in the presentation of the client’s defense. State v. Bryant, 285 Kan. 970, 986, 179 P.3d 1122 (2008). Garza argues there was an irreconcilable conflict.
Analysis
Garza requested new counsel citing the following complaints: (1) Counsel failed to provide him with a copy of the preliminary hearing transcript; (2) counsel failed to contact witnesses; (3) counsel lied; and (4) Garza did not feel counsel was prepared to proceed.
Regarding the preliminary hearing transcript, counsel stated he was unsure if a preliminary transcript had been ordered, but he would check and provide Garza a copy if one was available. The district court indicated counsel should look into getting the transcript but noted the failure to provide a transcript was not grounds for appointing new counsel because defendants do not have a constitutional right to a transcript. Counsel subsequently asked for a continuance to check the clerk’s office, which was granted. The proceedings resumed without mentioning whether a transcript was provided, but the record indicates the preliminary hearing transcript was not prepared until after trial.
We must decide whether the failure to have the preliminary hearing transcript prepared for use at trial demonstrates an irreconcilable conflict existed between Garza and his attorney. We find it does not. Defendants are not automatically entitled to preliminary hearing transcripts. Indigent defendants are only entitled to transcripts required for an effective defense. Two factors are used to determine whether a transcript is required: (1) the necessity of the transcript for the defendant and (2) the availability of alternative devices. State v. Ruebke, 240 Kan. 493, 497, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
Garza’s wife and M.G. both testified at the preliminary hearing. A review of the record demonstrates they were thoroughly cross- examined during trial. Garza’s counsel was present at the preliminary hearing, so he was personally aware of these witnesses’ prior testimony at the preliminary hearing. As such, the district court correctly found the failure to request a transcript did not demonstrate an irreconcilable conflict.
The complaints regarding counsel’s failure to contact witnesses and Garza’s accusation that his counsel lied are actually the same issue. Garza did not believe one witness would be willing to appear in court because the witness had an outstanding warrant. Garza believed counsel lied when counsel told him the witness had agreed to testily. Counsel stated he became aware of the witness the previous evening, spoke with him, and the witness agreed to testify. The attorney said he was meeting with the witness that afternoon. Counsel also acknowledged Garza may have had valid reservations about the witness because of the outstanding warrants, but he intended to follow up. Finally, the attorney said he intended to issue a subpoena for the witness if he kept the scheduled appointment and had meaningful testimony.
The district court held it was not counsel’s fault the witness was not subpoenaed earlier because the information had just come to light and a continuance would be the more appropriate remedy if the witness could not be subpoenaed. A reasonable person would agree with the district court’s denial on this issue. Garza’s argument anticipated problems that had not occurred, and the better remedy would be to seek a continuance if the subpoena could not be served. At trial, no witnesses were called for the defense, but the record is silent as to why. No additional argument was made on appeal about the failure to call any defense witnesses.
As to Garza’s final point raised at trial — that he did not feel counsel was prepared to proceed — Garza’s counsel said he was prepared. The district court found counsel had not done anything fhat prevented him from being prepared for trial. We agree.
For the first time on appeal Garza argues he was entitled to new counsel because Garza stated he wanted to seek a continuance before voir dire to subpoena the witness but his counsel did not file the motion. Generally, new legal theories cannot be raised for the first time on appeal. State v. Kirtdoll, 281 Kan. 1138, 1149, 136 P.3d 417 (2006). Garza does not assert an exception applies. The district court could not have erred by refusing to appoint new counsel when the theory was not presented.
But even if this issue were properly raised, it would fail because counsel had time to seek a continuance after the scheduled meeting with the witness if he could not issue the subpoena to secure the witness’ presence at trial. This circumstance does not signal an irreconcilable conflict existed between Garza and his attorney.
Issue 2: Exclusion of Evidence
Garza next argues the district court twice improperly excluded relevant evidence. The State disputes this. On review, we find only one instance in which the district court actually excluded evidence as claimed, and that evidence was irrelevant.
Standard of Review
The first step when reviewing the exclusion of evidence is to determine whether the evidence is relevant. K.S.A. 60-401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” See State v. Henson, 287 Kan. 574, 578, 197 P.3d 456 (2008). This definition encompasses two components: whether the evidence is probative and whether it is material. 287 Kan. at 578; see State v. Dixon, 289 Kan. 46, 69-70, 209 P.3d 675 (2009). Probative evidence is evidence that “ ‘furnishes, establishes or contributes toward proof.’ ” Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 167, 975 P.2d 1218 (1999). It is reviewed under an abuse of discretion standard. Dixon, 289 Kan. at 69. Material evidence goes to a fact at issue that is significant under the substantive law of the case. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The determination whether evidence is material is reviewed under a de novo standard. Dixon, 289 Kan. at 69.
Once relevance is established, the evidentiary rules governing the admission or exclusion of evidence are applied as a matter of law or in the exercise of judicial discretion, depending on the applicable rule. But if the adequacy of the legal basis is questioned, appellate courts review this issue de novo. 289 Kan. at 70; State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).
Analysis
First, Garza sought to admit evidence that Amy (M.G.’s mother and Garza’s wife) had an Internet relationship with another man, who moved in after Garza’s arrest, and Amy left the man alone with the children. The district court allowed testimony that a man moved into the house after Garza’s arrest. The State objected before the next question. During a discussion at the bench, Garza’s counsel stated he intended to ask whether Amy left the children alone with this man to show she was not concerned for her children’s safety. The following exchange occurred:
“THE COURT: Now that’s getting way out of field on it because that doesn’t have anything to do with the motive for her having her child falsify the aggravated situation.
“[THE STATE]: Before he goes into anything like this in his case in chief, I want to have a hearing outside the presence of the jury because I don’t think it’s relevant.
“[GARZA’S COUNSEL]: I won’t go there.
“THE COURT: Okay.”
Garza’s counsel returned and began questioning Amy on another issue. The transcript demonstrates only that the trial court questioned relevance, but it did not rule on the objection. Garza voluntarily declined to pursue the questioning further, presumably to avoid submitting additional testimony to establish relevance. Therefore, Garza’s challenge to this issue on appeal is misplaced.
Second, Garza challenges the exclusion of testimony from the victim’s sister, A.C., regarding whether Garza once became upset “with you and the siblings and even Amy looking at inappropriate websites.” Garza argued it was relevant to show how the household was run, would demonstrate Garza was firm on inappropriate behaviors, and was admissible because it was not a specific instance of conduct. The State objected, arguing it was irrelevant and inadmissible as a specific instance of conduct described to impeach. The State argued Garza had already established how the household was run because one of Garza’s stepdaughters had just testified she thought her dad would ground them for looking at inappropriate material. The district court sustained the objection.
Before addressing the testimony’s relevance, it should be noted Garza failed to proffer how A.C. would have testified. The question itself does not clearly indicate the substance of the evidence as required by K.S.A. 60-405, which states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
Counsel’s question contained avague reference to inappropriate websites and suggested the websites were sexually explicit. Garza’s appellate counsel now argues for the first time on appeal that this information was relevant to establish the children’s knowledge of sexual material. But this assumes evidence not in the record because counsel did not establish what he deemed an “inappropriate website” for an 11-year-old child, and it is unclear whether the victim, M.G., was involved in the incident allegedly involving her sister. Garza is not entitled to claim error because he did not make a proffer. See State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993) (“It is well established that a party may not assert error based on the erroneous exclusion of evidence in the absence of a proffer of that excluded evidence.”).
But even assuming the term “inappropriate websites” establishes A.C., her siblings, and Amy viewed pornography and Garza subsequently disciplined the children, this subject matter does not support Garza’s case. His defense theory was that M.G. made a false allegation because Amy encouraged it to get Garza out of the house without losing custody of the children. Evidence the children viewed pornography does not establish or contribute toward proof that Garza’s testimony was more credible than M.G.’s or Amy’s. In addition, while evidence suggesting Garza was the only parent who disciplined the children for viewing inappropriate websites helps establish Garza was firm on inappropriate behaviors, as he claimed, the evidence was not material to a fact at issue. Garza argued at trial that M.G. lied because Amy made her. The district court was correct to exclude this evidence.
Issue 3: Sufficiency of the Charging Document
Garza next argues the district court lacked jurisdiction to sentence him under K.S.A. 21-4643 because the charging instrument did not allege he was 18 years of age or older. He argues he should be sentenced under the guidelines because of this defect. This issue was raised for the first time on appeal, and it fails under this court’s analysis in Gonzales, 289 Kan. 351, and State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009).
Whether a charging document sufficiently confers subject matter jurisdiction is a question of law subject to unlimited review. The test governing the sufficiency of the charging document depends upon when the issue is raised. If it is challenged for the first time on appeal, the defendant must show the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial. Gracey, 288 Kan. at 254.
In Gonzales, 289 Kan. at 368-69, and Gracey, 288 Kan. at 256-57, this court upheld the charging document’s validity under identical facts to those presented here. In all three cases, the information’s caption contained the defendant’s date of birth and the document stated it was. for an off-grid felony. Under these circumstances and in light of the standard of review, this court held the defendant was adequately informed about the crime charged and the penalty. Gonzales, 289 Kan. at 369; Gracey, 288 Kan. at 257. We believe the same is true in this appeal. The failure to allege Garza was 18 years of age or older does not invalidate his conviction.
Issue 4: Proof of defendant’s age under Jessica’s Law
As mentioned above, in Morningstar, Gonzales, and State v. Bello, 289 Kan. 191, 211 P.3d 139 (2009), this court held the defendant’s age had to be submitted to the jury before a defendant could be sentenced to an off-grid offense under K.S.A. 21-4643. Garza was convicted of rape, and he was sentenced to an off-grid offense under K.S.A. 21-3502 and K.S.A. 21-4643. The State concedes Garza’s age was not submitted to or determined by the jury.
But unlike Morningstar, Gonzales, and Bello, there was evidence regarding Garza’s age presented to the jury. In this case, a detective testified Garza was older than 18 years of age. Nevertheless, Garza argues his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because his age— or the determination of whether he was 18 years of age or older— was an element of both aggravated indecent liberties with a child and rape when sentenced to the off-grid crimes under K.S.A. 21-4643. Bello and its progeny rely on Apprendi and the subsequent cases following Apprendi for their holdings.
Garza also argues the harmless error analysis recognized in State v. Daniels, 278 Kan. 53, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004), does not apply because of the importance assigned to the right to have a jury determine each element of the offense under Apprendi. The State argues Garza’s age is not an element of the offense and it was not required to be submitted to the jury. The State does not address whether the harmless error analysis in Daniels applies.
According to Daniels, the failure to instruct a jury on an essential element is harmless error if “ ‘a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.’ ” 278 Kan. at 62. This analysis is based upon Neder v. United States, 527 U.S. 1, 17-19, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999).
In State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010), we recently considered whether the failure to instruct the jury on this element of the crime was harmless when the trial record actually contained uncontested evidence about the defendant’s age that would have permitted the jury to make the appropriate finding, if properly instructed to do so. In Reyna, we concluded that a harmless error analysis was applicable. 290 Kan. at 682.
The Reyna court analyzed the issue in light of this court’s decisions in Daniels, 278 Kan. at 57, and State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003), as well as Apprendi and Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006). In Recuenco, the Court concluded that “[fjailure to submit a sen- tenting factor to the jury, like failure to submit an element to the jury, is not structural error.” 548 U.S. at 222. After reviewing these decisions, our court in Reyna explained its holding as follows:
“Daniels stands for the proposition that this court will apply the harmless error analysis to the omission of an element from the instructions to the jury when a review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. And Re-cuenco stands for the proposition that characterizing the omission as an Apprendi-type error, i.e., judicial factfinding of the omitted element when that element enhances the maximum applicable sentence, does not change that analysis.” Reyna, 290 Kan. at 681.
In Garza’s case, there was testimony Garza was more than 18 years of age. There was no dispute about this as the trial progressed. Therefore, there was uncontested evidence before the jury on which it could have based a finding about Garza’s age at the time of the offense, if properly instructed to do so. This evidence distinguishes Garza’s case from Morningstar, Gonzales, and Bello. As in Reyna, we are convinced the Apprendi-type error that occurred in Garza’s case, i.e., when the trial court made the age determination rather than having the jury make the actual finding, was harmless.
Issue 5: Cruel and Unusual Punishment Argument
Garza argues his life sentence violates the constitutional prohibition against cruel and unusual punishment under the Eight Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. He argues this issue was preserved for appeal because he stated the sentence would “amount to cruel and unusual punishment” in his departure motion. Finally, Garza cites the applicable analysis in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and argues the test for disproportionality is satisfied because the punishment for this offense is greater than the punishment for more serious crimes.
The State argues this issue should not be reached because it is raised for the first time on appeal, citing State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2, 194 P.3d 1195 (2008). The State also argues the first prong for the Freeman analysis is factually driven and must be raised before the district court. In the alternative, the State argues the sentence is not unconstitutional.
In previous cases, this court declined to review this issue for the first time on appeal. State v. Easterling, 289 Kan. 470, 485-87, 213 P.3d 418 (2009); State v. Spotts, 288 Kan. 650, 652-54, 206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, 160-61, 199 P.3d 1265 (2009); Ortega-Cadelan, 287 Kan. at 161. These cases used the three-part test established in Freeman to determine whether a sentence is a cruel and unusual punishment. This test provides:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
Since these factors include both legal and factual inquiries and the district court did not make these required findings, this court declined to address the issue. Easterling, 289 Kan. at 487; Thomas, 288 Kan. at 161. Garza argues this barrier should not apply because he raised the issue in his departure motion. But this argument has limited merit under State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009), in which this court remanded the issue for the district court to make the necessary findings.
In Seward, the defendant mentioned this claim during plea negotiations, included it in his written downward departure motion, and reiterated the claim on the record at the sentencing hearing. This court held the issue was sufficiently raised before the district court. It then addressed whether the failure to move for additional findings under Supreme Court Rule 165 barred the claim. See Rule 165 (2009 Kan. Ct. R. Annot. 239). The court concluded it was not barred. This court remanded the issue to the district court to malee the required factual and legal determinations. 289 Kan. at 720-21. But the Seward court cautioned:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessary.” 289 Kan. at 721.
Garza’s claim is distinguishable from Seward because he failed to sufficiently raise the issue before the district court. In his departure motion, Garza stated a life sentence would constitute a cruel and unusual punishment. But he did not cite any authority, address the three-prong Freeman test, or argue this point during the departure hearing. In contrast to the defendant in Seward, there is no evidence of an effort to preserve this issue for appeal. Issues raised in passing that are not supported by argument or cited authority are deemed waived. Morningstar, 289 Kan. 488, Syl. ¶ 4.
Issue 6: Arbitrary and Capricious Argument
Garza next argues that K.S.A. 21-4643(d), the departure statute contained in Jessica’s Law, violates his due process rights under the Fourteenth Amendment to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights because it allows for arbitrary and discriminatory decision making.
Principally, Garza argues the departure statute is unconstitutional because it allows arbitrary decision making. The State treats this as a challenge to the district court’s determination that substantial and compelling reasons did not exist to justify departure. This court recently addressed a defendant’s due process rights at sentencing, and a part of our analysis determined that the sentencing court’s discretion, by itself, does not violate due process if the discretion is exercised within the requirements of procedural due process. Easterling, 289 Kan. at 482.
In Easterling, the defendant argued his due process rights were violated because the sentencing judge based his sentence, in part, on information contained in an arrest report that the defendant could not dispute and the State did not prove. This court recognized a defendant is entitled to due process at sentencing. 289 Kan. at 476. It also recognized a sentencing court may consider any circumstance providing a more complete and accurate picture of the defendant’s background, history, or behavior, and that the use of such information does not by itself violate a defendant’s due process rights. 289 Kan. at 481. But this court added that due process required a court to assure itself the information was reliable, accurate, and trustworthy, and the defendant must have an opportunity to rebut the evidence. 289 Kan. at 482.
Garza does not argue the judge violated his due process rights while using his discretion. Instead, he argues the discretion itself violates due process. Under the analysis in Easterling, this argument lacks merit.
Issue 7: Conviction of the Alternative Charge
Finally, Garza argues the district court erred by entering convictions for both aggravated indecent liberties with a child and rape of a child under 14 years of age because the information charged these counts in the alternative. Garza contends he is prejudiced by this error because the aggravated indecent liberties conviction appears on his criminal record. The State argues the conviction does not have to be reversed and vacated because these charges are not multiplicitous.
In State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992), this court held that “[a] defendant charged with more than one offense in a multiple-count complaint may be convicted of more than one offense. In contrast where, as here, the defendant has been charged in the alternative, he may be convicted of only one offense.” See State v. Blanchette, 35 Kan. App. 2d 686, 704, 134 P.3d 19, rev. denied 282 Kan. 792 (2006), cert. denied 549 U.S. 1229 (2007). The State attempts to distinguish Dixon by arguing it only applies when the charges are multiplicitous. But Dixon goes on to find that the jury does not need to deliberate on the lesser alternative charge if the defendant is convicted of the greater offense and the charges are multiplicitous. 252 Kan. at 49. Rather than supporting the State’s argument, this cuts against it because it reiterates that a defendant can only be convicted of one of the alternative crimes when charged in the alternative.
Dixon clearly holds that a defendant cannot be convicted of both offenses when the crimes are charged in the alternative. The district court appeared to partially understand this since it did not sentence Garza for aggravated indecent liberties with a child. But the aggravated indecent liberties conviction must be reversed.
Affirmed in part and reversed in part. | [
-48,
-22,
-3,
-68,
29,
67,
58,
60,
19,
-13,
-27,
-13,
-87,
-54,
0,
121,
-37,
47,
85,
113,
-63,
-73,
23,
-31,
-10,
-5,
24,
-42,
-77,
79,
-18,
-108,
12,
112,
90,
-11,
38,
-54,
97,
84,
-118,
-125,
-119,
-8,
82,
-121,
40,
99,
22,
14,
53,
28,
-13,
8,
28,
-62,
-55,
42,
27,
-67,
88,
-72,
-1,
-99,
90,
16,
-95,
-124,
-104,
38,
64,
36,
-104,
49,
0,
-20,
-78,
38,
6,
-10,
111,
-101,
-24,
96,
98,
33,
61,
-25,
-67,
-119,
-113,
-98,
31,
-89,
-104,
88,
107,
36,
-105,
-11,
110,
60,
15,
-8,
-26,
45,
63,
108,
-114,
-118,
-108,
-79,
-115,
33,
-58,
-8,
-13,
5,
49,
113,
-49,
-18,
92,
-43,
56,
-105,
-82,
-112
] |
The opinion of the court was delivered by
Nuss, J.:
This civil interlocutory appeal concerns the possible application of the collateral source rule to medical bill write-offs.
Facts and Holding
The essential facts are straightforward. On July 23,2005, plaintiff Karen Martinez slipped and fell while shopping at defendant’s business in Lyons, Kansas. She underwent back surgery at Wesley Medical Center and was ultimately billed $70,496.15. The hospital accepted $5,310 in satisfaction of the bill: $4,689 from plaintiff s private health insurance company, Coventry Health Systems (Coventry), and $621 from plaintiff as her deductible and co-pay. Pursuant to its contract with Coventry, the hospital wrote off the balance of $65,186.15.
In plaintiff s suit for recovery of damages, defendant filed a motion in limine asking the district court to prohibit plaintiff from claiming the full $70,496.15 as damages. The defendant apparently erred in its recitation of the specific amounts paid by each source to satisfy the bill, as well as the total amount paid to the hospital. Those errors apparently were repeated by plaintiff and the district court and by the parties in their briefs to this court. The facts and resultant parties’ arguments in this opinion have been modified to conform with the amounts stated in Coventry’s Explanation of Benefits, which was attached to defendant’s motion.
The court granted defendant’s motion, limiting plaintiff s recovery to those amounts actually paid by Coventry and plaintiff ($5,310) and preventing her from submitting evidence of medical expenses in excess of that amount. The court made the findings required by K.S.A. 60-2102(c) for an interlocutory appeal, and the Court of Appeals granted plaintiff s application. We transferred the case on our own motion pursuant to K.S.A. 20-3018(c).
The issue on appeal is whether in a case involving private health insurance write-offs, the collateral source rule applies to bar evidence of (1) the amount originally billed for medical treatment or (2) the reduced amount accepted by the medical provider in full satisfaction of the amount billed, regardless of the source of payment. We hold that the rule does not bar either type of evidence; both are relevant to prove the reasonable value of the medical treatment, which is a question for the finder of fact. Accordingly, we reverse and remand to the district court for further proceedings.
Analysis
Collateral source rule and the parties’ arguments
Our analysis starts with this court’s past description of the collateral source rale as follows:
“ ‘At common law, the collateral source rule prevented the jury from hearing evidence of payments made to an injured person by a source independent of the tortfeasor as a result of the occurrence upon which the personal injury action is based. The court has stated the rule as follows: “Under the ‘collateral source rule,’ benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.’ ” (Emphasis added.) Rose v. Via Christi Health System, Inc., 279 Kan. 523, 529, 113 P.3d 241 (2005) (Rose II) (quoting Farley v. Engelken, 241 Kan. 663, Syl. ¶ 1, 740 P.2d 1058 [1987]; Thompson v. KFB Ins. Co., 252 Kan. 1010, 1014, 850 P.2d 773 [1993]).
After a lengthy recitation of the Kansas appellate court decisions on the collateral source rale, plaintiff contends they create the following standard: “[W]hen an injured person has negotiated for, paid for or contributed in kind for a benefit that reduces his obligation to pay for injuries caused by a tortfeasor, that benefit should not be used to reward the tortfeasor or anyone responsible for his debt.” Consequently, she argues that the district court failed to apply the collateral source rale and, as a result, $65,186.15 of the original hospital bill, $70,496.15, would be incorrectly withheld from the jury’s consideration of her damages.
In holding that the collateral source rale is inapplicable to the $65,186.15 write-off, the district court explained:
“The court finds the Collateral Source Rule is inapplicable in this case as that is set forth in Bates v. Hogg, 22 Kan. App. 2d 705 (1996). The court finds this is a pretrial declaration of law that the plaintiff s recovery should be limited to the amount actually paid by the private insurance company. The court finds the proper measure of damages for medical expenses under these facts and circumstances is the actual ainount paid by the plaintiffs own private insurance company ... .To allow for the write-off amount is a misleading piece of evidence that did not actually occur as damage to the plaintiff. The evidence is the plaintiff cannot and will not be held responsible for the write-off, pursuant to the contract between the hospital and her own private insurance company. Therefore, only her actual medical damage is [$5,310].... To require the defendant to pay for some amount that was not paid would be giving the plaintiff the benefit of receiving more than their actual damages that is actually needed to reimburse the plaintiff to be made whole.” (Emphasis added.)
As the holding indicates, the court initially ruled that only the amount paid by plaintiffs insurance carrier ($4,689) could be recovered. But it later clarified that her actual medical damages, i.e., the amount recoverable, was $5,310, which included plaintiff s own payments of $621.
Defendant responds to plaintiffs position with three main points. First, defendant argues that the doctrine of restoration is fair and “[Requiring defendants to pay more than the amount necessary to satisfy the financial obligation... violates... fundamental fairness.” Second, it points out that under its theory, plaintiff would not be made “less than whole.” Finally, elaborating upon the district court’s decision, defendant argues that plaintiff is only entitled to recover the “reasonable value” of her medical care and expenses. Defendant contends that the reasonable value is necessarily the “agreed upon” value, i.e., the $5,310 offered by plaintiff and her carrier and accepted by the hospital in satisfaction of the bill. See, e.g., Bates v. Hogg, 22 Kan. App. 2d 705, Syl. ¶ 3, 921 P.3d 249 (1996) (person who suffers personal injuries because of negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries); PIK Civ. 4th 171.02.
Amicus Curiae — Kansas Association for Justice
Kansas Association for Justice (KsAJ) argues that write-offs and write-downs are collateral source benefits. Like plaintiff, it con tends that if a plaintiff has contributed to or bargained for something, then benefits should not be considered in the damage award. KsAJ posits that courts have “concluded nearly uniformly” that write-offs are collateral benefits negotiated for or purchased from an independent third party. It argues against a strict application of the restoration doctrine as encouraged by defendant.
KsAJ relies heavily upon the principles of the collateral source rule as provided in the Restatement (Second) of Torts (1977): (1) deterrence, (2) compensation, and (3) determining wrongful conduct. See, e.g., Section 920A(2) (“Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is hable.”) It contends that these principles were not intended to be oppositional but collaborative. Finally, KsAJ takes exception to the suggestion that plaintiffs receive a windfall under the collateral source rule; it suggests they instead obtain a “consequential benefit.”
Amicus Curiae Kansas Association of Defense Counsel
Kansas Association of Defense Counsel (KADC) fleshes out the defendant’s argument that simply restoring a plaintiff to his or her preinjury status is fair. KADC acknowledges Section 920A of the Restatement and how it effectively bars any argument that plaintiff s damages should be reduced by the $4,689 paid by Coventry to the hospital on her behalf. It argues, however, that the real issue before us is the value of plaintiff s medical expenses. It cites comment h of Restatement (Second) of Torts § 911 in support of its position that the appropriate compensation for injured plaintiff is the amount actually paid on the bill: here, $5,310. That comment states:
“When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.”
KADC next argues that plaintiff s benefit of the bargain concept does not apply to write-offs because the plaintiff plays no role in the bargaining process. It contends that a consumer who contracts for health insurance seeks only to have the insurance carrier bear the brunt of the consumer s medical expenses, whatever they turn out to be. According to KADC, an insurance carrier s ability to negotiate with medical providers to reduce the amount the carrier is required to pay, in order to satisfy its obligation to the consumer, is a benefit to the carrier — not the consumer.
KADC also points out that the basic principle of damages is to malee the plaintiff whole, not to grant a windfall. It observes that the collateral source rule itself operates as an exception to that basic principle, since it allows an injured party to recover damages which the party itself did not pay. According to KADC, however, allowing the plaintiff to recover not only the expenses paid by other sources but also expenses not paid by any source, amounts to a “super-windfall” for which there is no public policy justification.
KADC further takes exception to the suggestion that limiting the tortfeasor a windfall. It contends that the tortfeasor is still responsible for the entire amount of the plaintiff s medical expenses paid — whether or not these expenses were actually paid by the plaintiff, e.g., through private insurance. KADC argues that this result is fair because the amount originally billed by the medical provider is an inflated rate, not the reasonable value of services.
Finally, KADC argues that if the “sticker price” — the original amount billed — is admitted into evidence, then the amount actually paid to satisfy that bill should also be admitted. It contends that only then would the jury be able to determine the reasonable value of the services provided.
Standard of Review
This court generally reviews the granting of a motion in limine for abuse of discretion. See State v. Morton, 283 Kan. 464, 473, 153 P.3d 532 (2007). However, “ ‘[t]he abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Griffin v. Suzuki Motor Corp., 280 Kan. 447, 452, 124 P.3d 57 (2005) (citing Koon v. United States, 518 U.S. 81, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]). Here, the district court made “a pretrial declaration of law that the plaintiff s recovery should be limited to the amount actually paid by the private insurance company.” Moreover, this issue arrives via interlocutory appeal because the district court found there was a controlling legal issue requiring decision by the appellate courts. Consequently, this court is asked to determine whether the district court’s ruling was guided by erroneous legal conclusions and a de novo standard applies. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).
To better understand how the collateral source rule should be applied, if at all, under the circumstances of this case, we need to review the case law on the interplay of the rule with write-offs in Kansas.
Bates v. Hogg
Kansas appellate courts first considered the applicability of the collateral source rule to write-offs in Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996). Hogg’s pickup struck Bates’ vehicle and injured Bates. Hogg filed a motion in limine to limit Bates’ evidence of economic damages to the amount actually paid by Medicaid to medical care providers on her behalf. The district court granted the motion and prohibited Bates from presenting evidence of the market value or list price of her medical treatment. 22 Kan. App. 2d at 703.
The question presented in Bates was the same one presented in the instant case except that the write-off was pursuant to a Medicaid contract rather than a private insurance agreement. The Court of Appeals panel first pointed out that the “ ‘purpose of awarding damages is to make a party whole by restoring that party to the position he [or she] was in prior to the injury.’ ” 22 Kan. App. 2d at 704 (quoting Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352, 789 P.2d 541 [1990], overruled in part on other grounds 248 Kan. 824, 844, 811 P.2d 1176 [1991]). It then explained the reasonable value of the medical cost of restoration:
“The fundamental principle of the law of damages is that a person who suffers personal injuries because of the negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries, as well as the cost of those reasonably certain to be incurred in the future.” (Emphasis added.) 22 Kan. App. 2d at 704 (citing 22 Am. Jur. 2d, Damages § 197, p. 169).
The Bates panel concluded that the collateral source rule simply was not applicable to its facts. It reasoned that because medical providers, by agreement and contract, may not charge Medicaid patients for the difference between their “normal” charges and the amount actually paid by Medicaid, then “the amount allowed by Medicaid becomes the amount due and is the ‘customary charge’ under the circumstances.” Bates, 22 Kan. App. 2d at 705. The panel further agreed with the taxpayer-based public policy rationale of a North Carolina federal court:
“ ‘It would be unconscionable to permit the taxpayers to bear the expense of providing free medical care to a person and then allow that person to recover damages for medical services from a tort-feasor and pocket die windfall.’ ” 22 Kan. App. 2d at 706 (quoting Gordon v. Forsythe County Hospital Authority, Inc., 409 F. Supp. 708, 719 (M.D.N.C. 1976).
In effect, the Bates panel endorsed limited application of the collateral source rule. Plaintiff was allowed to seek recovery of damages for the amount of medical expenses that was actually paid by a nonwrongdoer, i.e., from a source “collateral” to the wrongdoer. Plaintiff was not allowed, however, to seek recovery of damages for the amount written off because it was paid by no one.
Judge, now Chief Judge, Rulon dissented, opining that a plaintiff should be allowed to recover the reasonable value of medical services rendered to treat an injury regardless of what amount was actually paid. 22 Kan. App. 2d at 709-10.
Rose I
This court first examined the interplay between write-offs and the collateral source rule in Rose v. Via Christi Health System, Inc., 276 Kan. 539, 78 P.3d 798 (2003) (Rose I). In Rose I, the executor of Rose’s estate brought a negligence action against Via Christi after Rose died as a result of injuries sustained from falling out of his hospital bed. After a judgment for the executor, the hospital moved to offset the judgment by the amount of medical expenses it wrote off for Rose pursuant to its contract with Medicare.
The Rose I court concluded that the federal Medicare statute, 42 U.S.C. § 1395cc(a)(1)(A)(i) (2000), was in direct conflict with the district court’s decision in granting Via Christi’s motion to offset the written-off medical expenses. It further concluded that the Medicare statute preempted the district court’s ruling. 276 Kan. at 543-44.
The court then considered the hospital’s cross-appeal, in which it argued that the district court should have limited the evidence of plaintiff s medical expenses to those amounts actually paid and not include the amounts it wrote off. 276 Kan. at 544. The court focused on the rationale in Judge Rulon’s dissent in Bates which stated:
“The purpose for the collateral source rule is to prevent the tortfeasor from escaping the full liability resulting from his or her actions by requiring the tort-feasor to compensate the injured party for all of the harm he or she causes, not just the injured party’s net loss.).” Rose I, 276 Kan. at 544 (citing Bates v. Hogg, 22 Kan. App. 2d 702, 709, 921 P.2d 249, rev. denied 260 Kan. 991 [1996] [dissenting opinion citing 2 Minzer, Nates, Kimball, Axelrod, and Goldstein, Damages in Tort Actions § 9.60, p. 9-88 (1991); Restatement (Second) Torts § 920A, comment b (1977)]).
The Rose I court then ruled that Bates’ holding was limited to cases involving Medicaid. 276 Kan. at 546. The court distinguished Medicare and Medicaid cases on the basis of the recipient’s contribution for Medicare coverage, finding Medicare to be akin to private insurance. 276 Kan. at 551. It found persuasive those courts applying the collateral source rule to amounts written off due to private insurance. 276 Kan. at 551; see, e.g., Koffman v. Leichtfuss, 246 Wis. 2d 31, 630 N.W.2d 201 (2001). It additionally relied upon the court decisions from the three jurisdictions that had addressed the issue and had unanimously concluded that the collateral source rule also applies to Medicare write-offs. Rose I, 276 Kan. at 546-47 (citing Candler Hosp. v. Dent, 228 Ga. App. 421, 491 S.E.2d 868 [1997]; Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135, 1140 [Miss. 2002]; Brown v. Van Noy, 879 S.W.2d 667 [Mo. App. 1994]). Simply put, an injured plaintiff could seek recovery as damages for amounts written off by health care providers, i.e., amounts not paid by Medicare on plaintiff s behalf.
The Rose I court looked to other jurisdictions because it found a Kansas case cited by the hospital to be inapposite. In Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997), a jury awarded plaintiff damages for his personal injuries after his girlfriend cut his throat while he was handcuffed and sitting on a curb in police custody. The Rose I court rejected the hospital’s argument that Jackson stood for the proposition that a plaintiffs recovery should not include write-offs but should be limited to the amount actually paid:
“Jackson, however, does not support this contention. In Jackson, the defendant sought to have die damage award for medical expenses reduced to the amount that had actually been paid by the plaintiff and a charity on Iris behalf. Finding no evidence to support the defendant’s request for remittitur, the Jackson court refused to reduce the plaintiff s damage award. 263 Kan. at 151-52, 947 P.2d 31. However, the Jackson court did not address the application of the collateral source rule, so it is inapposite to the issue in this case.” 276 Kan. at 546.
The Rose I court appeared to acknowledge that its ruling would result in a windfall for plaintiffs. It held:
“Public policy in Kansas supports the theory that any windfall from the injured party’s collateral sources should benefit the injured party rather than the tortfea-sor, who should bear the full liability of his or her tortious actions without regard to the injured parties’ method of financing his or her medical treatment.” 276 Kan. at 551.
In short, given the court’s reliance upon case law holding that write-offs pursuant to private insurance and write-offs pursuant to Medicare were all covered by the collateral source rule, to date arguably only the Medicaid write-offs from Bates v. Hogg were excluded from possible recovery by injured plaintiffs.
Justice Luckert wrote for the dissent, arguing that applying the collateral source rule to “this portion of the judgment is contrary to the basic precept of the collateral source rule which is that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.” 276 Kan. at 552. She pointed out that the hospital was both the “wrongdoer” and the entity writing off charges, i.e., not a source wholly independent of the wrongdoer. 276 Kan. at 552.
Fischer & Liberty
This court granted a motion for rehearing in Rose I. Before release of our modified opinion in June 2005, earlier that year one panel of the Court of Appeals released two unpublished opinions dealing with the possible applicability of the collateral source rule to write-offs. The decisions essentially excluded recovery for write-offs in the contexts of both Medicare (contrary to Rose I) and private insurance.
First, in Fischer v. Farmers Ins. Co., No. 90,246, unpublished opinion filed February 18, 2005, the plaintiff was injured when her automobile was struck by a pickup. She settled with the defendant’s insurance company and sought recovery under her own policy s underinsured motorist coverage. Her insurer filed a motion in lim-ine to exclude evidence of that portion of Fischer’s medical expenses that had been written off by the medical provider pursuant to an agreement with Fischer’s own group health insurance carrier.
The trial court relied upon Bates to exclude the amount of the write-off from plaintiffs damages. The Court of Appeals panel agreed that the Bates majority holding “was not principally driven by the fact that the write-off was mandated by a Medicaid contract.” Fischer, slip op. at 4. It emphasized the doctrine of restoration, explaining that when the plaintiff is awarded damages equal to the amount actually paid to his or her health care provider pursuant to an agreement, the plaintiff is then restored to his or her exact economic preinjury status. While the plaintiff would not be able to pocket the write-off amount, neither would he or she owe anything for medical services. Fischer, slip op. at 2. The panel explained that this solution results in restoration and equal treatment for all plaintiffs:
“The principle of restoration should be applicable to all plaintiffs, regardless of whether they be uninsured, covered by Medicaid, covered by Medicare, covered by an employer’s group health policy, or covered by an individually purchased private insurance contract.... In short, applying Bates to all plaintiffs effects their restoration to pre-accident status without arbitrarily overcompensating some injured persons.” Fischer, slip op. at 5.
The Fischer panel inteipreted the Bates holding to mean that while the amount a plaintiff s health insurer actually pays to the health care provider is a benefit from a collateral source, the amount the provider writes off is not. Accordingly, like the Bates court, it held that the collateral source rule was “ ‘not applicable under these circumstances/ ” Fischer, slip op. at 8.
The Fischer panel also explained that the idea that a plaintiff should receive a windfall so that the tortfeasor can be held fully hable is fiction:
“The sentiment that public policy dictates giving a plaintiff a windfall in order to hold the tortfeasor fully hable for his or her tortious conduct is, in practice, an illusion. In most cases, a tortfeasor pays nothing personally; the plaintiff s judgment is paid by a liability insurance carrier. If the wrongdoer’s bodily injury liability insurance limits are inadequate to cover the plaintiff s injuries, it is common for the tortfeasor to confess judgment in return for a covenant not to execute. On other occasions, a tortfeasor discharges an excess judgment in bankruptcy.” Fischer, slip op. at 12.
The panel not only concluded that the collateral source rule was inapplicable to write-offs but also that the amount the provider agreed to satisfy its bill conclusively established the reasonable value of the services:
“In summary, we hold that the amount which a health care provider has, in advance, agreed to accept in full satisfaction for services rendered to a plaintiff is the measure of the reasonable value of medical care and expenses for the treatment of the plaintiffs injuries. Previously established nonrecourse discounts by health care providers are not a collateral source benefit within the ambit of tire collateral source rule.” (Emphasis added.) Fischer, slip op. at 13.
It then logically followed that “[t]he plaintiff cannot introduce evidence of the amount of the nonrecourse discounts as part of the plaintiff s economic damages.” Fischer, slip op. at 13.
In effect, Fischer extended the Bates holding and rationale— refusing to apply the collateral source rule to Medicaid write-offs by medical care providers — to private insurance write-offs by providers. And as in Bates, the rule still had some limited application: plaintiff could seek recovery of damages for the amount of medical expenses that was actually paid by a nonwrongdoer, i.e., plaintiff s carrier. Moreover, Fischer more clearly articulated the rule inherent in Bates’ result: the paid amount is “the measure of the rea sonable value of medical care and expenses for the treatment of the plaintiffs injuries.”
Two months later, the same panel released Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005, rev. denied 280 Kan. 983 (2005). There, the plaintiff fell and sustained injuries in defendant’s business. Plaintiff challenged the district court’s order in limine, based upon its interpretation of Bates, which excluded evidence of the portion of her medical expenses, which the health care providers wrote off pursuant to their contracts with Medicare. The Liberty panel then extended the Bates holding and rationale — refusing to apply the collateral source rule to Medicaid write-offs by medical care providers — to Medicare write-offs by providers. This extension was contrary to our holding in Rose I, which was awaiting rehearing.
The Liberty panel explained that, for several reasons, applying the collateral source rule to write-offs in Medicare scenarios made little sense:
“The application of that rule to mandatory Medicare discounts requires a great deal of creativity. First, one must perceive that the nonconsensual, involuntary deductions from a person’s wages to fund the federally mandated Medicare program are akin to the premiums paid by the fiscally prudent and relatively affluent purchaser of private insurance. More importantly, however, one must fictionally characterize the mandatory contractual discount for Medicare patients as a ‘payment’ of medical expenses. The write-off is a volume discount allowed by medical care providers who want to tap into the pool of Medicare patients. No one is paid the discount, hut rather the discounted cost of services assists in keeping the amount that must be deducted from one’s paycheck at a manageable level.” (Emphasis added.) Slip op. at 13.
As the panel had done in Fischer, it also addressed the windfall argument in Liberty:
“Finally, the rationale of giving the injured person a windfall in order to avoid allowing the tortfeasor to reap a windfall simply ignores reality. One can perceive that in the vast majority of cases, the ‘windfall’ [to the plaintiff] is funded by a [defendant’s] liability insurance carrier, not the tortfeasor personally. The tortfea-sor is not taught a lesson via his or her pocketbook, but rather the rest of us must share the cost of the windfall through higher liability premiums.” (Emphasis added.) Slip op. at 13.
Where the panel in Fischer only suggested, in Liberty it now stated directly: “[T]he issue presented is not the applicability of the collateral source rule, but rather the reasonable value of medical care and expenses for the treatment of [the victim’s] injuries.’” (Emphasis added.) Liberty, slip op. at 13. Relying upon Bates, the Liberty panel held that the amount permitted to be charged to Medicare patients, i.e., the amount remaining after the write-off, is the “customary charge” for their medical treatment. Accordingly, the Liberty panel, as it did in Fischer, held that this reduced amount conclusively established the “reasonable value” of plaintiffs medical care and expenses. Liberty, slip op. at 13. As a result, the panel affirmed the trial court’s exclusion from evidence that portion of the plaintiff s medical expenses which the health care providers wrote off pursuant to their contracts with Medicare.
Rose II
At the same time the Court of Appeals panel was considering Fischer and Liberty, this court reheard arguments in Rose I—Rose v. Via Christi Health System, Inc., 279 Kan. 523, 113 P.3d 241 (2005) (Rose II). In our decision released 5 weeks after Liberty, this court limited its ruling to the specific facts of that case, i.e., where the tortfeasor was also the entity writing off its own charges for medical services. 279 Kan. at 529. As the court explained its holding:
“Thus, we conclude that under the facts of this case, specifically where the Medicare provider, Via Christi, is the defendant and also the health care provider of the services which form the basis of the economic damages claim, the trial court did not err in allowing a setoff or credit against the portion of the economic loss attributable to medical expenses in the amount of the Medicare write-off, an amount not paid by the plaintiff, Medicare, or any third party, and which reflected a cost incurred by the defendant. The trial court’s ruling is a correct application of Kansas law . . . .” (Emphasis added.) 279 Kan. at 533.
Because this court upheld the trial court’s decision to allow a setoff or credit, it did not reach the cross-appeal question. That question was “whether evidence of medical charges that are written off by a health care provider pursuant to a contract with Medicare is admissible at trial as evidence of economic damages.” 279 Kan. at 533-34. The court explained that it therefore did not reach the broader issue (answered by the Court of Appeals in Liberty 5 weeks earlier) of “whether Medicare, or a Medicare write-off, when the services are provided by a health care provider that is not a defendant, is a collateral source.” (Emphasis added.) Rose II, 279 Kan. at 534.
Adamson v. Bicknell
Most recently, the Court of Appeals considered the collateral source rule and write-offs in Adamson v. Bicknell, 41 Kan App. 2d 958, 207 P.3d 265 (2009), rev. granted March 31, 2010. There, the panel noted that pursuant to Bates, “evidence of medical expenses written off pursuant to Medicaid requirements must be excluded from evidence.” Adamson, 41 Kan. App. 2d at 970. Accordingly, the panel reversed the trial court and ¿lowed the introduction of these write-offs at retrial because they were “within the scope of the collateral source rule.” Adamson, 41 Kan. App. 2d at 973.
Recent Kansas case law, i.e., from Bates to date, is therefore synthesized chronologically as follows:
1. Medicaid write-offs are not covered by the collateral source rule per Bates;
2. Medicare write-offs are covered by the collateral source rule per Rose I;
3. Private insurance write-offs are not covered by the collateral source rule per Fischer;
4. Medicare write-offs are not covered by the collateral source rule per Liberty (contraiy to Bose I); and
5. Whether Medicare write-offs are covered by the collateral source rule is intentionally left unaddressed by the Supreme Court per Rose II.
Related case law from the Court of Appeals is further synthesized as follows:
Because write-offs by health care providers are not a collateral source benefit within the ambit of the collateral source rule, the issue regarding these write-offs instead becomes their possible relevance to the “reasonable value of medical care and expenses for the treatment of the victim’s injuries.” Liberty, slip op. at 13. And the amount which a health care provider has agreed to accept in full satisfaction for services rendered in treatment of the plaintiff s injuries conclusively establishes the reasonable measure of those medical care and expenses. Fischer, slip op at 13; Liberty, slip op. at 14. As a result, the plaintiff cannot introduce evidence of the amount of the nonrecourse discounts, i.e., write-offs, as part of the plaintiffs economic damages. Fischer, slip op. at 13.
Federal cases
The federal district courts in Kansas have uniformly held that the collateral source rule does not apply to write-offs by health care providers — whether via Medicaid as in Bates, via Medicare as in Liberty (contrary to Rose I), or via private insurance as in Fischer. Like Liberty and Fischer, the opinions are all unpublished.
In Strahley v. Mercy Health Center of Manhattan, 2000 WL 1745291 (D. Kan. 2000) (unpublished opinion), Judge Vratil adopted the Medicaid-based rationale in Bates and, like Fischer, extended it to private insurance write-offs by health care providers. She held: “Although Bates addressed only a Medicaid write-off, the same reasoning applies to amounts written off in conjunction with private health care insurance. No one, including plaintiffs, is hable for the amount of the write-offs. Therefore, they do not represent actual losses.” Strahley, 2000 WL 1745291, at “2 (citing McAmis v. Wallace, 980 F. Supp. 181, 184 [W.D. Va. 1997]).
Judge Vratil quoted with approval Mitchell v. Hayes, 72 F. Supp. 2d 635, 637 (W.D. Va. 1999):
“ ‘Discounting is a reality of modem medical economics and it does no violence to the collateral source doctrine to bring the tort compensation system the same extended savings. By allowing the plaintiff to show the discounted medical expenses as evidence of his damages, even though he paid no part of them, but refusing any evidence of the write-offs that no one incurred, there is a proper balance of the competing interests at issue.’ ” Strahley, 2000 WL 1745291, at *2.
One year later, in Davis v. Management & Training Corp. Centers, 2001 WL 709380 (D. Kan. 2002) (unpublished opinion), Judge Rogers faced a factual situation similar to Bates. Medicaid paid part of plaintiffs medical expenses, and the remainder was written off per an agreement between Medicaid and the health care providers. Relying upon Bates and Judge Vratil’s Strahley decision, the defendant argued that the plaintiff s claim was limited to the portion actually paid by Medicaid. After acknowledging the collateral source rule, Judge Rogers decided to follow these authorities, holding that “[sjince plaintiff is not liable for the amount of write-offs, we do not find that the plaintiff has suffered actual losses. Accordingly, the court shall preclude any evidence of any amount of the plaintiffs medical bills that represent write-offs.” Davis, 2001 WL 709380, at *3.
Finally, 1 year after Davis, in Wildermuth v. Staton, 2002 WL 922137 (D. Kan. 2002) (unpublished opinion), Magistrate Judge Waxse reviewed defendant’s argument that the collateral source rule did not apply to tire amounts written off by health insurance carriers after payment by Medicare. He rejected the plaintiffs counterarguments for admission of the write-offs as evidence of damages because they were required by federal law:
“First, the write-offs were not a benefit that Plaintiff s were personally responsible for obtaining or that they individually bargained for. Rather, the write-offs are required by operation of federal law.” 2002 WL 922137, at "5.
He further rejected the plaintiff s arguments for admission of the write-offs as evidence of damages because the collateral source rule does not apply to write-offs of expenses that are never paid:
“Second, the Court sees no reason to distinguish between the type of benefits received. What is at issue is the write-off and not the Medicare payments itself. It does not matter whether the benefits received are from the Medicaid or Medicare programthe collateral source rule, by its express terms, simply does not apply to write-offs of expenses that are never paid. The collateral source rule only excludes ‘evidence of benefits paid by a collateral source.’ Wendtling v. Medical Anesthesia Servs., 237 Kan. 505, 515, 701 P.2d 939 (1985) (emphasis added). Because a write-off is never paid, it cannot possibly constitute payment of any benefit from a collateral source. [Citation omitted.]” Wildermuth, 2002 WL 922137, at “5.
Judge Waxse also addressed the windfall arguments:
“Moreover, as the Kansas Court of Appeals noted in Bates, allowing a plaintiff to recover the amount of charges written off would result in a windfall to the plaintiff. Permitting Plaintiffs in this case to enter into evidence medical bills for which neither Plaintiffs nor collateral source had any responsibility to pay and allowing Plaintiffs to recover that amount does not further the purpose of the collateral source rule. The rule is intended to prevent a defendant tortfeasor from escaping from full liability for the consequences of his or her wrongdoing and to prevent a windfall to the tortfeasor, who would otherwise profit from the benefits provided by a third party to the injured party. It is not intended to provide a tmndfall to plaintiffs. As the Kansas Supreme Court has noted, ‘the basic principle of damages is to make a party whole by putting it back in the same position, not to grant a windfall.’ [Citation omitted.]” (Emphasis added.) Wildermuth, 2002 WL 922137, at *5.
Judge Waxse expressly rejected plaintiff s additional argument that Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), was inconsistent with the policies supporting the collateral source rule. He found that the Bates rule was entirely consistent with the theories of fair compensation reflected in Kansas Supreme Court cases. First, “ ‘the purpose of awarding damages is to make a party whole by restoring that party to the position he or she was in prior to the injury’ ” and second, “the ‘basic principle of damages’ [is] . . . that the injured party should not be granted a windfall.” He concluded that “[ajpplying Bates to this case will further these goals.” Wildermuth, 2002 WL 922137, at *7.
The parties’ arguments required Judge Waxse to go further than his federal colleagues, Judges Vratil and Rogers, and to review the reasonable value of the medical care and expenses for plaintiff s treatment. More particularly, defendant alleged that plaintiff had not met the threshold requirement of a reasonable value of $2,000 in economic damages, e.g., medical expenses, which would allow him or her to seek recovery of noneconomic damages in a motor vehicle tort action under K.S.A. 40-3117. Based upon Bates’ holding on Medicaid, he ruled that the reduced amount payable under the care provider’s agreement with Medicare conclusively established the “reasonable value” of the medical services under the statute:
“Finally, the [Bates] appeals court recognized that, pursuant to the provider’s agreement with Medicaid, the provider was required to accept a reduced amount for his or her services and could not charge the Medicaid patient for the full amount. That amount became the ‘customary’ and, therefore, ‘reasonable,’ charge. Id. at 705. Implicit in the appeals court’s decision is the holding that the reduced amount pay able under the provider’s agreement with Medicaid should be deemed the reasonable value’ of the services under K.S.A. 40-3117.
“The Court finds that Bates is consistent with the ‘reasonable value’ standard set forth in K.S.A. 40-3117. The Court also finds that the Kansas Court of Appeals’ reasoning regarding the ‘reasonable value’ standard applies equally to Medicare write-offs. As is the case with Medicaid, the reduced amount a provider is obligated to accept pursuant to his/her agreement with Medicare should be deemed the ‘reasonable value’ of the services.” (Emphasis added.) Wildermuth, 2002 WL 922137, at “7.
At least in the context of K.S.A. 40-3117, Judge Waxse arguably foreshadowed the Liberty panel’s clarification 3 years later that “the issue presented is not the applicability of the collateral source rule, but the ‘reasonable value of medical care and expenses for the treatment of [the victim’s] injuries.’ ” Liberty, slip op. at 13.
In short, a synthesis of this case law from the federal district courts of Kansas is similar to the synthesis of recent Kansas Court of Appeals decisions as described above. Specifically, previously established write-offs by health care providers through Medicaid, Medicare, or private insurance are not covered by the collateral source rule. Strahley, 2000 WL 1745291; Davis, 2001 WL 709380; Wildermuth, 2002 WL 922137. Moreover, the amount which a health care provider has agreed to accept in full satisfaction for services rendered in treatment of the plaintiff s injuries conclusively establishes the reasonable measure of value of medical care and expenses under K.S.A. 40-3117. Wildermuth, 2002 WL 922137. Finally, the plaintiff cannot introduce evidence of the amount of the write-offs as part of his or her economic damages. See, e.g., Strahley, 2000 WL 1745291; Davis, 2001 WL 709380.
Now that we have examined the direction in which Kansas case law appears to lean, we look at other jurisdictions that have considered the question of the interplay, if any, between the collateral source rule and write-offs.
Other jurisdictions
The Louisiana Supreme Court has explained that other courts have applied three different approaches in determining whether to apply the collateral source rule to Medicaid write-offs. Bozeman v. State, 879 So. 2d 692, 701 (La. 2004). While Bozeman dealt only with Medicaid, the categories apply to all types of write-offs. These approaches are: (1) reasonable value of services; (2) actual amounts paid; and (3) benefit of the bargain.
1. Reasonable value of services
According to the Bozeman court, some jurisdictions apply a reasonable value of services approach and some of those allow plaintiffs to recover the entire amount of medical expenses originally billed, including any amounts later written off by the healthcare provider. See Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611, 618 (2001) (Mississippi); Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293 (2003) (South Carolina); Koffman v. Leichtfuss, 246 Wis. 2d 31, 630 N.W.2d 201 (2001) (Wisconsin). The reasonable value of services approach is largely based on the idea that the collateral source rule applies even when the source of the payment is a public relief provided by law. 879 So. 2d at 702. The Bozeman court pointed out that comment b to the Restatement (Second) of Torts § 920A (the general collateral source rule) supports this position:
“ ‘If the plaintiff was himself responsible for die benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself. If the benefit was a gift to the plaintiff from a third party or established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him.’ ” (Emphasis added.) 879 So. 2d at 701-02.
The Illinois Supreme Court recently addressed these three categories and adopted the reasonable value approach in Wills v. Foster, 229 Ill. 2d 393, 892 N.E.2d 1018 (2008). The Wills court explained that the difficulty with this approach is how to determine the reasonable value of services. 229 Ill. 2d at 407-11. It opined that a “minority of courts employing this approach hold that the reasonable value of medical services is the actual amount paid,” (229 Ill. 2d at 407-08), and that the “vast majority of courts using a reasonable-value approach allow the plaintiff to seek recovery of the amount originally billed by the healthcare provider.” 229 Ill. 2d at 410. The court held that this latter position is supported by the Restatement (Second) of Torts, specifically sections 924 and 920A. 229 Ill. 2d at 410.
The Wills court observed that Section 920A(2) states in relevant part that “[p]ayments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor s liability, although they cover all or a part of the harm for which the tortfeasor is liable.” Like the Bozeman court in Louisiana, the Wills court noted that under comment b “[t]he law does not differentiate between die nature of the benefits, so long as they did not come from the defendant or a person acting for him.” 229 Ill. 2d at 411. Section 924 in turn allows an injured plaintiff to recover reasonable medical expenses. Its comment f explains that this is a recovery for value even if there is no liability or expense to the injured person. 229 Ill. 2d at 409-10.
The Wills court gave four basic reasons for adopting the reasonable value approach. First, the court noted the policy justification for the coUateral source rule that the tortfeasor should not benefit from “the expenditures made by the injured party or taire advantage of contracts or other relations that may exist between the injured party and third persons. [Citation omitted.]” 229 Ill. 2d at 413. Second, Section 920A supports a reasonable value approach and does not distinguish between private insurance and government benefits or those who receive their treatment on a gratuitous basis. 229 Ill. 2d at 413. Third, the benefit of the bargain approach (as discussed below) discriminates against certain plaintiffs and prevents sick or disabled plaintiffs covered by Medicaid from recovering the full billed amount. 229 Ill. 2d at 413; see, e.g., Bates v. Hogg, 22 Kan. App. 2d 702. Consequently, this approach undermines the spirit of the collateral source rule because the measure of the defendant’s liability is then determined by the nature of the injured party’s relationship with a source collateral to the tortfeasor. 229 Ill. 2d at 413-14. Fourth, “[t]he vast majority of courts to consider the issue employ some sort of reasonable value approach.” 229 Ill. 2d at 414.
The Wills court acknowledged the obvious criticism of the reasonable value approach. Because it allows recoveiy of the entire amount of medical expenses billed, including health care provider write-offs, it can lead to a windfall for plaintiffs. But the court ruled that it is better for the benefit to go to the plaintiff rather than the tortfeasor. 229 Ill. 2d at 411, 413.
Some courts have taken a slightly different approach to determining the “reasonable value” of damages. In Robinson v. Bates, 112 Ohio St. 3d 17, 857 N.E.2d 1195 (2006), the Ohio Supreme Court reasoned that the collateral source rule does not apply to write-offs of medical expenses that are never paid. Accordingly, “the written-off amount of a medical bill differs from the receipt of compensation or services.” 112 Ohio St. 3d at 22. It noted our holding that “[t]he collateral-source rule excludes only ‘ “evidence of benefits paid by a collateral source.” ’ (Emphasis added.) Wentling v. Med. Anesthesia Servs., P.A., 237 Kan. 503, 515, 701 P.2d 939 (1985), quoting 3 Minzer, Nates, Kimball, Axelrod and Gold-stein, Damages in Tort Actions (1984) 17-5, Section 17.00.” 112 Ohio St. 3d at 22-23. Because no one pays the write-off, the Robinson court reasoned that the write-off cannot possibly constitute payment of any benefit from a collateral source. As a result, “[bjecause no one pays the negotiated reduction, admitting evidence of write-offs does not violate the purpose behind the collateral source rule. The tortfeasor does not obtain a credit because of payments made by a third party on behalf of the plaintiff.” 112 Ohio St. 3d at 23.
The Robinson court sought to eliminate potential disparate treatment of plaintiffs by simply emphasizing the reasonable value of the medical services received. It ruled that both the amount originally billed and the amount ultimately paid may be considered by the jury in making that determination:
“To avoid the creation of separate categories of plaintiffs based on individual insurance coverage, we decline to adopt a categorical rule. Because different insurance arrangements exist, the fairest approach is to make the defendant liable [only] for the reasonable value of plaintiffs medical treatment. Due to the realities of today’s insurance and reimbursement system, in any given case, that determination is not necessarily the amount of the original bill or the amount paid. Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.” (Emphasis added.) 112 Ohio St. 3d at 23.
The Robinson court acknowledged that the jury’s determination of the reasonable value could lie someplace in between the amount of the original bill and the amount accepted in satisfaction:
“The jury may decide that the reasonable value of medical care is the amount originally billed, the amount the medical provider accepted as payment, or some amount in between. Any difference between the original amount of a medical bill and the amount accepted as the bill’s full payment is not a ‘benefit’ under the collateral-source rule because it is not a payment, but both the original bill and the amount accepted are evidence relevant to the reasonable value of medical expenses.” 112 Ohio St. 3d at 23.
2. Actual amount paid
At least one jurisdiction only allows plaintiffs to recover the actual amount paid to the health care provider in full settlement of the bill. See Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003) (Idaho). This approach is based on the premise that the plaintiff did not incur the write-off amount and therefore should not receive the resulting windfall. See Bozeman, 879 So. 2d at 702. In Dyet, the Idaho Supreme Court held that “ ‘[although the write-off technically is not a payment from a collateral source within the meaning of [the collateral source statute], it is not an item of damages for which plaintiff may recover because plaintiff has incurred no liability therefore.’ [Citation omitted].” 139 Idaho at 529. The Illinois Supreme Court has explained that this approach focuses on “the objective of compensatory damages as making an injured party whole.” Wills, 229 Ill. 2d at 408.
3. Benefit of the bargain
The third approach, the benefit of the bargain, allows plaintiffs to recover the full value of their medical expenses, including the write-off amount, when the plaintiff has paid some consideration for the benefit of the write-off. Bozeman, 879 So. 2d at 703 (Louisiana); see Helfend v. Southern California Rapid Transit Dist., 84 Cal. Rptr. 173, 465 P.2d 61 (1970) (California); Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316 (2000) (Virginia). As the Virginia Supreme Court explained in Acuar. “The portions of medical ex penses that health care providers write off [do] constitute ‘compensation or indemnity received by a tort victim from a source collateral to the tortfeasor . . . .’ [Citation omitted.]” 260 Va. at 192.
Similarly, the California Supreme Court’s explanation of the policy judgment behind the rule was that the court was in favor of
“encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Courts consider insurance a form of investment, the benefits of which become payable without respect to any other possible source of funds. . . . Defendant should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.” Helfend, 2 Cal. 3d at 10.
The Illinois Supreme Court explained in Wills that “[u]nder this approach, courts allow plaintiffs who have private insurance to recover the full amount of their medical expenses because they have bargained for the benefits they received.” 229 Ill. 2d at 406. However, while these courts treat Medicare recipients the same as those with private insurance, they do not allow the same for Medicaid: they only allow the amount actually paid. 229 Ill. 2d at 406. As mentioned earlier, the Wills court pointed out that one “obvious criticism” of the benefit of the bargain approach as used by some courts is that it “undermines the collateral source rule by using the plaintiffs relationship with a third party to measure the tortfeasor’s liability.” 229 Ill. 2d at 407 (citing, inter alia, Bozeman, 879 So. 2d at 703-05).
Discussion
Plaintiff contends this court should apply a benefit of the bargain approach. In other words, we should allow plaintiffs to recover their full medical expenses, including the write-offs, when plaintiff has paid some consideration for the benefit of the write-off. Applying such an approach under Kansas law is problematic, however, for several basic reasons.
First, such an approach is contradicted by the very case law relied upon by plaintiff. In both Zak v. Riffel, 34 Kan. App. 2d 93, 115 P.3d 165 (2005), and Johnson v. Baker, 11 Kan. App. 2d 274, 719 P.2d 752 (1986), the Court of Appeals acknowledged that the collateral source rule also applies to gratuitous payments. For example, tibe Zak panel held that “the collateral source rule applies to payments received gratuitously as well as those received as a result of an obligation.” 34 Kan. App. 2d at 106 (citing Johnson v. Baker, 11 Kan. App. 2d 274, 719 P.2d 752 [1986]). More particularly, “ ‘[a] benefit secured by the injured party either through insurance contracts, advantageous employment arrangements, or gratuity from family or friends should not benefit the tortfeasor by reducing his or her liability for damages.’ ” (Emphasis added.) 34 Kan. App. 2d at 106 (quoting Rose v. Via Christi Health System, Inc., 276 Kan. 539, 544, 78 P.3d 798 [2003] [Rose I]); see Johnson, 11 Kan. App. 2d 274, Syl. ¶ 2.
The Rose I language cited by the Zak panel is from an opinion of this court which cited no authority for the proposition that the collateral source rule applies to gratuitous payments. We observe, however, that in Lewark v. Parkinson, 73 Kan. 553, 555-56, 85 P. 601 (1906), we indicated that an injured plaintiff may seek recovery for nursing services provided gratuitously by family members. To the extent that our past opinions, including Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985), suggested that die collateral source rule only precludes admission of payments made to the plaintiff, we clarify today that the rule also precludes admission of evidence of gratuitous services provided by a collateral source. Accordingly, the benefit of the bargain approach carries litde weight under Kansas law.
The second problem with plaintiff s proposed benefit of the bargain approach is its possible violation of the equal protection provisions of the state and federal constitutions by effectively creating categories of plaintiffs. See Wentling, 237 Kan. 503 (holding that legislature’s limitation on the collateral source rule was unconstitutional because it violated the equal protection provisions of the United States and Kansas Constitutions by discriminating between indigent and insured plaintiffs). By distinguishing among patients with Medicare, Medicaid, and private insurance, this court could potentially discriminate among plaintiffs based on their ability to obtain certain types of health care coverage. See Wills, 229 Ill. 2d at 407 (benefit of the bargain approach “undermines the collateral source rule by using the plaintiff s relationship with a third party to measure the tortfeasor’s liability”). If we were to follow Bates v. Hogg, 22 Kan. App. 2d 702, and to adopt plaintiffs proposal, a Medicaid patient in her position would only be allowed to recover $4,689 plus the $621 she paid herself while a Medicare or privately insured patient could potentially recover $70,496.15.
A third problem with plaintiff s proposed approach is that Medicare beneficiaries do not truly “bargain with” Medicare. And even though insureds concededly may bargain with their private insurance companies, they typically do not negotiate with their health care providers for the write-offs. As Judge Waxse pointed out in Wildermuth v. Staton, 2002 WL 922137 (D. Kan. 2002), Medicare write-offs are not a benefit for which plaintiffs are personally responsible for bargaining or otherwise obtaining. 2002 WL 922137, at *5. Additionally, as the Court of Appeals panel noted in Liberty, federally mandated wage deductions for Medicare can hardly be considered the equivalent of premiums voluntarily paid for private insurance. Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005.
Lastly, but most important, Kansas courts do not reflexively order Hable defendants to pay the full amount billed by the health care providers to injured plaintiffs. Kansas courts instead have typically based the value of damages on the reasonable expense of treatment. See, e.g., Shirley v. Smith, 261 Kan. 685, 693, 933 P.2d 651 (1997) (“The reasonable expense of treatment is a proper element of economic damages.”); Cansler v. Harrington, 231 Kan. 66, 69, 643 P.2d 110 (1982) (question of reasonableness is juiy question); Bates v. Hogg, 22 Kan. App. 2d 702, Syl. ¶ 3, 921 P.2d 249, rev. denied 260 Kan. 991 (1996) (person who suffers personal injuries because of the negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries); PIK Civ. 4th 171.02 (recoverable damages for personal injury include “reasonable expenses of necessary medical care”). Accordingly, tire defendant has a right to challenge the reasonableness of the plaintiff s medical expenses. Cansler v. Harrington, 231 Kan. at 69.
The “reasonable value” approach to recovery of medical expenses is expressly identified as the one required in the Kansas Automobile Injury Reparations Act in K.S.A. 40-3117. For plaintiffs in a tort action involving motor vehicles to be eligible to seek noneconomic damages, e.g., pain and suffering, they can be required to have an injury with medical treatment of “reasonable value” of $2,000 or more. But the statute goes further and expresses how reasonable value is to be determined. It provides that “the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value.” (Emphasis added.) K.S.A. 40-3117. Instead, “[e]vidence that the reasonable value thereof was an amount different from the amount actually charged shall be admissible.” 40-3117; see Wildermuth, 2002 WL 922137. Evidence demonstrating that the charged amount is not reasonable typically has been admitted through cross-examination of plaintiffs witnesses, by direct examination of defendant’s witnesses, or both.
Based upon our review of this and other Kansas state case law on the reasonable value of medical expenses and our review of Kansas law on write-offs and the collateral source rule — both from state court and federal courts — we reach several conclusions in the instant case.
First, we reject plaintiff s benefit of the bargain approach because of the shortcomings previously listed. Second, the reasonable value approach to medical expenses remains valid, including when the medical services are self-administered or gratuitously provided by family members. See, e.g., Shirley v. Smith, 261 Kan. at 693 (“The reasonable expense of treatment is a proper element of economic damages.”); Lewark v. Parkinson, 73 Kan. 553, 555-56, 85 P. 601 (1906); PIK Civ. 4th 171.02. Third, the charges “actually made” or billed by the health care provider for plaintiff s medical treatment expenses are not conclusive as to their reasonable value: other evidence shall be admissible. See, e.g., Cansler v. Harrington, 231 Kan. at 69 (defendant has right to challenge reasonableness of plaintiff s medical expenses); K.S.A. 40-3117. Toward that end, we note that according to KADC’s brief, studies performed earlier in this decade reveal that the average charge-to-cost ratio (i.e., “markup”) for approximately 4,000 hospitals across the country was 244.37%. Wesley Medical Center, the hospital where our plaintiff underwent her surgery and treatment, had a charge-to-cost ratio of almost 400% according to this study.
Fourth, and most important to resolving the issue in the instant case’s collateral source context, this other evidence relevant to determining the reasonable value of medical expenses may include write-offs or other acknowledgments that something less than the charged amount has satisfied, or will satisfy, the amount billed. Accordingly, neither the amount billed nor the amount actually accepted after a write-off conclusively establishes the “reasonable value” of medical services. We therefore expressly reject the Wild-ermuth court conclusion that the amount accepted in satisfaction “should be deemed the ‘reasonable value’ ” of the medical services. Wildermuth, 2002 WL 922137, at *7. We also reject similar expressions contained in Fischer v. Farmers Ins. Co., No. 90,246, unpublished opinion filed February 18,2005, and Liberty, e.g., that the paid amount is the measure of the reasonable value of medical care and treatment. In short, we embrace the rationale and holding of Robinson v. Bates, 112 Ohio St. 3d 17, from the Ohio Supreme Court: When medical treatment expenses are paid from a collateral source at a discounted rate, determining the reasonable value of the medical services becomes an issue for the finder of fact. Stated more completely, when a finder of fact is determining the reasonable value of medical services, the collateral source rule bars admission of evidence stating that the expenses were paid by a collateral source. However, the rule does not address, much less bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy, the amount billed.
The Robinson approach — although rejected since its December 2006 release by Wisconsin (Leitinger v. Dbart, Inc., 302 Wis. 2d 110, 736 N.W.2d 1 [July 2007]) and Illinois (Wills v. Foster, 229 Ill. 2d 393 [June 2008]) — -was embraced by the Indiana Supreme Court in Stanley v. Walker, 906 N.E.2d 852 (May 2009). There, plaintiff introduced into evidence his medical bills showing the amounts originally billed to him ($11,570). Defendant attempted to introduce the discounted amount actually paid and accepted as satisfaction of the bill ($6,820). The trial court excluded defend ant’s evidence, holding that insurance and “ ‘anything flowing from the insurance benefit purchased by the plaintiff ” would be prohibited by the collateral source statute. 906 N.E.2d at 854. The Indiana Supreme Court ultimately remanded with an order to reduce the damage award, holding that the statute did not bar admission of evidence of discounted amounts or write-offs for the purpose of determining the reasonable value of medical services. 906 N.E.2d at 858-59. Its journey to this conclusion is instructive.
The Stanley court elaborated upon the rationale established by the Ohio Supreme Court in Robinson. Although Indiana, unlike Kansas, has a collateral source statute, like Kansas law the Indiana statute retained
“the common law principle that collateral source payments should not reduce a damage award if they resulted from the victim’s own foresight — both insurance purchased by the victim and also government benefits — presumably because the victim has paid for those benefits through taxes.” Stanley, 906 N.E.2d at 855.
Also like in Kansas, an Indiana “injured plaintiff is entitled to recover damages for medical expenses that were both necessary and reasonable.” (Emphasis added.) Stanley, 906 N.E.2d at 855. As a result, the Stanley court, like this court in the instant case (and as suggested in Fischer and Liberty), was directly “confronted with the question of how to determine the reasonable value of medical services, when an injured plaintiff s medical treatment is paid from a collateral source at a discounted rate.” Stanley, 906 N.E.2d at 855.
The Stanley court noted that while the proper measure of medical expenses is their reasonable value, that particular determination was difficult due to complexities of health care pricing structures:
“The complexities of health care pricing structures make it difficult to determine whether the amount paid, the amount billed, or an amount in between represents the reasonable value of medical services. One authority reports that hospitals historically billed insured and uninsured patients similarly. Mark A. Hall & Carl E. Schneider, Patients as Consumers: Courts, Contracts and the New Medical Marketplace, 106 Mich. L. Rev. 643, 663 (2008). With the advent of managed care, some insurers began demanding deep discounts, and hospitals shifted costs to less influential patients. Id. This authority reports that insurers generally pay about forty cents per dollar of billed charges and that hospitals accept such amounts in full satisfaction of the billed charges. Id.” Stanley, 906 N.E.2d at 857.
The Stanley court observed the present tenuous relationship between medical charges and medical costs. Accordingly, it concluded that the reasonable value of medical services was not necessarily represented by either the amount originally billed or the amount actually paid:
“As more medical providers are paid under fixed payment arrangements, another authority reports, hospital charge structures have become less correlated to hospital operations and actual payments. The Lewin Group, A Study of Hospital Charge Setting Practices (2005). Currently the relationship between charges and costs is ‘tenuous at best. ’ Id. at 7. In fact, hospital executives reportedly admit that most charges have no relation to anything, and certainly not to cost. ’ Hall, Patients as Consumers at 665. Thus, based on the realities of health care finance, we are unconvinced that the reasonable value of medical services is necessarily represented by either the amount actually paid or the amount stated in the original medical bill.” (Emphasis added.) Stanley, 906 N.E.2d at 857.
After acknowledging that the focus was on the reasonable value of medical services, not the actual charge, the Stanley court held that the Robinson approach was also tire fairest. More specifically, the Robinson court avoided the problem of creating separate categories of plaintiffs based upon how their medical expenses were financed:
“The reasonable value of medical services is the measure used to determine damages to an injured party in a personal injury matter. This value is not exclusively based on tire actual amount paid or the amount originally billed, though these figures certainly may constitute evidence as to the reasonable value of medical services. A defendant is liable for the reasonable value of the services. We find this to be the fairest approach; to do otherwise would create separate categories of plaintiffs based on the method used to finance medical expenses. See Robinson, 857 N.E.2d at 1200 (discussing how its rule avoided the creation of separate categories of plaintiffs based on individual insurance coverage).” (Emphasis added.) Stanley, 906 N.E.2d at 858.
The Stanley court recognized several methods, including those used in Kansas, for determining the reasonable value of medical expenses:
“Given the current state of the health care pricing system where, to repeat, authorities suggest that a medical provider’s billed charges do not equate to cost, the juiy may well need the amount of the payments, amounts billed by medical service providers, and other relevant and admissible evidence to be able to determine the amount of reasonable medical expenses. To assist the jury in this regard, a defendant may cross-examine any witness called by the plaintiff to establish reasonableness. The defendant may also introduce its own witnesses to testify that the billed amounts do not represent the reasonable value of services.” (Emphasis added.) Stanley, 906 N.E.2d at 858.
See, e.g., K.S.A. 40-3117.
The Stanley court then approved the additional method permitted in Robinson for determining reasonable value, i.e., allowing evidence of discounted amounts, write-offs, or reimbursement rates:
“Additionally, the defendant may introduce the discounted amounts into evidence to rebut the reasonableness of charges introduced by the plaintiff. We recognize that the discount of a particular provider generally arises out of a contractual relationship with health insurers or government agencies and reflects a number of factors — not just the reasonable value of die medical services. However, ive believe that this evidence is of value in the fact-finding process leading to the determination of the reasonable value of medical services. ’’(Emphasis added.) 906 N.E.2d at 858.
The Stanley court concluded that “to the extent the discounted amounts may be introduced without referencing insurance, they may be used to determine the reasonable value of medical services.” (Emphasis added.) Stanley, 906 N.E.2d at 853; see also Scott v. Garfield, 454 Mass. 790, 807, 912 N.E.2d 1000 (2009) (Cordy and Botsford, JJ., concurring) (“While I do not challenge the principal tenet of the collateral source rule, that benefits or payment received on behalf of a plaintiff from an independent source should not diminish recoveiy from the tortfeasor, the plaintiff is only entitled to the reasonable value of his medical expenses, and the price that a medical provider is prepared to accept for the medical services rendered is highly relevant to that determination.”); cf. Liberty v. Westwood United Super, Inc., No. 89,143, unpublished opinion filed April 29, 2005, rev. denied 280 Kan. 983 (2005) (“[T]he issue presented is not the applicability of the collateral source rule, but rather the ‘reasonable value of medical care and expenses for the treatment of [the victim’s] injuries.’ ”).
Criticism of Robinson
Robinson has been criticized. As mentioned, since Robinsons December 2006 release its approach has been rejected by Wisconsin (Leitinger v. Dbart, Inc., 302 Wis. 2d 110 [July 2007]) and Illinois (Wills v. Foster, 229 Ill. 2d 393, 892 N.E.2d 1018 [June 2008]). Robinson s specific rationale that the evidence of write-offs and discounts is relevant and admissible for determining the reasonableness of the plaintiff s medical expenses has been expressly rejected. Among other things, the concerns seem to be that admitting evidence of the write-offs and discounts will (1) impair or undermine tire collateral source rule; (2) confuse the juiy; and (3) be of marginal, or no, relevance. Each concern will be addressed in turn.
1. Impairment of Collateral Source Rule
The Wisconsin Supreme Court in Leitinger expressed the concern that admitting evidence of the discounts or reimbursement rates undermines the collateral source rule:
“[T]he tortfeasor is not to benefit from the fact that the medical sendees provider was paid less by a collateral source than the amount billed. If evidence of the collateral source payments were admissible, even for consideration of the reasonable value of the medical treatment rendered, a plaintiffs recovery of medical expenses would be affected by the amount actually paid by a collateral source for medical services. Such a ‘limitation’ on the plaintiffs damages contravenes tire view of the collateral source rule.” (Emphasis added.) 302 Wis. 2d at 135-36.
The Leitinger court further considered the argument that the defendant insurance company was not undercutting the collateral source rule because it was seeking to introduce as evidence only the amount actually paid for medical treatment, not the source of the compromised payments, and was not seeking “to reduce the damages by the amount of these collateral source payments.” 302 Wis. 2d at 136. The Wisconsin Supreme Court observed that this argument had been rejected by the South Carolina Supreme Court in Covington v. George, 359 S.C. 100, 104, 597 S.E.2d 142 (2004):
“The South Carolina Supreme Court evaluated an argument similar to [defendant’s], The court declared that ‘[w]hile facially appealing, this argument ignores the reality that unexplained, the compromised payments would in fact confuse the jury. Conversely, any attempts on the part of the plaintiff to explain the com promised payment would necessarily lead to the existence of a collateral source.’ The South Carolina Supreme Court held that the collateral source rule is directly implicated and that a party cannot introduce evidence of the actual payment by a collateral source to challenge the reasonableness of the plaintiffs medical expenses.” (Emphasis added.) 302 Wis. 2d at 137.
Like the South Carolina Supreme Court, the Leitinger court then rejected the defendant insurance company’s argument, essentially holding that the defendant was trying to outflank the collateral source rule:
“Although claiming that the evidence assists the fact-finder in determining the reasonable value of the medical treatment and does not limit or reduce the damages, [the defendant], in essence, is seeking to do indirectly what it cannot do directly, that is, it is seeking to limit [the plaintiff s] award for expenses for medical treatment by introducing evidence that payment was made by a collateral source. [Defendant] ignores the fact that the collateral source rule protects against the ‘ever-present danger that the juiy will misuse the evidence [of collateral payments] to diminish the damage award. [Defendant] is trying to circumvent the collateral source rule.
“The collateral source rule prevents the fact-finder from learning about collateral source payments, even when offered supposedly to assist the jury in determining the reasonable value of the medical treatment rendered, so that the existence of collateral source payments will not influence the fact-finder.” (Emphasis added.) 302 Wis. 2d at 137.
Apparently, Wisconsin’s Supreme Court — and Illinois’ in Wills-would be concerned in the instant case that once the juxy hears that $5,310 was accepted to satisfy the hospital’s original bill to plaintiff of $70,496.15, it would perhaps not only fail to award the $65,186.15 but that it would also deduct the paid $5,310 (or at least Coventry’s $4,689) from its final damage award. In other words, the jury would not even award for the $4,689 because that amount had already been paid by a collateral source, i.e., “ ‘the jury will misuse the evidence of collateral payments to diminish the damage award.’ ” 302 Wis. 2d at 137.
The evidence admitted, however, need not necessarily be “evidence that payment was made by a collateral source,” e.g., private insurance or Medicare. 302 Wis. 2d at 137. Accordingly, if the jury only hears that “the hospital will accept $5,000 to satisfy its bill of $70,000,” i.e., it does not hear that payment was actually made, then the juiy can still reasonably perceive that the plaintiff will make payment herself. Similarly, even if tire jury hears that “$5,000 has paid this $70,000 bill in full,” then the juiy can still reasonably perceive that the plaintiff has paid it herself, e.g., by receiving a cash discount. In fact, in the instant case, plaintiff did pay part of the bill herself.
Stanley v. Walker, 906 N.E.2d 852, is again particularly instructive. There, defendant Stanley conceded that he could not ask plaintiff the amount of expenses that were paid by his health insurance carrier because “ ‘that’s the collateral source.’ ” 906 N.E.2d at 858. Instead, he sought to enter into evidence the amount that two parties had agreed to as “reasonable,” as evidenced by the discounts. Specifically, Stanley wanted to submit evidence showing that the amount accepted in satisfaction of the medical charges totaled $6,820, that is, $4,750 less than the $11,570 originally billed. The court held that “[bjecause Stanley sought to do so without referencing insurance, his evidence should have been admitted.” 906 N.E.2d at 859.
Accordingly, we are unpersuaded that the “unexplained compromise payment” will cause ill effects. See Covington, 359 S.C. at 104 (rejecting defendant’s argument because “unexplained, the compromise payments would in fact confuse the jury”). We therefore respectfully disagree with the courts in Leitinger and Coving-ton.
2. Jury Confusion
As mentioned, in Leitinger the Wisconsin Supreme Court also articulated concerns about confusion caused by admitting evidence of discounts and reimbursement rates. This particular concern apparently arises because discounts can be due to factors besides the value of medical services: See, e.g., Wills, 229 Ill. 2d 393. This concern somewhat overlaps with the earlier articulated concerns by courts about unexplained compromise payments confusing the jury. See, e.g., Covington, 359 S.C. at 104.
“The admission in evidence of the amount actually paid in the present case, even if marginally relevant [to reasonable value of medical expenses], might bring complex, confusing side issues before the fact-finder that are not necessarily related to the value of the medical services rendered. Accordingly, [defendant insurance company] errs in insisting that the amount actually paid by a collateral source in the present case is a factor for the fact-finder in determining reasonable value of those services.” (Emphasis added.) 302 Wis. 2d at 145-46.
We are confident that any concerns about jury confusion with possible side issues can be alleviated by a vigilant trial court. At the time the write-off and discount evidence is admitted, the court can, if necessary, inform the jury of the evidence’s limited purpose. See K.S.A. 60-406 ("When relevant evidence is admissible ... for one purpose and is inadmissible for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.”). Kansas trial courts have been instructing juries in this fashion for many years. See State v. Kidwell, 199 Kan. 752, 755, 434 P.2d 316 (1967) (‘When evidence is introduced for a limited purpose the trial court should explain the limitation to the jury and limit its application to that purpose.”) (citing Griffith v. Railroad Co., 100 Kan. 500, 166 P. 467 [1917]). The trial court can also, if necessaiy, inform the jury of tire particular purpose of the evidence through limiting instructions at the time the case is submitted. See PIK Civ. 4th 102.40 (‘Whenever any evidence has been admitted limited to one purpose, the jury should not consider it for any other purpose.”).
We observe, for example, that Kansas courts frequently admit evidence in criminal trials of a defendant’s prior crimes and civil wrongs under K.S.A. 60-455. This evidence is potentially quite prejudicial as improper proof of defendant’s propensity to commit the present, often egregious, crimes. But the evidence is nevertheless allowed provided that the jury receives limiting instructions about the narrow purposes for its admissibility, e.g., motive and knowledge. See State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). And the failure to give such limiting instruction does not demand automatic reversal but is subject to a harmlessness analysis. 282 Kan. at 58; see State v. Cruse, 112 Kan. 486, 496, 212 P. 81 (1923).
We turn now to the specific concern about introducing confusing side issues that are not necessarily related to the reasonable value of the medical services rendered. We observe that in Wisconsin medical malpractice actions, evidence of collateral source pay ments nevertheless can be admissible for this particular valuation purpose. See Leitinger, 302 Wis. 2d at 140-41, 145 n.66 (“In Lag-erstrom, this court recognized that the legislature decided in enacting Wis. Stat. § 893.55[7] that evidence of collateral source payments may be relevant to determining the reasonable value of medical services” but “must not reduce the reasonable value of medical services by the amount of the collateral source payments.”).
Presumably, the Wisconsin trial courts take appropriate precautions when handling these malpractice cases and strike an acceptable balance between these competing considerations. Indeed, in Lagerstrom v. Myrtle Werth Hosp.-Mayo Health Sys., 285 Wis. 2d 1, 39, 700 N.W.2d 201 (2005), the Wisconsin Supreme Court ruled that while evidence of collateral source payments may be used by the jury to determine the reasonable value of medical services, “the circuit court must instruct the fact-finder that it must not reduce the reasonable value of medical services on the basis of the collateral source payments.” 285 Wis. 2d at 38. In this fashion, Wisconsin appears to ably address the aftermath of the concern of the South Carolina Supreme Court in Covington that “attempts on the part of plaintiff to explain the compromised payment would necessarily lead to the existence of a collateral source.” (Emphasis added.) 359 S.C. at 104. In short, die plaintiffs rights can be protected.
Several of our concurring colleagues criticize our rationale and holding. The following abbreviated responses are sufficient.
First, they contend that under our holding, the uninsured plaintiff is eligible to recover for the full amount of services billed while the insured plaintiff is not. They label this as discriminatory. We disagree. An uninsured plaintiff may herself pay her medical expenses at a negotiated price, e.g., steep cash discount upon her threat of bankruptcy. See Robinson, 112 Ohio St. 3d at 23 (“Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care.”). In that event, just as with an insured plaintiff who has insurance carrier write-offs, evidence of the lower amount accepted in full satisfaction of the debt could be admissible for determining the reasonable value of the medical services.
Second, in today’s world we do not share the concerns of our concurring colleagues about the purported catastrophic results emanating from a jury’s “likely inference” about the existence of a plaintiffs collateral source, e.g., medical insurance. For example, for years Kansas has required motor vehicle liability insurance coverage — or self-insurance — and prohibited the owner of an uninsured vehicle from allowing it to be operated on highways or upon property open to use by the public. K.S.A. 40-3104. And for years Kansas has also required owner certification of the maintenance of insurance before applying for registration or renewal of registration of motor vehicles. K.S.A. 8-173(c). Because Kansas juries are often selected from drivers’ license rolls, our juries obviously contain Kansas drivers and motor vehicle owners. Accordingly, they will “likely infer” insurance coverage for defendants and plaintiffs in cases involving motor vehicle accidents. Yet we routinely entrust our juries with considering liability and determining resultant damage amounts.
The two-car accident case of Bott v. Wendler, 203 Kan. 212, 453 P.2d 100 (1969), is of guidance on this issue. There, the jury sent back the following question to the court during their deliberation: “Amount of liability Ins. of Mrs. Bott and Mr. Wendler — There is a lot of money involved here and we do not want to leave either party penniless. This we need to know — Please.” 203 Kan. at 224. The jury rejected defendants’ damage claims and awarded damages to plaintiffs. Defendants appealed, arguing that because of plaintiffs’ counsel’s efforts, “the probability and fact that the defendants were covered by liability insurance was injected into the case which materially prejudiced the defendants.” 203 Kan. at 223. In one specific contention, defendants claimed that counsel had several times referred to men who the jury might have identified as representatives of defendants’ insurance carrier who had helped defense counsel investigate the case.
In rejecting defendants’ argument, we held that, among other things:
“Furthermore, there is nothing in the record to suggest that the juiy’s question to the court concerning liability insurance was motivated by any reference to insurance at the trial, nor does such fact suggest insurance was improperly injected into the case. It is general knowledge that most drivers today have liability insurance, and neither party to a lawsuit should be prejudiced by a question which may be prompted by the jury’s own experience and common knowledge of the affairs of mankind.” (Emphasis added.) 203 Kan. at 228.
See also Kelty v. Best Cabs, Inc., 206 Kan. 654, 481 P.2d 980 (1971) (Despite plaintiff s doctor’s “monstrous testimony” about insurance, e.g., his employment of “the opprobrious term,” the “malignant term,” and “odious expression”, court held reference was inadvertent and did not prejudicially affect the substantial rights of the complaining party.).
We now turn to the Wisconsin Supreme Court’s last set of concerns.
3. Relevance
The Leitinger court also expressed relevance concerns with evidence of discounts and reimbursement rates:
“The evidence [defendant insurance company] proffers will not assist tire fact-finder as [defendant] claims, because a particular health insurance company’s negotiated rates with a health care provider are not necessarily relevant evidence of the reasonable value of the medical services in a tort action. . . . The reimbursement rate of a particular health insurance company generally arises out of a contractual relationship and reflects a multitude of factors related to the relationship of tire insurance company, and the provider, not just to the reasonable value of die medical services.” (Emphasis added.) 302 Wis. 2d at 144.
See, e.g., Radvany v. Davis, 262 Va. 308, 310, 551 S.E.2d 347 (2001) (“negotiated amounts ... do not reflect the prevailing cost’ of those services to other patients”).
The Indiana Supreme Court in Stanley v. Walker essentially acknowledged this concern but nevertheless found the evidence of discounts relevant to the reasonable value of medical services:
“We recognize that the discount of a particular provider generally arises out of a contractual relationship with health insurers or government agencies and reflects a number offactorsnot just the reasonable value of the medical services. However, we believe that this evidence is of value in the fact-finding process leading to die determination of the reasonable value of medical services.” (Emphasis added.) Stanley, 906 N.E.2d at 858.
In Kansas, relevant evidence is any “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevance only requires a logical connection between the asserted facts and the inferences they are intended to estabhsh. State v. Richmond, 289 Kan. 419, Syl. ¶ 9, 212 P.3d 165 (2009). Given this standard, we agree with the Stanley court. Evidence of the amount accepted in satisfaction of the bill for medical services provided to an injured plaintiff is of relevance, i.e., some value, in determining the reasonable value of those services. As mentioned, the Leitinger court itself acknowledged that the Wisconsin Legislature apparently felt that evidence of collateral source payments was relevant in medical malpractice actions for the purpose of determining the reasonable value of medical services. 302 Wis. 2d at 140-41, 145 n.66; see also Scott v. Garfield, 454 Mass. 790, 912 N.E.2d 1000 (2009) (Cordy and Botsford, JJ., concurring) (“The plaintiff is only entitled to the reasonable value of his medical expenses, and the price that a medical provider is prepared to accept for the medical services rendered is highly relevant to that determination.”).
Moreover, when such relevant evidence is withheld from the jury, the jury is inappropriately left to speculate on the reasonable value of the medical services. We agree with the Leitinger dissent:
“ ‘If the higher stated medical bill, an amount that never was and never will be paid, is admitted without evidence of the lower reimbursement rate, the jury is basing their verdict on “mere speculation or conjecture.” The difference between the stated bill and the paid charges ... is purely fictional as a true charge.’ [Citation omitted.]” 302 Wis. 2d at 156 (Roggensack, J., dissenting).
The Leitinger dissent is consistent with this court’s long-stated concerns about awarding damages based upon speculative evidence:
“In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of the loss.” (Emphasis added.) McKissick v. Frye, 255 Kan. 566, 591, 876 P.2d 1371 (1994).
Here, if there is only evidence admitted of a $70,496.15 hospital bill, and no evidence of any lesser amount being accepted in satisfaction of that bill, a jury would easily be justified in awarding the full $70,496.15 as reasonable value of damages. Cf. Jackson v. City of Kansas City, 263 Kan. 143,151-52, 947 P.2d 31 (1997) (jury awarded more than amount of medical bills: court refused to reduce juiy verdict to amount actually paid by plaintiff on those bills because no evidence in record that hospital had settled for less than the amount due or had written off the remaining portion of the bills). This verdict would be sustainable despite the awarded amount being approximately 12 times the amount the defendant contends — and the hospital’s acceptance suggests — that the services are reasonably worth. With this result, we begin to leave the realm of compensatory damages and move toward the punitive.
Moreover, of this $70,496.15 awarded to plaintiff, not even the $4,689 actually paid by Coventry would be subject to subrogation. K.A.R. 40-1-20 provides:
“An insurance company shall not issue contracts of insurance in Kansas containing a ‘subrogation’ clause applicable to coverages providing for reimbursement of medical, surgical, hospital or funeral expenses.”
In conclusion, we reverse and remand to the district court for further proceedings. On remand the district court may allow into evidence (1) the original amount billed ($70,496.15), and (2) the amount accepted by the hospital in full satisfaction of the amount billed ($5,310). However, evidence of the source of any actual payments is inadmissible under the collateral source rule. The finder of fact shall determine from these and other facts the reasonable value of the medical services provided to plaintiff.
# # # | [
-48,
-8,
-35,
-84,
90,
96,
48,
10,
97,
-94,
119,
83,
-19,
-54,
-107,
107,
-91,
125,
96,
113,
-41,
-93,
23,
-21,
-42,
-73,
-15,
85,
-72,
-33,
-26,
-12,
77,
56,
-118,
-107,
102,
-53,
-59,
16,
-114,
-122,
-120,
-55,
-39,
-61,
48,
42,
50,
5,
113,
7,
-67,
44,
24,
79,
-55,
40,
123,
-79,
-44,
-80,
-86,
5,
94,
1,
33,
5,
60,
79,
-40,
50,
-110,
56,
9,
-23,
50,
-74,
2,
52,
35,
-71,
4,
96,
103,
48,
80,
-23,
124,
-68,
14,
-34,
29,
-121,
-111,
24,
67,
9,
-75,
-67,
124,
20,
6,
92,
-18,
12,
95,
109,
17,
-98,
-48,
-77,
-49,
112,
-98,
-49,
-25,
39,
-80,
101,
-50,
-32,
92,
-57,
48,
19,
-98,
-1
] |
The opinion of the court was delivered by
Nuss, J.:
The district court denied Stephen J. McGinnis’ motion to suppress and convicted him of felony driving under the influence and transporting an open container. After the Court of Appeals affirmed, we granted McGinnis’ petition for review under K.S.A. 20-3018(b).
The sole issue on appeal is whether the motion to suppress should have been granted, i.e., whether McGinnis’ initial contact with the deputy sheriff was a voluntary encounter or instead an investigatory detention unsupported by reasonable suspicion. We hold it was voluntary and affirm.
Facts
On March 20, 2007, at 10 a.m., Atchison County Deputy Sheriff Bryan Clark responded to a call of a possible stolen vehicle. Dis patch indicated the vehicle had Missouri plates and was found partially submerged in Independence Creek near its confluence with the Missouri River. Deputy Clark drove his marked law enforcement vehicle north on River Road toward an access road leading east to the vehicle’s reported location. When approaching the access road, he saw McGinnis driving in the same direction. Clark paid attention to McGinnis’ car because it was the only one in the area.
McGinnis briefly pulled his car to the side of River Road, near its intersection with the access road. He then pulled back onto River Road and drove Vio of a mile north. There he turned east onto a second access road: a 30- to 35-foot-long gravel path that basically ended at the bank of Independence Creek. He parked at the end of the path near the bank. Deputy Clark followed Mc-Ginnis onto the gravel path and parked two to three car lengths behind McGinnis’ car. As he parked, he saw McGinnis standing by the creek bank approximately 15 feet south of McGinnis’ car. McGinnis was looking south, the direction of the partially submerged vehicle, but trees and other foliage obstructed an observer’s line of sight.
Deputy Clark did not activate his vehicle emergency lights or sirens. Nor did he consider McGinnis a suspect. He got out to ask if McGinnis knew anything about the partially submerged vehicle. When walking by McGinnis’ car, Clark saw through the window a 12-pack of Natural Light Beer on the front passenger seat. Clark could not tell if any cans were open. He did not suspect McGinnis of intoxication because he had not witnessed any traffic infractions while following McGinnis there.
When Deputy Clark approached McGinnis near tire creek bank, he said “Hi” and asked how McGinnis was doing. He also asked if McGinnis knew anything about the partially submerged vehicle. McGinnis denied having knowledge of the vehicle and indicated that he was looking for a fishing spot, which is common in the area. During this brief encounter, Deputy Clark noticed three indicia of possible intoxication: McGinnis’ slurred speech, bloodshot eyes, and an odor of alcohol coming from him. According to Clark, at this point he began an investigation of driving under the influence of alcohol (DUI).
McGinnis admitted to consuming two beers and consented to a field sobriety test. His first attempt at reciting the alphabet was unsuccessful; he repeated and skipped letters and failed to end on the letter z. His second recitation was successful. But then he failed the one-leg stand while complaining that his feet hurt. Deputy Clark arrested McGinnis and offered a blood test, to which McGinnis agreed. The later blood test at Atchison Hospital revealed that his blood-alcohol level was .12 grams per 100 milliliters of blood, in excess of the legal limit.
The State charged McGinnis with felony DUI, as it was his fourth offense. He was also charged with transporting an open container because one was found in his vehicle after his DUI arrest. After the preliminary hearing, McGinnis filed a motion to suppress all evidence based upon unlawful restraint and seizure without reasonable suspicion of criminal activity. After an evidentiary hearing, the district court denied the motion. It found the initial encounter between Clark and McGinnis was voluntary and properly turned into an investigatory detention.
The same judge then conducted the bench trial. By stipulation, the trial evidence consisted entirely of the transcripts of the preliminary and suppression hearings, at which only Clark had testified. The court then found McGinnis guilty of both charges. McGinnis appealed the denial of his motion to suppress, but a Court of Appeals panel unanimously affirmed. It too held that the initial encounter was voluntary, which then escalated into an investigatory detention:
“Here, Clark was the only law enforcement officer involved in the encounter. Significantly, he parked his patrol vehicle two or three car lengths behind Mc-Ginnis’ car, and the evidence was undisputed that McGinnis’ car was not blocked from leaving the driveway. Clark did not activate his emergency lights when he exited his patrol vehicle. Clark approached McGinnis on foot and did not brandish any weapons. The evidence established that Clark spoke in a normal voice and he did not command McGinnis to stop or to answer any questions. Clark did nothing to convey to McGinnis that he was being detained against his will. Viewed objectively, McGinnis was free to leave, and he could have declined to answer Clark’s initial questions. Under the totality of the circumstances, the initial encounter between Clark and McGinnis was voluntary.” State v. McGinnis, 40 Kan. App. 2d 620, 627-28, 194 P.3d 46 (2009).
We granted McGinnis’ petition for review on this issue. More facts will be added as necessaiy to the analysis.
Analysis
Issue: The initial encounter between McGinnis and Deputy Clark was voluntary.
McGinnis argues that the entire encounter with Deputy Clark was an involuntary, investigatory detention unsupported by reasonable suspicion and the district court therefore improperly denied his motion to suppress. More particularly, McGinnis primarily argues the encounter was not voluntary because the deputy’s vehicle blocked his car and prevented his leaving the access road. McGinnis argues that as a result, all evidence obtained must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
The State responds that the situation started as a voluntary encounter and McGinnis’ departure was not blocked. The episode transitioned into a valid investigatory detention when Deputy Clark smelled alcohol, reasonably suspected McGinnis had been drinking, and began his DUI investigatory detention.
Our standard of review for general motions to suppress evidence is well known:
“ “When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. [Citation omitted.] The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]’ ” State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009) (quoting State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 [2007]).
The parties focus their arguments on whether the initial encounter was consensual, i.e., voluntary. A voluntary encounter is not considered a seizure and is not afforded protection by the Fourth Amendment to the United States Constitution. State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 (2003). As a result, if we hold that the encounter was voluntary, then the DUI evidence was properly obtained.
The United States Supreme Court has developed a “totality of the circumstances” test to determine if there is a seizure, or instead a consensual encounter. See State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). “[U]nder the test, law enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the law enforcement officer’s conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter.” 284 Kan. at 775. Stated another way, “ ‘[s]o long as a reasonable person would feel free to “disregard the police and go about his business,” [citation omitted], the encounter is consensual and no reasonable suspicion is required.’ ” State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 [1991]). Consequently, in Reason we held that only if “ ‘ “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” ’ ” 263 Kan. at 410-11.
The standard of appellate review for this specific subset of suppression determinations — the trial court’s decision of whether the encounter is consensual or a seizure — is quite similar to the standard for general suppression of evidence:
“Appellate review of the trial court’s determination of whether a reasonable person would feel free to refuse the officer’s requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to otherwise terminate the encounter, is reviewed under a de novo standard.” Thompson, 284 Kan. at 776 (citing Moore, 283 Kan. at 352).
We begin our analysis by acknowledging that a seizure does not occur simply because a police officer approaches an individual and asks a few questions:
“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen .... [Citations omitted.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation omitted.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations omitted.]” Florida v. Royer, 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983).
See Thompson, 284 Kan. 763, Syl. ¶ 17 (“Law enforcement questioning, by itself, is unlikely to result in a Fourth Amendment violation. Unless the surrounding conditions are so intimidating as to demonstrate that a reasonable person would have believed he or she was not free to disregard the questions, there has been no intrusion upon the detained person s liberty or privacy that would implicate the Fourth Amendment.”).
Accordingly, over the years we have recognized several objective factors to help determine whether a law enforcement-citizen encounter is voluntary or an investigatory detention. This nonex-haustive and nonexclusive list includes: the presence of more than one officer, the display of a weapon, physical contact by tire officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. See State v. Lee, 283 Kan. 771, 775, 156 P.3d 1284 (2007); State v. Morris, 276 Kan. 11, 19-20, 72 P.3d 570 (2003); State v. Gross, 39 Kan. App. 2d 788, 798-800, 184 P.3d 978 (2008).
There is no rigid application of these factors; instead, we analyze the facts of each case independently. We have held that “[i]n applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.” Thompson, 284 Kan. 763, Syl. ¶ 20. On the other hand, “we do not expect courts to merely count the number of factors weighing on one side of the determination or tire other. In the totality of the circumstances, a factor may be more indicative of a coercive atmosphere in one case than in another. [Citations omitted.]” 284 Kan. at 804.
McGinnis argues that a reasonable person would not have felt free to leave under the totality of the circumstances facing him. As mentioned, he primarily argues that Deputy Clark’s parked vehicle blocked his car and effectively prevented him from exiting the access road, constituting a show of authority. As his main support, McGinnis points out that Clark had testified at the preliminary hearing that McGinnis was blocked in and could not leave.
Deputy Clark had further described the access road, however, as a 10- to 15-foot-wide path which, in March, had little vegetation on either side. He had also testified at the later suppression hearing that while the gravel path comes to a dead end near the creek bank, a driver could either back a vehicle out or use the available grassy area to maneuver and eventually exit the path “front-ways” to avoid the deputy’s vehicle. We observe that the district court found at trial, based upon tire transcripts of the preliminary and suppression hearings at which only Clark testified, that Clark parked two to three car lengths behind McGinnis’ car. More important, the court also found “from the testimony” that “Officer Clark was not blocking the defendant’s vehicle” because “there was room to maneuver.” Because we do not weigh conflicting evidence or redetermine questions of fact, State v. White, 284 Kan. 333, 340, 161 P.3d 208 (2007), we easily conclude there is substantial competent evidence supporting these factual findings. See Moore, 283 Kan. at 349 (when reviewing motion to suppress evidence, appellate court reviews factual underpinnings of a district court’s decision for substantial competent evidence).
The case of State v. Parker, 282 Kan. 584, 147 P.3d 155 (2006), contains great guidance concerning the location of the law enforcement vehicle as a factor in the seizure test. There, a police officer drove his marked patrol car to an apartment complex to inquire why three individuals were “hanging out” in a garage. The officer pulled into the driveway leading to the garage and parked behind two other cars in the driveway. Two of the three men in the garage walked over to the officer’s car, and the officer noticed one man’s hand remained in his pocket. The officer exited his car and asked both men to lift their shirts to see if they were armed. Neither was armed, and the officer asked if either had anything illegal. One of the men produced marijuana, and the officer subsequently discovered crack cocaine on the other.
The Parker defendant moved to suppress the evidence. He claimed the encounter was an investigatory detention from the onset solely because the officer prevented Parker from leaving by blocking Parker s car in the driveway. We rejected his argument that this alone constituted a show of authority. We concluded that without other evidence that the officer made a show of authority, the encounter began voluntarily.
Admittedly, Parker can be distinguished because of our apparent partial rebanee there upon the officer s lack of intent to block the defendant’s car. We stated that “[ajbsent facts to establish an intent to block Parker’s car, we cannot conclude that the placement of the car is sufficient to estabbsh a show of authority.” 282 Kan. at 592. We reiterate, however, that the seizure test is based upon the viewpoint of a reasonable person, i.e., an objective determination: “[Wjhether a reasonable person would feel free to refuse the requests or to otherwise terminate the encounter.” Thompson, 284 Kan. at 776; see Moore, 283 Kan. at 352 (citing State v. James, 276 Kan. 737, 749, 79 P.3d 169 [2003] [applying the objective standard of a reasonable person]). Although Parker mentions officer intent, i.e., a subjective factor, that decision should not be interpreted as changing the objective requirement.
One year after Parker, we held in Thompson that the law renders the officer’s subjective intent irrelevant unless the driver is somehow made aware of the intent. Since there was no evidence that the driver in Thompson was aware of the officer’s intent, we held that the Court of Appeals erred in considering intent when determining whether the encounter was consensual. 284 Kan. at 806-07; see also United States v. Mendenhall, 446 U.S. 544, 554 n.6, 64 L. Ed. 2d 497, 100 S. Ct. 1870, reh. denied 448 U.S. 908 (1980) (subjective intent of pobce is irrelevant to question whether seizure occurred unless it is conveyed to defendant). Similar to our observation in Thompson, there is no evidence in the instant case that McGinnis was aware of any intent by Deputy Clark to block his car.
We find additional guidance in Reason, 263 Kan. 405, where a police officer stopped his patrol car behind a parked BMW in a Wichita park. Two officers exited and approached the BMW, which had both doors open and two occupants sleeping in the front seats. The officers woke the occupants, asked for identification, and checked the vehicle registration. Subsequent events produced drugs and drug paraphernalia. The defendant filed a motion to suppress the evidence by challenging the voluntariness of the initial encounter, which the district court denied.
As in Thompson, the Reason court first acknowledged the objective nature of the applicable test:
“ “We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate dre encounter.’ ” (Emphasis added.) 263 Kan. at 411 (quoting Bostick, 501 U.S. at 439).
The evidence showed that “[tjhere was room for the BMW to leave by pulling forward and circling in the parking lot to the exit road.” 263 Kan. at 406. The position of the police car clearly did not help create an initial seizure because the court concluded that “the officers’ approach [to defendant’s] vehicle and questioning of [defendant] and [passenger] fit the voluntary encounter situation.” 263 Kan. at 412. It was also noted that “[t]he officers did not thwart any attempt by [the vehicle occupants] to leave or malee any untoward demonstration of authority, show weapons, or engage in other coercive behavior.” 263 Kan. at 412. Consequently, the court ultimately held the initial encounter voluntary.
Like Parker and Reason, this court also considered the police vehicle placement factor in the seizure test in State v. Baacke, 261 Kan. 422, 932 P.2d 396 (1997). There, Baacke and his friend Keen robbed and killed an elderly woman in her rural Kansas home and stopped in a city park in Huntington, Arkansas, to spend die night. The town’s police chief noticed the vehicle and contacted Keen, who was behind the steering wheel, and asked for identification. He noticed defendant Baacke sleeping in the back seat. Keen accompanied the chief to the patrol car to check on his identity. When asked if any weapons, drugs, or contraband were in the vehicle, Keen replied there was a loaded, sawed-off shotgun in the back with his friend. Both were placed under arrest for possessing a prohibited weapon. Baacke ultimately confessed to his involvement in the crimes.
The district court denied Baacke’s motion to suppress his statements. On appeal, Baacke argued that the chiefs initial contact was an illegal detention. He claimed that “Keen had no ability to terminate the interview because his car was blocked in a wooded area by [the chief s] vehicle, parked 15 feet away.” 261 Kan. at 438. This court rejected his claim:
“Nothing in the record suggests that Keen attempted to terminate the encounter with [the chief] or asked to leave, or that [the chief s] vehicle actually prevented his departure. These circumstances would support a finding that a reasonable person would have felt free to leave under the test articulated in Florida v. Royer, 460 U.S. 491, 502, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). Further, the record indicates both Keen and Baacke appeared very willing to comply with every request of the officers.” 261 Kan. at 438.
On the other end of the police vehicle placement continuum are several cases cited by McGinnis. Twenty-five years ago in State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), an officer was in a marked police car checking for signs of forced entry on buildings due to a high number of recent burglaries in the area. At 2 a.m. the officer noticed a legally parked BMW with two occupants. Both occupants appeared startled and one reached quickly to the car floor and straightened back up. The officer immediately pulled his car out of the alley and parked in the middle of the street near the BMW. The two BMW occupants exited their car and started to walk away, but the “officer left his car veiy quickly and, in order to detain the men who appeared to be leaving,” called out to them. 237 Kan. at 708. They stopped. During their conversation near the BMW, the officer noticed an axe handle under the driver’s seat, which he retrieved. While reaching for the axe, he looked under the passenger seat and found cocaine.
The defendants in Epperson moved to suppress the evidence, claiming the initial encounter was an investigatory detention unsupported by reasonable suspicion. The trial court and Court of Appeals agreed, and we affirmed. We held that the officer
“'parked his patrol car in such a manner that his open car door blocked the lane of travel in which the BMW was parked. The trial court found that he ‘cut off their avenue of escape’ by leaving his car door open. Under the facts as disclosed in this record, we conclude that the officer stopped the defendants. The evidence permits no other finding. Since he had no basis in fact for reasonably suspecting that the defendants were involved in criminal activity, the stop amounted to a seizure of the defendants and was unlawful. . . .” (Emphasis added.) 237 Kan. at 714.
The Epperson court also relied upon the officer s oral communications to the defendants to support its seizure conclusion. As the officer approached the defendants, he said, “Excuse me,” or “Sir,” or “something to that effect” to get their attention. He admitted he could have said, “Wait,” or '“Wait a minute,” or words to that effect. 237 Kan. at 713. The court concluded he “did not want the men to leave; he wanted them to remain there while he checked them out.” 237 Kan. at 714.
Epperson is distinguishable from the facts of the instant case, however, for the same basic reasons expressed by this court in Parker. “In Epperson, the police officer made a show of authority by parking his car in the middle of the street and blocking the defendant’s car. The officer then called out to the defendant as he was walking away from the car.” 282 Kan. at 592.
A second case somewhat on the Epperson end of the police vehicle placement continuum is Morris, 276 Kan. 11. In Morris, sheriff s officers found defendant parked in his pickup on a rocky jetty-breaker area at a lake area. Around 9:15 p.m. the officers pulled their two vehicles in behind the pickup “ ‘and activated the red lights and illuminated the back of his pickup with . . . spot-fights.’ ” 276 Kan. at 13. They approached the truck on foot and noticed a chemical odor associated with methamphetamine labs coming from inside. Morris was eventually asked to step out of the truck and after further officers’ observations, they searched the truck and found “ ‘a fairly complete meth lab.’ ” 276 Kan. at 14.
Morris moved to suppress on the basis of an involuntary encounter. The trial court denied the motion, the Court of Appeals affirmed, but we reversed. We held that Morris’ encounter was not voluntary. We concluded that the officers’ conduct, the activation of the fights in a remote area off a roadway, was a show of authority and Morris submitted to that show. Despite the placement of the vehicles, there was no apparent discussion about law enforcement blocking the defendant’s departure.
Morris is distinguishable from the facts of the instant case for the same basic reasons expressed by this court in Parker: “This case is distinguishable from Morris, where the officers activated their emergency lights behind a parked car occupied by the defendant. The Morris court specifically relied on die activation of the officers’ emergency fights in concluding that the encounter was not voluntary.” 282 Kan. at 593 (citing Morris, 276 Kan. at 20).
A third case on the Epperson end of the continuum is State v. Gross, 39 Kan. App. 2d 788, 184 P.3d 978 (2008). There, driver Stroot parked and got out of his car, when two officers in a patrol car parked parallel to or behind his car. The Court of Appeals panel appeared to rely, in part, upon this factor to conclude that the encounter was not voluntary. See 39 Kan. App. 2d at 797-801. However, other factors demonstrating a show of authority were also involved. The panel noted that the police vehicle emergency fights were activated. Additionally, while Stroot was walking from his car to a nearby house, one officer called out and asked Stroot where he was going. Stroot was eventually ordered to the back of the patrol car where he was further questioned.
Another officer approached defendant Gross, who was seated in Stroot’s car, and asked her questions about where she was going. That officer confronted Stroot with Gross’ answers and then returned to Gross. He asked her to open her door, told her he was entitled to the information and directed her to roll down the window or open the door. She complied. The panel had little apparent difficulty in concluding that Stroot was prevented from walking away from his car, that Gross was restricted in exiting the car while the officer asked questions, and that the position of the police vehicle with emergency fights activated all demonstrated that “the officers were in control and Stroot and Gross were obeying.” 39 Kan. App. 2d at 799. The court concluded: “It became clear that the officers were not going to leave Stroot and Gross alone until the officers got the information they wanted. A reasonable person in Gross’ position would not have felt free to disregard the officers’ requests and terminate the encounter.” 39 Kan. App. 2d at 799. This combination of many factors compromising a seizure makes Gross easily distinguishable from the facts of the instant case.
After review of this case law, we conclude that under the totality of these circumstances, Deputy Clark’s conduct would convey to a reasonable person that he or she was free to refuse to answer the deputy’s questions or otherwise terminate the initial encounter. See State v. Thompson, 284 Kan. 763, 775, 163 P.3d 1015 (2007). In short, it was voluntary until Clark began his DUI investigation. McGinnis admits that the relevant circumstances in this seizure test include the presence of only one officer, Deputy Clark; the lack of the display of any of Clark’s weapons; the lack of physical touching by Clark until effectuating the arrest for DUI; the lack of Clark’s commanding tone, indeed, his maintenance of a cordial and conversational tone until initiating the DUI investigation; the lack of a Clark command for McGinnis to halt or to approach Clark; and the lack of activation of Clark’s vehicle emergency lights or sirens.
The primary factor advanced by McGinnis in support of an investigatory detention, the location of Deputy Clark’s vehicle in relation to his own, makes this case most similar to Parker. As mentioned, there we held this factor was insufficient to constitute a seizure in fight of the other circumstances indicating a consensual encounter. 282 Kan. at 593; see State v. Reason, 263 Kan. 405, 411-13, 951 P.2d 538 (1997); Baacke, 261 Kan. at 438. We acknowledge that courts should not merely count the number of factors weighing on one side of the determination or the other and that, in the totality of the circumstances, a particular factor may be more indicative of a coercive atmosphere in one case than another. Thompson, 284 Kan. at 804. However, here the court found McGinnis was not blocked; he could have maneuvered and driven away. Deputy Clark left space between his car and McGinnis’— 2-3 car lengths. Even if he intended to prevent McGinnis’ departure, e.g., by leaving his door open to block the exit as in Epperson, there is no evidence in the record indicating his intent was communicated to McGinnis, which would allow its consideration in the seizure calculus. See Thompson, 284 Kan. at 809.
Even if McGinnis were prevented from leaving by the location of Deputy Clark’s vehicle, we observe that the Tenth Circuit Court of Appeals has held that this fact, by itself, is not dispositive of the voluntariness of the encounter:
“[H]ere, Officer Zepeda simply approached Mr. Thompson and asked if he could speak to him. The officer did not block his path or restrain him in anyway. Where an individual is on foot when approached by the police officer, the fact that his car may be blocked does not, in itself, render the person’s decision to answer questions or consent to a search involuntary.” United States v. Thompson, 546 F.3d 1223, 1229 (10th Cir. 2008).
Besides placement of Deputy Clark’s vehicle, McGinnis’ brief to the Court of Appeals appears to mention two other, albeit considerably lesser, alleged points for consideration in the totality of the circumstances. The Court of Appeals opinion mentions but does not truly analyze them: (1) Deputy Clark’s questioning of McGinnis “about a known criminal act” (or a “reported crime”) and (2) approaching McGinnis while McGinnis was standing by his car near the creek bank looking for a fishing spot. This incomplete, or lack of, analysis is not critical to our own analysis for several reasons.
First, according to the factual recitations in McGinnis’ brief and his petition for review, Officer Clark “testified that he said ‘hello,’ asked Mr. Clark if ‘everything was okay’, and then asked whether he knew anything about the submerged vehicle.” None of the record citations McGinnis provides, and frankly nothing anywhere else in the record indicates, that Clark mentioned to McGinnis that the submerged vehicle was allegedly stolen, i.e., a “known criminal act.” Nor is there anything in the record indicating that McGinnis had independent knowledge of the vehicle being involved in, or subject to, any criminal act. The test for a seizure requires us to examine the totality of the circumstances from an objective viewpoint. We therefore do not deem this otherwise innocuous question to be a consideration when determining whether a reasonable person would feel free to refuse to answer it or to otherwise terminate the encounter.
Second, as for Clark’s approaching McGinnis, we previously mentioned that “[l]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen . . . .” Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). The alternative of calling McGinnis to approach Deputy Clark clearly would be more of a demonstration of authority. See Gross, 39 Kan. App. 2d at 799-801 (part of the totality of circumstances demonstrating a seizure was ordering driver back to the car as he walked away); cf. Epperson, 237 Kan. at 713-14 (part of the totality of circumstances demonstrating seizure of defendants was the officer s calling out to them, which stopped them as they walked away from their parked car).
We believe that the deputy was authorized to do more than patiently wait for McGinnis to approach him according to Mc-Ginnis’ personal timetable — assuming McGinnis would do so at all when he was done fishing or at least done looking for a fishing spot. See Reason, 263 Kan. at 411-13 (although no articulable suspicion that defendant and passenger were committing crimes, officers’ approach to defendant’s vehicle parked in city park and their questioning of defendant fit voluntary encounter situation; there was room for vehicle to leave and officers did not thwart any attempt to leave, make any untoward demonstration of authority, show weapons, or engage in other coercive behavior); State v. Young, 37 Kan. App. 2d 700, 714-17, 157 P.3d 644 (2007) (voluntaiy encounter where uniformed and armed officer exited vehicle and approached defendant on foot before defendant left the park, but no evidence officer commanded defendant to stop, blocked his path, or prevented him from leaving; also no evidence officer demanded that defendant answer any of his questions). But to the extent that approaching McGinnis under these circumstances is a consideration, however small, in the seizure calculus, we hold that the result and analysis presented above in Reason controls. See Thompson, 546 F.3d at 1226-29.
Because we hold the encounter was voluntary, we need not reach McGinnis’ argument that the involuntary encounter was not supported by reasonable suspicion.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. | [
-48,
-20,
-24,
-100,
59,
96,
58,
-68,
81,
-13,
-11,
115,
109,
-40,
13,
115,
-22,
-1,
117,
121,
-63,
-90,
107,
-63,
50,
-13,
-102,
-57,
-78,
91,
124,
-60,
89,
-16,
-118,
-43,
102,
72,
-123,
-34,
-114,
0,
-87,
-63,
80,
90,
36,
43,
70,
15,
53,
31,
-29,
59,
25,
-61,
-87,
44,
-53,
-91,
-64,
112,
-39,
31,
31,
4,
-95,
52,
-104,
33,
120,
58,
-104,
49,
80,
-8,
123,
-122,
-108,
-11,
75,
-113,
-84,
-90,
98,
33,
57,
-49,
-91,
-72,
62,
90,
-123,
38,
-40,
73,
73,
36,
-105,
93,
121,
22,
14,
-8,
-30,
69,
93,
124,
35,
-50,
-72,
-79,
73,
48,
6,
25,
-53,
-123,
38,
33,
-49,
-30,
92,
69,
112,
-37,
-114,
-44
] |
The opinion of the court was delivered by
Luckert, J.:
Alejandro Gomez pleaded guilty to one count of aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 2006 Supp. 21-3504(a)(3). The district court denied his motion for a durational departure sentence and sentenced him to life in prison with a mandatory minimum sentence of 25 years under K.S.A. 2006 Supp. 21-4643(a)(l)(C), commonly known as Jessica’s Law. The district court also imposed postrelease supervision for life pursuant to K.S.A. 2006 Supp. 22-3717(d)(l)(G), (d)(2)(C).
For the first time on appeal, Gomez challenges his sentence as a cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitu tion Bill of Rights, arguing the sentence is disproportionate. In response, the State argues Gomez is not entitled to a proportionality review under the Eighth Amendment and his failure to make a specific objection and to present a basis for his challenge while in the district court is fatal to his request for review on the merits. We reject the State’s argument that a proportionality challenge is not allowed under the Eighth Amendment in light of the recent decision in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825, (2010), which was decided after this case was submitted to this court. However, we agree with the State’s argument that Gomez’ failure to preserve the issues precludes our review.
Factual and Procedural Background
Under the plea agreement, Gomez was free to seek a durational departure sentence, but the State could oppose such a request. There was no indication in the plea agreement that Gomez would argue the unconstitutionality of the life sentence.
As permitted under the agreement, Gomez filed a motion for a sentencing departure based on several alleged factors, including his accepting responsibility for the crime, his cooperation with law enforcement during the investigation, his remorse, his lack of criminal history, his risk of being deported, and an evaluation, not included in the record on appeal, indicating Gomez’ “low risk” of recidivism and the absence of “danger to the public.” After considering the mitigating factors presented by Gomez, the district court denied his motion for a durational departure sentence, finding no substantial and compelling reason to depart from the minimum statutory sentence.
Gomez did not raise a cruel and unusual punishment argument in his motion for departure or in his oral arguments at the sentencing hearing. Nor did he ask for findings relating to the cruel and unusual nature of the sentence.
Gomez filed a timely appeal. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
Cruel and/or Unusual Punishment
Gomez does not separately analyze his claims that his life sentence imposed upon him under K.S.A. 2006 Supp. 21-4643(a)(l)(C) violates the constitutional prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, and against cruel or unusual punishment found in § 9 of the Kansas Constitution Bill of Rights. Nevertheless, the State appropriately separates the analysis, and we will as well.
Issue Raised for First Time on Appeal
There is, however, a threshold question that applies to both the federal and state constitutional issues: Can Gomez’ cruel and unusual punishment arguments be considered for the first time on appeal? This court has held, in general, that constitutional issues cannot be raised for the first time on appeal. State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). Three exceptions to the general rule (hereinafter referred to as Pierce exceptions) have been recognized, however. They are: “(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.” Ortega-Cadelan, 287 Kan. at 159; see Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967).
Gomez argues his case falls within the first and second Pierce exceptions because the issue only involves a question of law and relates to the fundamental right that prohibits cruel and unusual punishment. The State also argues that the first Pierce exception applies, but only to the extent of considering whether as a matter of law a defendant may make an Eighth Amendment proportionality claim. Any further analysis, the State argues, fails to satisfy any of the three exceptions.
Eighth Amendment
The State’s argument, in part, is that the United States Supreme Court’s decisions in Ewing v. California, 538 U.S. 11, 155 L. Ed. 2d 108, 123 S. Ct. 1179 (2003); Lockyer v. Andrade, 538 U.S. 63, 155 L. Ed. 2d 144, 123 S. Ct. 1166 (2003); Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991); Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), and Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), effectively eliminated proportionality claims made under the Eighth Amendment. The State was not alone in this assessment. In 1980, this court concluded that the United States Supreme Court “in Rummel essentially rejects the proposition that disproportionality analysis is required by the 8th Amendment. The length of sentence imposed on felons is solely a legislative decision.” State v. McDaniel & Owens, 228 Kan. 172, 184, 612 P.2d 1231 (1980). The decisions subsequent to Rummel, in the Supreme Court’s own words, did “not [establish] a clear or consistent path for courts to follow” regarding proportionality challenges. Lockyer, 538 U.S. at 72.
Nevertheless, on May 17, 2010, the Supreme Court called this court’s conclusion in McDaniel into doubt when it announced:
“The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ Weems v. United States, 217 U.S. 349, 367, 54 L. Ed. 793, 30 S. Ct. 544, (1910).” Graham, 560 U.S. at __.
In light of this holding, we cannot accept the State’s argument that Gomez cannot as a matter of law make a proportionality claim based on the Eighth Amendment.
This limited question of law is the only question regarding which the parties agree that one of the Pierce exceptions might apply. The State argues that any other aspect of Gomez’ proportionality arguments includes factual components that must be raised before the district court. However, this argument was made pre-Graham and focused on an analysis under the Kansas Constitution. We must determine whether the argument is valid given the analytical framework established in the Graham decision. Graham does not directly answer the question, but the opinion aids our determination of whether one of the Pierce exceptions applies.
Specifically, we find guidance in the Graham Court’s statement of the test to be applied to a proportionality challenge. In that discussion, the Graham Court discussed its past decisions and placed those decisions into two general classifications. “The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.” Graham, 560 U.S. at __. In explaining the analysis under the first category, the Court stated:
“The controlling opinion in Harmelin explained its approach for determining whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime. A court must begin by comparing the gravity of the offense and the severity of the sentence. 501 U.S., at 1005 (opinion of KENNEDY, J.). ‘[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality’ the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation omitted.] If this comparative analysis validate^] an initial judgment that [the] sentence is grossly disproportionate,’ the sentence is cruel and unusual. [Citation omitted.]” Graham, 560 U.S. at __.
Chief Justice Roberts, in his concurring opinion, expanded on the considerations discussed in past cases, noting:
“Our cases indicate that courts conducting ‘narrow proportionahiy’ review should begin with a threshold inquiry that compares ‘the gravity of the offense and the harshness of the penalty.’ Solem, 463 U.S., at 290-291. This analysis can consider a particular offender’s mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history. Id., at 292-294, 296-297, and n.22, (considering motive, past criminal conduct, alcoholism, and propensity for violence of the particular defendant); see also Ewing, supra, at 28-30, (plurality opinion) (examining defendant’s criminal history); Harmelin, 501 U.S., at 1001-1004, (opinion of KENNEDY, J.) (noting specific details of the particular crime of conviction).” Graham, 560 U.S. at __ (Roberts, C.J., concurring).
These factors are case specific and inherently factual, and “[a]ppellate courts do not make factual findings but review those made by district courts.” State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). Consequently, we conclude Gomez’ failure to raise these issues before the district court and obtain the necessary findings of fact precludes our review of the first, as-applied, classification discussed in Graham, 560 U.S. at __. See State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009) (“[A] defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165 [2009 Kan. Ct. R. Annot. 239], if necessary.”).
The second classification discussed in Graham, 560 U.S. at __, was the categorical challenge that had historically been preserved for death penalty challenges. Despite the previously limited context in which the classification had been applied, the Graham majority applied the categorical analysis to a term-of-years challenge and concluded the Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime.
From the Graham Court’s analysis it is not clear whether the Court would apply the categorical analysis in other contexts. Consequently, if we were to conduct a categorical analysis, the first question we would have to decide is whether the analysis would be extended to other categorical challenges. If we were to apply the categorical analysis, the Graham Court outlined the analytical framework that would apply. The Court explained there are two subsets of these cases, “one considering the nature of the offense, the other considering the characteristics of the offender.” Graham, 560 U.S. at __. The Court then explained:
“The Court first considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation omitted], the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” Graham, 560 U.S. at __.
Explaining the application of these factors, the Court stated:
“Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual. [Citation omitted.] In accordance with the constitutional design, ‘the task of interpreting the Eighth Amendment remains our responsibility.’ [Citation omitted.] The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in fight of their crimes and characteristics, along with the severity of the punishment in question. [Citations omitted.] In this inquiry the Court also con siders whether the challenged sentencing practice serves legitimate penological goals. [Citations omitted].” Graham, 560 U.S. at __.
The Graham Court noted its past cases recognized retribution, deterrence, incapacitation, and rehabilitation as “legitimate” goals of penal sanctions. Graham, 560 U.S. at __.
These factors are not case specific and generally raise questions of law. Given that consideration, the first Pierce exception — questions of law may be raised for the first time on appeal if determinative of a case — may apply. But two additional considerations arise regarding whether we can reach an Eighth Amendment categorical analysis. First, even though we recognize that Gomez’ brief was filed before the Graham decision, Gomez has not filed a Rule 6.09(b) supplementation of authority to ask us to consider and apply Graham. See Supreme Court Rule 6.09 (2009 Kan. Ct. R. An-not. 47). Second, although Gomez cites to the Eighth Amendment in his appellate brief, he does not develop the argument and he does not cite any decisions of the United States Supreme Court in support of his passing reference to the Eighth Amendment. Rather, he focuses on Kansas cases and the analytical framework adopted in this court’s decisions.
To preserve an issue for appellate review, a party must do more than incidentally raise the issue in an appellate brief. The party must present an argument and support that argument with pertinent authority or show why the argument is sound despite a lack of supporting authority or in the face of contrary authority. Otherwise, the argument will be deemed abandoned. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008) (failure to support point with pertinent authority or show why it is sound despite lack of supporting authority or in face of contrary authority is akin to failing to brief issue); Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (point raised incidentally in brief and not argued there is deemed abandoned). We deem Gomez’ argument under the Eighth Amendment to have been abandoned. Hence, we do not decide whether a categorical challenge could be brought under the circumstances of this case or whether, if allowed, such a challenge would be meritorious.
Kansas Constitution
We turn to Gomez’ argument that his life sentence violates § 9 of the Kansas Constitution Bill of Rights because the sentence is disproportionate. As opposed to the decisions of the United States Supreme Court, the decisions of this court in applying § 9 of the Kansas Constitution Bill of Rights have consistently allowed a claim that a term-of-years sentence was disproportionate. In McDaniel, after noting the perceived retreat by the United States Supreme Court from its proportionality cases, this court concluded it would continue to apply the proportionality test established in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). 228 Kan. at 184-85.
In Freeman, this court recognized: “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” Freeman, 223 Kan. at 367. We set out a three-part test to aid in administering this principle, stating:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
In recent opinions, we have held that the Freeman factors include both legal and factual inquiries and that no single factor controls the outcome. State v. Oehlert, 290 Kan. 189, Syl. ¶ 3, 224 P.3d 561 (2010); State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009); Seward, 289 Kan. at 719; State v. Easterling, 289 Kan. 470, 486, 213 P.3d 418 (2009); State v. Spotts, 288 Kan. 650, 653, 206 P.3d 510 (2009); Thomas, 288 Kan. at 161; Ortega-Cadelan, 287 Kan. at 161. Because of the factual inquiries involved, we have concluded none of the Fierce exceptions applies and have refused to consider an argument that a sentence is cruel and unusual for the first time on appeal, citing as reasons that the State has not been given the opportunity to develop a record on the issue and the district court had not made factual findings. See Mondragon, 290 Kan. 1158, Syl. ¶ 2; Easterling, 289 Kan. at 485-87; Spotts, 288 Kan. at 653-54; Thomas, 288 Kan. at 161; Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2.
In Seward, 289 Kan. 715, we did remand the case for further proceedings after finding that the defendant had sufficiently preserved the cruel or unusual punishment issue. The procedural history in Seward stands in sharp contrast to that in this case. Seward mentioned his cruel or unusual claim during plea negotiations, included it in his written downward departure motion, and reiterated the claim on the record at the sentencing hearing. In contrast, Gomez did not raise the constitutionality issue or develop the record below to allow this court to consider it. In this regard, Gomez is in the same position as the defendants in Mondragon, Easterling, Spotts, Thomas, and Ortega-Cadelan. Because Gomez made no effort before the district court to present the issue of whether a Jessica’s Law sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, the issue cannot be raised for the first time on appeal.
The judgment of the district court is affirmed.
Davis, C.J., not participating.
Larson, S.J., assigned. | [
85,
-22,
-33,
63,
56,
97,
59,
88,
67,
-9,
38,
83,
-83,
-50,
0,
122,
-37,
39,
112,
121,
-47,
-73,
119,
-63,
-78,
-13,
-47,
89,
59,
75,
-84,
-99,
12,
-48,
-62,
-11,
102,
-54,
-14,
80,
-114,
7,
-72,
-48,
82,
3,
32,
115,
18,
14,
53,
-97,
-13,
74,
26,
-61,
8,
61,
91,
-83,
88,
-103,
-5,
31,
74,
20,
-94,
33,
-97,
-122,
80,
54,
28,
57,
32,
-24,
115,
38,
22,
-76,
109,
-117,
-12,
102,
98,
1,
44,
-12,
-84,
-127,
-114,
94,
-116,
-89,
-104,
-40,
75,
12,
-108,
-35,
60,
22,
45,
122,
-25,
68,
63,
108,
-124,
-125,
-68,
-127,
-17,
49,
-62,
-87,
-29,
33,
-128,
101,
-50,
-94,
92,
87,
120,
-41,
-34,
-42
] |
The opinion of the court was delivered by
LUCKERT, J.:
This appeal requires us to consider whether an error in fading to consider the alternative nonprison sanctions provided for in K.S.A. 2005 Supp. 21-4603d(g) and K.S.A. 2006 Supp. 21-4603d(g) — placement at Labette Correctional Conservation Camp (Labette), in another conservation camp, or in a community intermediate sanction center (CISC) — is a reversible error when none of those alternatives is available. We conclude the error is harmless and does not require us to vacate the sentence. This question arises because we hold the district court erred in concluding that the alternative nonprison sanctions did not have to be considered under 21-4603d(g) if the crime was committed while the defendant was on felony bond, even if another circumstance under the statute applies. In addition, following well-established precedent, we hold the district court did not err by including a Board of Indigents’ Defense Services (BIDS) application fee in the journal entry of judgment even though it did not consider Bonner’s ability to pay the fee during the sentencing hearing, and the district court did not err in considering Bonner’s criminal history without submitting it to a jury for determination.
FACTS
This is a consolidated appeal arising from sentences imposed in two cases. In both cases, Tabitha L. Bonner committed the crimes while on felony bond.
In one case (No. 05CR553I), Bonner pleaded no contest to two counts of forgeiy in violation of K.S.A. 2005 Supp. 21-3710, severity level 8 felonies. Because she had a criminal history score of E, her convictions fell in block 8-E on the nondrug sentencing guideline grid, which is a presumptive probation grid block. See K.S.A. 2005 Supp. 21-4704.
At sentencing, Bonner requested she be given probation under the supervision of community corrections. The district court denied this request and invoked the special sentencing rule in K.S.A. 2005 Supp. 21-4603d(f), which grants a district court the discretion to sentence a defendant to prison if the crime of conviction is a felony that was committed while the defendant was on felony bond. The district court imposed the standard sentence in the grid block and did not make any findings regarding alternative nonprison sanctions under K.S.A. 2005 Supp. 21-4603d(g). The district court also awarded court costs, restitution, and BIDS attorney fees in an amount to be determined by the BIDS fee schedule. In the journal entry, the district court awarded $460 for BIDS attorney fees and the $100 BIDS administrative fee.
In the second case (No. 08CR395I), Bonner pleaded no contest to attempted possession of cocaine in violation of K.S.A. 2006 Supp. 21-3301 and K.S.A. 2006 Supp. 65-4160, a severity level 4 felony. Even though this conviction was subsequent to the forgeiy convictions, Bonner s criminal history score remained an E. This placed Bonner in a presumptive probation grid block on the sentencing guidelines drug grid. See K.S.A. 2006 Supp. 21-4705.
The sentencing hearing in this case, which was held approximately 1 week after the sentencing hearing in the forgery case, went much the same as the prior hearing. Bonner again requested probation, and the district court again invoked 21-4603d(f), imposed the standard prison sentence in the 4-E grid block, and failed to consider the alternative nonprison sanctions provided for in 21-4603d(g). (K.S.A. 2005 Supp. 21-4603d applied to the forgery crimes, which were committed in 2005. The cocaine offense was committed in 2006, and K.S.A. 2006 Supp. 21-4603d applied. Although 21-4603d was amended in 2005, neither 21-4603d[f] or [g] were amended. L. 2005, ch. 150, sec. 5. In this opinion, we will cite the 2005 supplement when referring to the forgery case and the 2006 supplement when referring to the attempted possession of cocaine case and when analyzing 21-4603d as it applied in both cases).
Further, at the sentencing hearing for the attempted possession of cocaine conviction, the district court awarded attorney fees in an amount to be determined by the BIDS fee schedule. In the journal entry, the district court awarded $525 for BIDS attorney fees and the $100 BIDS administrative fee.
On direct appeal, Bonner argued the district court was required to apply K.S.A. 2006 Supp. 21-4603d(g) and consider alternative nonprison sanctions — Labette, another qualifying conservation camp, or a CISC — before sentencing her to prison, because her convictions fell within presumptive probation grid blocks. Second, Bonner argued the district court erred when it failed during the sentencing hearing to consider her ability to pay the BIDS attorney fees and the BIDS administrative fee. Finally, Bonner argued the district court erred by not having a jury determine her criminal history. In State v. Bonner, No. 98,430, unpublished opinion filed August 1, 2008, the Court of Appeals affirmed in part and vacated in part.
With regard to the forgery convictions, the Court of Appeals recognized that 2005 Supp. K.S.A. 21-4603d(g) requires the district court to consider alternative nonprison sanctions before ordering a dispositional departure from a presumptive nonprison sentence. The Court of Appeals determined this provision was not applicable, however, because the forgeries were committed while Bonner was on felony bond and K.S.A. 2005 Supp. 21-4603d(f) gave the district court the discretion to impose imprisonment and provides “imposition of a prison sentence for the new crime does not constitute a departure.”
Regarding Bonner’s conviction for attempted possession of cocaine, the Court of Appeals observed that K.S.A. 2006 Supp. 21-4603d(g) requires the district court to consider alternative nonpri-son sanctions before imposing a prison sentence when the defendant’s conviction is classified as 4-E on the drug grid and the defendant does not qualify for placement in a drug treatment pro gram under K.S.A. 2006 Supp. 21-4729. The court recognized grid block 4-E applied and that Bonner did not qualify for a drug treatment program because she had a prior felony conviction in Missouri for sale of a controlled substance. Nevertheless, the Court of Appeals determined alternative nonprison sanctions did not need to be considered because Bonner s crime of conviction took place while she was on felony bond. Bonner, slip op. at 2.
Regarding the BIDS attorney fees, the Court of Appeals observed that State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), requires the district court to consider the defendant’s financial resources and to evaluate the burden payment would impose before awarding such fees. See K.S.A. 2006 Supp. 22-4513(b). The State conceded that the district court failed to follow Robinson when awarding the BIDS attorney fees and that Bonner’s cases had to be remanded. The Court of Appeals, therefore, vacated the BIDS attorney fee awards and remanded to the district court for a determination of Bonner’s financial resources in light of Robinson. Bonner, slip op. at 5-6.
As for the BIDS administrative fee ordered in each journal entry of judgment, the Court of Appeals rejected the notion that the district court was required to apply the Robinson analysis at sentencing. The Court of Appeals pointed out that in State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008), this court established that the district court assesses the application fee when a defendant applies for court-appointed counsel and that determining whether the fee would cause manifest hardship is “a minor extension of the analysis which the district court is already performing when assessing eligibility for court-appointed counsel.” 285 Kan. at 853. The Court of Appeals stated that the district court made the required inquiry to assess the BIDS administrative fee in Bonner’s cases. Bonner, slip op. at 6.
Finally, concerning Bonner’s contention that the district court erred by imposing a sentence without first proving her prior convictions to a jury beyond a reasonable doubt, the Court of Appeals cited State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002), and State v. Gonzalez, 282 Kan. 73, 115-18, 145 P.3d 18 (2006), where the same argument was rejected by this court. Bonner, slip op. at 7.
Bonner now petitions this court for review. Because the Court of Appeals ruled in her favor on the issue regarding the BIDS attorney fees, Bonner does not raise that issue in her petition for review. She raises all other issues, however, and we granted review under K.S.A. 22-3602(e).
Standard of Review
The issues Bonner raises require us to interpret various sentencing statutes. Interpretation of a statute is a question of law, and the appellate court’s standard of review is unlimited. State v. Gonzales, 289 Kan. 351, 365, 212 P.3d 215 (2009).
Our rules of statutory interpretation are well known. As we recently stated:
“When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. [Citation omitted.] For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction. [Citation omitted.] If a statute is subject to more than one interpretation, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested. [Citations omitted.]” State v. Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009).
See State v. Ellmaker, 289 Kan. 1132, 1154, 221 P.3d 1105 (2009).
As a general rule, this court strictly construes a criminal statute in favor of the accused, which simply means that the court reads words with their ordinaiy meaning. The court decides any reasonable doubt about a word’s meaning in favor of the accused. State v. Kleypas, 282 Kan. 560, 564, 147 P.3d 1058 (2006). This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible so as to give effect to the legislative design and intent. State v. Bee, 288 Kan. 733, 737, 207 P.3d 244 (2009).
Consideration of Alternative Nonprison Sanctions
First, Bonner contends the district court erred in failing to consider alternative nonprison sanctions before imposing incarceration in each criminal case. She argues that K.S.A. 2006 Supp. 21-4603d(g) requires this placement consideration.
K.S.A. 2006 Supp. 21-4603d(g) identifies five circumstances in which the district court
“shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and amendment thereto or a community intermediate sanction center. Pursuant to this paragraph die defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.” (Emphasis added.)
Our courts have construed the statutory language “shall consider placement” to be mandatory. See, e.g., State v. Wiegand, 275 Kan. 841, 845-46, 69 P.3d 627 (2003); State v. Williams, 34 Kan. App. 2d 837, 838-39, 125 P.3d 578 (2006). The statute requires these alternative sentencing options to be considered in the following five circumstances:
1. “Prior to imposing a dispositional departure for a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid,”
2. “[P]rior to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-H, 5-1 or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H or 3-1 of the sentencing guidelines grid for drug crimes,”
3. “[P]rior to sentencing a defendant to incarceration whose offense is classified in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the requirements of [K.S.A. 21-4729], and amendments thereto,”
4. “[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the requirements of [K.S.A. 21-4729], and amendments thereto, or”
5. “[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid or grid blocks 5-H, 5-1 or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H or 3-1 of the sentencing guidelines grid for drug crimes . . . (Emphasis added.) K.S.A. 2006 Supp. 21-4603d(g).
This court recently determined that the word “or” in subsection (g) is to be read as a disjunctive term rather than a conjunctive term. Bee, 288 Kan. at 741. In other words, a district court must consider an alternative sentencing sanction if any of the five circumstances applies.
In this appeal, two of the circumstances potentially apply — the first and the fourth. Because 21-4603d applies differently in each of Bonner’s criminal cases, we will discuss the forgery convictions separately from the attempted possession of cocaine conviction.
Forgery Case
The two counts of forgery in case No. 05CR553I were level 8 nondrug crimes. With a criminal history score of E, Bonner’s conviction fell into a presumptive probation block on the sentencing guidelines nondrug grid. The plain language of K.S.A. 2005 Supp. 21-4603d(g) requires the district court to consider alternative non-prison sanctions before imposing a dispositional departure for a defendant whose conviction falls into a “nonprison grid block.” Key to this provision’s application is the requirement that a prison sentence must be a dispositional departure.
This was not so in Bonner’s forgery case. Under the facts, prison was not a dispositional departure because the two counts of forgery were committed while Bonner was on felony bond. K.S.A. 2005 Supp. 21-4603d(f) provides:
“When a new felony is committed while the offender is on release for a felony pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, a new sentence may be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” (Emphasis added.)
This provision clearly gives the district court the discretion to impose prison when probation is presumed if an offender commits a new crime while on felony bond. And while the decision is dis cretionary, if the court chooses to impose a prison sentence for the new crime, the sentence “does not constitute a departure.” This is exactly what occurred in Bonner s forgery case. Moreover, no other circumstance identified in K.S.A. 2005 Supp. 21-4603d(f) applies. Consequently, the absence of a dispositional departure means that the alternative nonprison sanction provision of K.S.A. 2005 Supp. 21-4603d(g) does not apply.
Thus, the district court did not err in failing to consider alternative nonprison sanctions in Bonner’s forgery case, and we agree with the Court of Appeals’ reasoning on this point.
Attempted. Possession of Cocaine Case
The one count of attempted possession of cocaine in case No. 06CR395I was a severity level 4 drug crime. With Bonner’s criminal histoiy score of E, Bonner’s conviction fell into a presumptive probation block on the sentencing guidelines drug grid. Because the crime was committed while Bonner was on felony bond, the district court had authority pursuant to K.S.A. 2006 Supp. 21-4603d(f) to order imprisonment without implementing a departure.
Nevertheless, a different circumstance identified in K.S.A. 2006 Supp. 21-4603d(g) — -the fourth circumstance listed above — applies. Bonner’s attempted possession of cocaine conviction was classified in the 4-E drug grid, and one of the circumstances listed in K.S.A. 2006 Supp. 21-4603d(g) requires consideration of alternative nonprison sanctions prior to sentencing for a defendant whose “offense is classified in grid blocks 4-E or 4-F ... and whose offense does not meet the requirements of [K.S.A. 21-4729].” In turn, K.S.A. 2006 Supp. 21-4729(a)(l) requires placement in a certified drug treatment program if the “offense is classified in grid blocks 4-E, 4-F, 4-G, 4-H or 4-1 of the sentencing guidelines grid for drug crimes” and the defendant “has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, and amendments thereto or any substantially similar offense from another jurisdiction.” It is undisputed that Bonner had a prior felony conviction in Missouri for sale of a controlled substance, which is the statutory equivalent of 65-4161. Consequently, Bonner’s of fense did not meet the requirements of K.S.A. 2006 Supp. 21-4729, and her offense was classified in grid block 4-E. As a result, tire fourth circumstance listed in K.S.A. 2006 Supp. 21-4603d(g) applies.
The Court of Appeals recognized the applicability of this circumstance but concluded that because the sentence was not a dispo-sitional departure, the alternative sentencing did not apply. In other words, the Court of Appeals failed to read the “or” in the statute as a disjunctive term and, therefore, erroneously held that alternative nonprison sanctions did not have to be considered by the district court if tire first — the dispositional departure — circumstance did not apply.
This application of the statute is contrary to the clear language of the provision. See Bee, 288 Kan. at 741. The word “or” indicates the alternative nonprison sanctions must be considered if there is a dispositional departure or if the offense is classified in grid blocks 4-E or 4-F and does not meet the requirements of K.S.A. 2006 Supp. 21-4729. Under the latter circumstance, there is no mention of the special rule under K.S.A. 2006 Supp. 21-4603d(f) where a new felony is committed while the offender is on felony bond, and there is no requirement that the imposition of a prison sanction be a dispositional departure. Hence, we conclude the fourth circumstance listed in K.S.A. 2006 Supp. 21-4603d(g) — relating to drug treatment — requires consideration of alternative nonprison sanctions, notwithstanding the fact that the crime was committed while the offender was on felony bond.
This conclusion is bolstered by the fact that K.S.A. 2006 Supp. 21-4603d(f) does not mandate a prison sentence when a defendant commits a new crime while on felony bond; it merely gives the district court the discretion to impose a prison sentence. If incarceration were mandated, it would be inconsistent to conclude that the legislature intended the consideration of alternative nonprison sanctions. See Bee, 288 Kan. 733, Syl. ¶ 7 (“An offender sentenced pursuant to K.S.A. 21-4729 who fails to participate in a drug treatment program is subject to immediate imposition of the underlying prison sentence once the district court has made the finding required by K.S.A. 21-4603d[n] of a pattern of intentional conduct demonstrating the offender’s refusal to comply with or participate in treatment. Consideration of placement in [Labette] or other nonprison sanctions under K.S.A. 21-4603d[g] is not required.”).
The Court of Appeals erred in applying the identical rationale to both the forgery case and the attempted possession of cocaine case. The district court should have considered alternative non-prison sanctions with respect to Bonner s conviction for attempted possession of cocaine.
Disposition
Nevertheless, this error does not necessarily require reversal. See Wiegand, 275 Kan. at 846-47.
In Wiegand, the district court considered a placement at a conservation camp but did not consider placement at a CISC. We held that consideration of both alternatives was required by the following sentence in K.S.A. 2002 Supp. 21-4603d(g):
“Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.”
Despite the error resulting from the district court’s failure to consider both alternatives, we did not vacate the sentence because the error was of no practical consequence. In reaching this conclusion, we took judicial notice pursuant to K.S.A. 60-409(b)(4) of a Department of Corrections “Notice Concerning Community Intermediate Sanction Centers” that stated in part:
“ ‘A community intermediate sanction center was never opened pursuant to [K.S.A. 2000 Supp. 21-4603d] and there are no community intermediate sanction centers within the meaning of K.S.A. 2000 Supp. 21-4603d (nor any of its preceding versions) operating at this time in the State of Kansas. Therefore, there is neither space available nor placement criteria for community intermediate sanction centers for purposes of potential sentencing dispositions pursuant to K.S.A. 2000 Supp. 21-4603d.’ 22 Kan. Reg. 835 (2003).” Wiegand, 275 Kan. at 847.
Although there was not a CISC in existence, we noted that placement at Labette was an available alternative. Consequently, we held a “sentencing court shall consider placement at Labette. If, in the future, a CISC or other conservation camp is established, information must be presented to the court regarding the placement option.” Wiegand, 275 Kan. at 847. As applied in that case, we concluded the district court’s failure to consider the nonexistent CISC alternatives did not require us to vacate the sentence.
Applying Wiegand to this case, no CISC alternatives were presented at sentencing. Regardless, under Wiegand the district court was required to consider placement at Labette.
Circumstances have since changed, however. On June 25, 2009, the Department of Corrections issued a “Notice Concerning Cessation of Operations of Labette Correctional Conservation Camps and Suspension of Intensive Substance Abuse Treatment Programming in Kansas Department of Corrections Facilities.” 28 Kan. Reg. 1026 (2009). The notice stated in part:
“In regard to the former subject of this Notice, due to lack of appropriated funding for its operation in Fiscal Year 2010, the Labette Community Correctional Conservation Camp for males (more commonly known as the ‘Labette County male boot camp’) shall cease to operate as of June 30,2009. It shall not thenceforth be available in practice as a sentencing disposition for male offenders who are subject to possible placement therein by sentencing courts pursuant to K.S.A. 21-4603d(a)(5) or (g).
“This Notice will further serve to confirm that placement of offenders in the Labette Correctional Conservation Camp for females (more commonly known as the ‘Labette County female boot camp’) has already been effectively curtailed in Fiscal Year 2009 due to a budgetary rescission, and likewise, that said facility did not receive appropriate funding for operation in Fiscal Year 2010, and will therefore also not be available in practice as a sentencing disposition for female offenders.
“This Notice is provided for the guidance of Kansas courts, prosecutors, members of the defense bar, and the public in regard to making appropriate alternative sentencing dispositions for those offenders subject to the provisions of K.S.A. 21-4603d(a) & (g), K.S.A. 2008 Supp. 21-4704(p), and 21-4705(1), as amended.” 28 Kan. Reg. at 1026-27 (2009).
In light of this notice, before oral arguments in this case we issued an order the purpose of which was to “afford the parties reasonable opportunity to present information relevant to the propriety of taking” judicial notice that Labette had closed. K.S.A. 60- 412(d) (judicial notice in proceedings subsequent to trial); see K.S.A. 60-409. At oral argument, the parties agreed it was appropriate to take judicial notice of the Department of Corrections’ announcement.
Hence, even though K.S.A. 2006 Supp. 21-4603d(g) imposes an obligation to consider Labette, implementation of a Labette placement is impossible. As a result, if we were to vacate the sentence and remand for a new sentencing, all the sentencing court could do is consider the fact that Labette is closed. Bonner’s requested remedy has been rendered moot, and a remand would be futile. See State v. Johnson, 42 Kan. App. 2d 356, 359, 211 P.3d 861 (2009) (remand for consideration of Labette would be useless formality); State v. Lewellyn, No. 100,640, unpublished opinion filed September 18, 2009 (despite failure, under K.S.A. 21-4603d[g], to consider on the record Labette or any other conservation camp or community intermediate sanction center, “no purpose would be served by remanding the case” because “that option no longer exists”); State v. Everett-Powell, No. 100,254, unpublished opinion filed August 28, 2009 (same; dealing with female defendant).
Simply put, a failure to comply with 21-4603d(g) is not reversible error if none of the alternative nonprison sanctions listed in the statute is available. Consequently, we conclude the error in failing to consider placement at Labette does not require us to vacate the sentence in case No. 08CR395I or to remand for resentencing.
BIDS Application Fee
Next, we consider Bonner’s complaint that the journal entry of judgment in each case required her to pay the $100 BIDS application fee when the court had not orally announced the fee at the sentencing hearing or considered at sentencing the financial burden of the fee. Bonner acknowledges that she did not raise any objections regarding the BIDS application fee before the district court.
The application fee is provided for in K.S.A. 22-4529, which states in relevant part:
“Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall pay an application fee in the amount of . . . $100 ... to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of tire application fee.”
This court has recently rejected similar claims pertaining to the BIDS application fee. As the Court of Appeals noted, in Hawkins this court established that the district court assesses the application fee when a defendant applies for court-appointed counsel and that determining whether the fee would cause manifest hardship is “a minor extension of the analysis which the district court is already performing when assessing eligibility for court-appointed counsel.” Hawkins, 285 Kan. at 853. Then, in State v. Scaife, 286 Kan. 614, 625-26, 186 P.3d 755 (2008), this court held that because a defendant incurs the obligation to pay the BIDS application fee when the application is completed, an order in a journal entry of sentencing to pay an unpaid application fee — even if not pronounced from the bench — is not improper. See State v. Andelt, 289 Kan. 763, 775, 217 P.3d 976 (2009) (approving the application of the rationale in Scaife).
More recently, this court held that an order to pay an application fee is merely an imposition of costs and is neither punitive nor part of a sentence. Because the defendant’s ability to pay the fee is considered at the time the defendant submits an application for appointed counsel, the district court is not required to make further findings at sentencing to validate the assessment of the application fee. State v. Phillips, 289 Kan. 28, Syl. ¶¶ 4, 8, 210 P.3d 93 (2009); see Hawkins, 285 Kan. 842, Syl. ¶ 7 (once application fee is initially assessed, if any part of the application fee remains unpaid at the time of sentencing, the district court may include any unpaid fee in its sentencing order without making any additional findings); see also State v. Casady, 289 Kan. 150, 157, 210 P.3d 113 (2009) (determining constitutional right to counsel was safeguarded because K.S.A. 22-4529 allows waiver of fee in cases of manifest hardship or if defendant is acquitted or case is dismissed).
In these cases, we reiterated that the district court should determine the propriety of imposing the application fee at the time of the initial determination to appoint counsel. Further, this de termination does not require any subsequent findings by the district court at sentencing. E.g., Phillips, 289 Kan. at 37-38.
Here, in neither case did Bonner ever raise the issue of her ability to pay before the district court, and there is nothing in the record indicating that the district court failed to comply with K.S.A. 22-4529 in assessing Bonner s BIDS application fee.
The Court of Appeals correctly affirmed the BIDS application fee.
Appbendi Issue
Finally, Bonner contends that her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), were violated because her criminal history was not proven to a jury beyond a reasonable doubt.
This court has repeatedly rejected this claim as controlled by State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). See, e.g., State v. Raschke, 289 Kan. 911, 912, 219 P.3d 481 (2009); Gonzales, 289 Kan. at 372. Bonner’s contention has no merit.
The decisions of the Court of Appeals and the district court are affirmed on all issues that are subject to our review, which did not include the Court of Appeals order vacating the imposition of BIDS attorney fees in both cases. | [
-48,
-20,
-39,
-34,
15,
97,
11,
0,
83,
-33,
-13,
83,
-23,
-33,
-112,
123,
-65,
93,
97,
105,
-47,
-73,
55,
-63,
-10,
-5,
66,
-43,
-67,
111,
116,
-107,
74,
-48,
-126,
85,
102,
-118,
117,
-36,
-114,
7,
-104,
81,
73,
67,
48,
111,
24,
-114,
33,
-98,
-77,
43,
18,
-50,
40,
44,
11,
109,
-56,
-111,
-77,
15,
107,
20,
-95,
5,
-100,
4,
-36,
38,
-100,
57,
0,
-24,
115,
22,
-126,
116,
47,
59,
-27,
98,
98,
1,
20,
-49,
-87,
-120,
14,
31,
13,
-26,
-100,
88,
107,
45,
-106,
-67,
84,
54,
38,
110,
-26,
-124,
31,
-4,
-125,
-38,
-16,
-109,
77,
117,
-92,
-87,
-5,
37,
-79,
97,
-50,
-32,
92,
-10,
112,
-33,
-18,
-65
] |
Per Curiam-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Paul P. Hasty, Jr., of Overland Park, an attorney admitted to the practice of law in Kansas in 1976 and in Missouri in 1985.
On July 16, 2007, the respondent reported himself to the Missouri disciplinary authorities regarding his representation in a case. On August 9, 2007, counsel for respondent forwarded the same report to the Disciplinary Administrator in Kansas. After investigation, the Missouri Disciplinary Hearing Panel concluded that respondent violated Missouri Rules of Professional Conduct. The Missouri Supreme Court reprimanded respondent on November 13,2008, as a result of the violations. On March 12,2009, the office of the Disciplinary Administrator in Kansas filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer to the formal complaint on March 26, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 2, 2009, where the respondent appeared in person and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence) and 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On July 16, 2007, the Respondent reported himself to the Missouri disciplinary authorities for his action related to his representation of Allstate Insurance Company in Deer v. Aldridge. Later, on August 9, 2007, an attorney representing the Respondent forwarded the letter to the Disciplinary Administrator’s office. The Respondent’s letter to the Missouri disciplinary authorities provided as follows:
T was retained by Allstate Insurance Company with regard to a matter that Allstate had litigated in Greene County, Missouri, Deer v. Aldridge. Judgment had been entered on the case at the time I was retained and the issue was whether Allstate’s claim file should be made available to a party requesting the file. I gave Allstate my opinion with regard to the matter and the issue of production of the file was addressed. My file was then closed. With the closing of the file, it was sent to the storage facility that we use for closed files.
‘Some time later, suit was filed against Allstate. The file was retrieved from storage and re-opened. Apparently, it was later sent back to the storage facility. It was misplaced.
Written discovery was received on this case, and was either held by the file clerk or routed to the closed file in storage and there was not a timely response. We later discovered that the file was missing. It was located as a closed file. I set about responding to discovery, including objections. The objections were untimely because of the delay. They actually crossed in the mail with discovery motions which arrived while I was on vacation. The Court granted the discovery motions. The Court overruled my request to object out of time.
‘Additional discovery was served, and there was deposition testimony taken. As a result of the deposition testimony, it was my belief that the case would settle. I did not take steps to respond to the additional discovery and it was not sent to Allstate. I also did not keep Allstate advised concerning the motions filed with regard to the discovery or the Court’s orders.
‘It became apparent that the case was not going to settle. I advised Allstate of the discovery issues and the problems that had been created. Allstate has retained substitute counsel and I have withdrawn from tire case, and I understand Allstate is taking steps to ask the Court to set aside its orders with regard to discovery because Allstate did not know that the Court had entered orders. My withdrawal was forwarded to the Court today.
T am sending this report to you because it is my understanding that it is my obligation to report that I did not properly attend to this file for this client and did not keep the client timely advised of events.’
“3. On March 14, 2008, a Missouri disciplinary committee filed Information against the Respondent. Thereafter, the Respondent and the Missouri disciplinary authorities entered into a factual stipulation. The stipulation provides, in pertinent part, as follows:
‘Dale Deer and Terri Deer filed a lawsuit in Johnson County, Missouri as a result of a motor vehicle accident which occurred September 15, 2000. The Deer’s [sic] sued Paul Jason Aldridge for injuries which were sustained by Dale Deer as a result of that accident. That case was Case Number CV402-9CC.
Trior to the filing of that lawsuit Dale Deer and Terri Deer had offered to settle their claims against Mr. Aldridge for the sum of $24,000.00. Mr. Aldridge was insured by the Allstate Insurance Company and $40,000.00 was the limit of his applicable insurance. Allstate Insurance Company did not setde the claim and the lawsuit was filed. In that lawsuit Plaintiffs were represented by attorney Andrew J. Gelbach and defendant Aldridge was represented by Richard Modin. On January 11, 2005, pursuant to a contract to limit recovery given pursuant to § 537.065 R.S.Mo. a judgment was entered in favor of Plaintiffs and against Defendant Aldridge in the sum of $750,000.00 plus prejudgment interest of $257,802.53. The contract to limit recovery limited [the] Deer[s] to the applicable insurance coverage and any other additional sums that might be recoverable from Allstate Insurance Company as a result of Allstate’s handling of the claim. That agreement included an assignment of the bad faith claim.
‘On February 10, 2005, Respondent was hired by Allstate to advise Allstate concerning a request that was made by Plaintiff s attorney, Mr. Gelbach, for Allstate’s claim file. Respondent advised Allstate that they needed to produce the claim file including the electronic portion of the file. Respondent’s last contact with Allstate was on March 13, 2005. At some point thereafter the file was closed in the Wallace Saunders office and the file was sent to storage off site.
‘On August 26, 2006, an equitable garnishment action was filed in Jackson County in Case Number 0516-CV24031. In that equitable garnishment [the] Deer[s] sought to enforce their judgment for slightly more than $1 million dollars against Defendant Paul Jason Aldridge and Allstate Insurance Company. On October 24, 2005, Respondent was hired by Allstate to defend that equitable garnishment action. The file at Wallace Saunders was returned from storage and on October 25, 2005, an answer was filed to the equitable garnishment. From that time until September of 2006 there was no activity in the case.
‘On September 22, 2006, Defendant Aldridge filed a cross-claim against Defendant Allstate Insurance Company alleging bad faith, negligent claims handling, breach of fiduciary duty and seeking punitive damages. Also on that date Plaintiffs Deer filed their first interrogatories directed to Allstate. On October 30, 2006, Aldridge sent first interrogatories and first request for production to Allstate.
‘Sometime between October 25, 2005, when the answer was filed to the equitable garnishment action and September 22, 2006, the file at Wallace Saunders was inadvertently returned to storage. This caused pleadings and discovery requests from [the] Deer[s] and Aldridge of September and October 2006 to be routed to the closed file box for filing rather than being forwarded to Respondent for his review and response. The file was located in storage approximately on the first of February 2007. At that time the cross-claim of Aldridge against Allstate which was filed on September 22, 2006, the first interrogatories and first request for production of documents which had been filed October 30, 2006, and the second interrogatories and second request for production of documents from Aldridge to Allstate filed on January 8, 2007 were located. Once die file was found Respondent prepared an answer for Allstate to the cross-claim which was filed on February 6, 2007. Respondent prepared objections to the discovery from Aldridge to Allstate which was filed February 7, 2007. On February 12, 2007, Respondent wrote to Allstate concerning the interrogatories and requests for production and forwarded to Allstate the discovery requests including the request for the so called McKinsey documents which were contained in Aldridge’s second interrogatories to Allstate and Aldridge’s second request for production to Allstate.
‘On February 13, 2007, Mr. Hasty went on vacation and did not return until February 22, 2007. On the day that Mr. Hasty left for vacation, [the] Deer[s] filed a motion for enforcement of discovery and cross-claimant Aldridge filed a motion for enforcement of discovery or sanctions. Allstate’s objections to discovery were filed the same day that the motions for enforcement were filed. These objections were filed out of time due to the files having been, in effect, lost.
‘Respondent did not advise Allstate that the file had been lost or that timely objections to discovery had not been made.
‘On February 16, 2007, Respondent received an email from Marilyn Bok-enkroger at Allstate which was directed to Steve Jurgensen with copies to Richard Vavra, Fredericka Reed, and Respondent. In that email Marilyn Bok-enkroger states “I am requesting direction from FTE Steve Jurgensen on your question involving the second and third request for production and the second interrogatories, which are as follows: These discovery requests referenced in the Bokenkroger email are those dealing with McKinsey documents.
‘On February 27, 2007, the court sustained the motions to compel and Allstate was granted ten (10) days to respond. Also on February 27, 2007, the court ordered Allstate to make its answer more definite and certain. Allstate was given ten (10) days to do that. When Respondent learned that the orders for enforcement of discovery and sustaining the motion to make more definite and certain had been entered he contacted the court, advised the court that the file had been lost and that he had been on vacation and requested additional time. The request for relief was denied.
‘On March 6, 2007, the deposition of Mary Green was taken by counsel for Plaintiffs and Aldridge. Mary Green was the claims handler who had made the decision not to pay the $40,000.00 demand in the case. After her deposition Respondent was of the opinion that there was no defense to the bad faith claim. On March 9, 2007, Respondent had a telephone conference with All state representatives including Marilyn Bokenkroger and Richard Vavra. In that telephone conversation it was agreed that there was no defense to the claim and that the underlying million dollar judgment should be paid which in Respondent’s opinion would have made moot the issues in the equitable garnishment and bad faith claim.
‘On March 15, 2007, Respondent called Richard Vavra asking him when he could expect being given the authority to actually pay the underlying judgment. On March 13, 2007, Respondent filed a motion on behalf of Allstate to extend time to respond to the motion to enforce discovery and that motion was sustained granting an extension until March 16, 2007.
‘On March 19, 2007, Respondent prepared and filed a motion on behalf of Allstate to allow objections to the first interrogatories and first request for production out of time due to the file having been lost. On April 2, 2007, the court entered an order denying Allstate’s motion to allow the objections out of time. Respondent did not advise Allstate that he had filed the motion nor did he advise Allstate that the motion had been denied.
‘On May 1, 2007, the court entered an order striking Allstate’s pleadings for failure to respond to discovery. Respondent did not advise Allstate of the fact that their pleadings had been stricken. On July 2,2007, the court held a hearing on the Deer motion for sanctions and for Aldridge’s motion for sanctions and for contempt. Respondent did not advise Allstate of the motions or of the hearing.
‘On July 2, 2007, prior to the hearing Respondent received a telephone call from Allstate advising him to make an offer to Plaintiffs and to Aldridge of $500,000.00. From the date of February 16,2007, the date of the Bokenkroger email, until July 2,2007, Respondent had received no instructions from Allstate in regard to the so called McKinsey documents except that they were quite voluminous and numbered about 18,000 pages. Respondent never saw die documents and was not aware of their contents.
‘On July 2, 2007, in die hearing before Judge Manners, Respondent was asked by Judge Manners why Respondent had not filed a response to the motion for contempt or to the motion for additional sanctions. Respondent stated to the court, “Judge there is a lot of discovery here. I am close to having responses to almost all of it, but every one of these things has something that has been very difficult to answer. I keep drinking we are going to have the last pieces of information available and it hasn’t happened, and I just haven’t responded. And for that reason I thought I would be able to respond to this shortly. I know we are out of time. There is [sic] a few things on each of these items that are very difficult. And there is [sic] really our status.”
‘At die time that Respondent made that statement to the court he had been advised by Allstate tiiat the underlying judgment would be paid. He received authority to pay $500,000.00 of that amount on the date of the hearing. He had not received any instructions as to the McKinsey documents. Respondent was prepared to produce a substantial number of documents and did in fact produce 15,168 documents. At the time Respondent appeared before Judge Manners he was unable to produce the McKinsey documents and he was unable to produce documents relating to the claims that had been made against Allstate for bad faith. Respondent advised the court that the McKinsey material he understood to be approximately 18,000 documents. At the hearing Judge Manners found Allstate to be in contempt and gave Allstate until July 6, 2007, to provide the materials sought and ordered a fine of $10,000.00 per day against Allstate to commence on July 6, 2007.
‘On July 6, 2007, Respondent advised Allstate of the order of contempt. Respondent communicated that to Richard Vavra at Allstate. Mr. Vavra then advised Respondent to send his file to Mr. Ron Getchey an attorney in California and to do that immediately. Respondent at that time was out of town in trial and he advised his secretary to send the file to Allstate. The file was sent immediately. Wallace Saunders did not make a copy of the file. At no time during the period from January 1, 2007 to July 6, 2007, did Respondent ever advise the members of Wallace Saunders of the lost file or of the failure of Respondent to advise Allstate of the status of the case.
‘From March 9, 2007 until July 2, 2007, Respondent believed that Allstate was going to pay the underlying judgment plus interest and make the matter moot. Respondent did not believe until July 2, 2007, that Allstate would have to ever respond to the various discovery requests propounded by Deer and Aldridge.
‘Respondent was contacted by attorney Ron Getchey and asked to prepare an affidavit. Respondent prepared an affidavit which was then redrafted by Mr. Getchey. Respondent then signed the affidavit prepared by Mr. Getchey.
‘Allstate sought relief from the court’s order of contempt and the $10,000.00 per day penalty. On August 3, 2007, a hearing was held before Judge Manners. At that hearing Allstate invoked the attorney-client privilege and Respondent was limited in his response because of the assertion of the privilege. Respondent was not able to advise the court that a decision had been made on March 9, 2007, to pay the' underlying judgment and he was not permitted to advise the court of the fact that he was extended authority of $500,000.00 on July 2, 2007. On July 16,2007, Respondent self reported his failure to advise his client.
‘At the hearing before Judge Manners on August 3, 2007, Respondent testified that he never sent the orders compelling production of documents to Allstate. Respondent advised the court that he thought he sent the production request to Allstate that went with the objections in February and that he did not think Allstate received any of the discovery requests after mid-February. At the time of the hearing in August on August 3, 2007, Respondent thought the McKinsey request came in after mid-February of 2007. At the hearing Respondent did not have access to the file. Respondent has now reviewed the file and knows that the requests for production and interrogatories dealing with the McKinsey documents were in fact sent to Allstate which is confirmed by the Rokenkroger email.
‘After the hearing on August 2, 2007, Judge Manners vacated his previous order and gave Allstate thirty days in which to produce the documents. He set a penalty of $25,000.00 per day for every day after thirty days Allstate did not produce the documents. Allstate continued to refuse to produce the documents until April of 2008 when Allstate was required to produce the same documents in Florida to the Commissioner of Insurance.
‘On October 10, 2007, Allstate paid the judgment of Plaintiffs Deer plus interest. Allstate made a claim against Respondent and Wallace Saunders and tiróse claims together with claims of Aldridge for bad faith, negligent claims handling, breach of fiduciary duty and for punitive damages were recently settled for a confidential amount.’
“4. The Missouri Disciplinary Hearing Panel accepted the parties’ stipulation and concluded that the Respondent violated Missouri Rules of Professional Conduct (MRPC) 4-1.3 and 4-1.4(a). The Missouri Supreme Court accepted the decision of the Disciplinary Hearing Panel and concluded that the Respondent violated MRPC 4-1.3 and MRPC 4-1.4. As a result of the violations, on November 13, 2008, the Missouri Supreme Court reprimanded the Respondent.
“5. On March 12, 2009, the Disciplinary Administrator filed a Formal Complaint in the instant case. The Respondent filed a timely Answer. Later, on April 22, 2009, the Respondent provided an Affidavit admitting die misconduct. The Respondent and the Disciplinary Administrator also entered into a Stipulation of Facts.
“CONCLUSIONS OF LAW
“1. Based upon the Respondent’s stipulation, the findings of the Missouri Supreme Court, and the above findings of fact, the Hearing Panel concludes as a matter of law, pursuant to Kan. Sup. Ct. R. 202, that tíre Respondent violated KRPC 1.3 and KRPC 1.4, as detailed below.
“2. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ The Missouri Supreme Court found the facts as detailed above in ¶ 3 and, as a result, concluded that the Respondent violated its rules regarding diligence and communication.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent Allstate when he did not timely object or respond to the requests for discovery. Recause the Respondent failed to act with reasonable diligence and promptness in representing his client, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter . . . .’ In this case, the Respondent violated KRPC 1.4(a) when he failed to advise Allstate that the file had been lost, when he failed to advise Allstate that he did not timely object to or respond to discovery, when he failed to advise Allstate that he filed a motion, when he failed to advise Allstate that the motion had been denied, when he failed to advise Allstate a motion had been filed to strike their pleadings, and when he failed to advise Allstate that their pleadings were stricken. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide diligent representation and adequate communication.
“Mental State. The Respondent negligently and knowingly violated his duty. The Respondent negligently failed to diligently represent Allstate. The Respondent knowingly failed to properly keep Allstate advised as to the current status of the case.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused potential harm to Allstate.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. In 2002 and again in 2007, the Respondent participated in the Attorney Diversion Program. In the 2002 case, the Respondent violated KRPC 3.3 and KRPC 3.4 by failing to comply with discovery orders and failing to deal with the Court with candor. In the 2007 case, the Respondent violated KRPC 1.7 by continuing to represent a client when a partner in the Respondent’s law firm was representing the plaintiff in a law suit adverse to the Respondent’s client.
“Selfish Motive. The Respondent’s misconduct in this case was motivated by selfishness. The Respondent testified that he did not keep Allstate advised regarding the case because ‘he did not want to take the heat’ and what happened was ‘embarrassing.’
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when, for a period of approximately 6 months, the Respondent failed to diligently respond to discovery requests and failed to properly advise his client of the status of the case.
“Multiple Offenses. The Respondent violated KRPC 1.3 and KRPC 1.4. As a result, the Respondent committed multiple offenses.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in the state of Kansas in 1976. At the time of the misconduct, the Respondent had been practicing law for more than 30 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent fully cooperated in the investigation and the hearing process. The Respondent’s attitude during the disciplinary proceedings was one of cooperation and full acknowledgment of the transgressions.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys the respect of his peers as evidenced by several letters received by the Hearing Panel.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injuiy to a client; or
(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injuiy to a client.
‘4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injuiy to a client.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be censured and that the censure be published in the Kansas Reports. The Respondent recommended that he be informally admonished.
“An informal admonition is insufficient based upon the seriousness of the misconduct. For a period of approximately six months, the Respondent failed to properly inform his client regarding the status of the case. The Respondent’s misconduct led to the Court’s order sanctioning the Respondent’s client $10,000 per day. While Allstate was not required to pay that sanction, there was serious potential injury.
“Based upon the ABA Standards, it appears that -the Hearing Panel should consider whether to suspend the Respondent or to censure the Respondent.
“In this case, the Missouri disciplinary authorities received the same evidence and determined that a reprimand was appropriate. The Missouri reprimand is the same as a Kansas published censure. While the decision of the Missouri Supreme Court is in no way binding on the Hearing Panel or the Kansas Supreme Couit, the decision certainly can be considered. Further, the Disciplinary Administrator recommended that the Respondent be censured. Despite the serious nature of the misconduct, published censure is appropriate because the Respondent has taken steps to ensure that he will not repeat this misconduct. The Respondent has a system in place to review documents that are not immediately matched up with a file. Additionally, published censure is appropriate given the compelling mitigating factors.
“Rased upon the Respondent’s stipulations, the Disciplinary Administrator’s recommendation, the above findings of fact, the conclusions of law, the factors in mitigation, and the ABA Standards, as well as the decision of the Missouri Supreme Court, and the Respondent’s remedial conduct, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in tire Kansas Reports.
“Costs are assessed against the Respondent in an amount to be certified by the office of tire Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent filed no exceptions to the panel’s final hearing report. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). Upon our review of the entire record we conclude that the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions, which establish the misconduct of respondent by clear and convincing evidence. See In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. at 725); see also Supreme Court Rule 211(f).
With respect to the discipline to be imposed, the panel’s recommendation of published censure is advisory only and shall not prevent the court from imposing a different discipline. In re Cline, 289 Kan. 834, 846, 217 P.3d 455 (2009); Supreme Court Rule 212(f). Under the ABA guidelines, either suspension or reprimand would be appropriate sanctions. A minority of the court supports suspension because of the serious nature of the offense, the fact respondent has had two prior complaints (albeit handled through diversion), and respondent’s lengthy delay in fully informing his client of the misplaced discovery and the possible sanctions. Nevertheless, a majority of the court determines that the recommendations of the Disciplinary Administrator and the panel are appropriate. .
Conclusion and Discipline
It Is Therefore Ordered that Paul P. Hasty, Jr., be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to the respondent.
Davis, C.J., not participating.
John E. Sanders, District Judge, assigned. | [
-80,
-22,
-39,
77,
-120,
97,
48,
42,
57,
-77,
119,
83,
-19,
-54,
-119,
61,
-5,
43,
-64,
123,
-41,
-74,
123,
64,
102,
-1,
-8,
-60,
-72,
95,
-20,
-36,
89,
56,
-118,
87,
-122,
-54,
-123,
-36,
-94,
6,
-117,
-32,
89,
-63,
40,
45,
18,
11,
17,
-65,
-29,
46,
25,
67,
8,
108,
-2,
-83,
-64,
-47,
-21,
5,
123,
2,
-95,
-108,
-104,
7,
84,
43,
-104,
57,
43,
-23,
114,
-90,
-98,
100,
47,
-119,
9,
38,
98,
35,
-111,
-121,
-84,
-120,
47,
124,
15,
-90,
-111,
73,
35,
14,
-106,
-99,
117,
22,
7,
-4,
-24,
5,
29,
40,
3,
-54,
-112,
-77,
15,
-28,
-100,
-117,
-17,
-123,
36,
81,
3,
-26,
94,
-41,
114,
27,
-114,
-95
] |
The opinion of the court was delivered by
JOHNSON, J.:
Chad Patrick McMullen appeals his convictions and sentences for two counts of aggravated indecent liberties with a child under age 14. McMullen challenges the admissibility of the child victim’s videotaped statement, the voluntariness of his confession, and the legality of imposing consecutive hard 25 prison terms. The appeal comes directly to this court pursuant to K.S.A. 22-3601(b)(l). We affirm the convictions and sentences.
Factual and Procedural Overview
The victim in this case was J.J., a 5-year-old boy who is the nephew of McMullen’s sister-in-law. The incident occurred in the sister-in-law’s basement, where McMullen was living at the time. J.J.’s mother discovered the boy on McMullen’s bed with his pants down around his ankles and McMullen in another area of the basement. In response to the mother’s inquiry, McMullen explained that he was looking for a toy in another room of the basement, while J.J. jumped on the waterbed. The next day, the mother reported the incident to the police.
Helen Swan at the Prairie Advocacy Center conducted a safe-talk interview with J.J., which was videotaped. J.J.’s mother testified that, during the interview, J.J. reported that McMullen had touched his “pee-pee” with his mouth and made J.J. put his hand on McMullen’s “pee-pee.” The videotape was introduced into evidence at trial over McMullen’s objection.
While investigating the basement incident, Detective Kent Biggs contacted McMullen at his place of employment. Initially, Biggs told McMullen that he wanted to get some information about a previously reported robbery. McMullen agreed to meet Biggs at the police station after he finished closing die store. When Mc-Mullen arrived at the station at approximately 12:35 a.m., the detective explained that he actually wanted to discuss the incident with J.J. After being advised of his Miranda rights, McMullen initially denied having any physical contact with J.J. However, McMullen then asked Biggs “hypothetically” what would happen if he altered his version of the events to be more in line with J.J.’s version. Detective Biggs explained that McMullen would not be arrested that evening and that his statement would be forwarded to the district attorney who would decide how to proceed. The detective denied making any specific promises in exchange for McMullen’s statement.
After discussing his hypothetical question with the detective, McMullen confessed that he pulled down J.J.’s pants and fondled J.J.’s penis for 2 to 5 minutes and that he asked J.J. to touch his penis, which J.J. declined to do. McMullen completed a written statement to that effect and was allowed to leave the station at approximately 2 a.m.
Before trial, the State filed a motion for a Jackson v. Denno hearing to establish the voluntariness and admissibility of Mc-Mullen’s written statement. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). The district court ruled in favor of the State, albeit the transcript of that hearing does not appear in the record on appeal. Ultimately, the trial court allowed Detective Biggs to read McMullen’s written statement to the jury over McMullen’s objection.
J.J. testified in person at trial but was reluctant to discuss the incident. He said that he would be too embarrassed to talk about it if he had been touched in that way. When asked on direct examination whether McMullen or anyone else touched him on the “pee-pee” that day, J.J. responded by moving his head from side to side. However, J.J. responded in the affirmative to questions about whether his pants were down while McMullen was in the room; whether McMullen was the one who pulled his pants down; and whether McMullen had his own clothes off. J.J. also identified via picture comparison that when the incident occurred he could see McMullen’s genitals.
During Helen Swan’s testimony, J.J.’s videotaped statement was played for the trial jury, over McMullen’s objection that the video was “repetitive and cumulative.” However, neither the videotape nor a transcript of its content appears in the record on appeal.
Ultimately, McMullen was convicted by the jury of two counts of aggravated indecent liberties with a child. His motion for a new trial, based upon the admission of his written confession and J.J.’s videotaped testimony, was denied. The district court denied McMullen’s motion for a departure and sentenced him to two consecutive hard 25 life sentences.
Admissibility of Confession
First, McMullen challenges the voluntariness of his confession. He claims that his mental condition at the time of the interrogation was one of exhaustion and confusion; that the manner of the interrogation involved subtle deception; and that while the interrogation was not necessarily lengthy, he had come from a long day’s work, late at night, under the misapprehension that he was going to be interviewed as a witness about a burglary.
A. Standard of Review
“ “When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews tire factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence/ ” State v. Ransom, 288 Kan. 697, 705, 207 P.3d 208 (2009) (quoting State v. Gant, 288 Kan. 76, Syl. ¶ 1, 201 P.3d 673 [2009]).
The State has the burden to prove by a preponderance of the evidence that a confession was voluntary, i.e., that the statement was the product of the defendant’s free and independent will. Ransom, 288 Kan. at 705-06. The court considers the following nonexclusive factors based upon the totality of the circumstances: “ ‘[T]he defendant’s mental condition; the manner and duration of the interrogation; the ability of the defendant to communicate with the outside world; tire defendant’s age, intellect, and background; the fairness of the officers in conducting the interrogation; and the defendant’s proficiency with the English language.’ ” Ransom, 288 Kan. at 705-06 (quoting State v. Cofield, 288 Kan. 267, Syl. ¶¶ 2, 3, 203 P.3d 1261 [2009]); see State v. Morton, 286 Kan. 632, 640, 186 P.3d 785 (2008).
B. Analysis
McMullen’s first obstacle is self-inflicted. The record on appeal does not provide the information necessary for this court to review the factual findings upon which the district court’s decision was based. Apparently, McMullen did not file a suppression motion, but rather the Jackson v. Denno hearing was requested by the State. Consequently, we have no record of the arguments that McMullen presented to the district court. Further, without the hearing transcript, we have no record of the State’s evidence and, obviously, cannot determine whether that evidence was substantial and competent so as to carry the State’s burden. Most importantly, the appearance docket, which simply states that McMullen’s statement was admissible, is the only record of the court’s ruling on the matter, i.e., we have no findings of fact to review. Moreover, the only conclusion of law presented by the record for our review is the ultimate determination by the district court to admit the confession.
At oral argument, McMullen acknowledged that it is his duty to properly designate the record on appeal to support his claims of error. See State v. Trussell, 289 Kan. 499, 507, 213 P.3d 1052 (2009); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). If that record is inadequate, the appellate court presumes the district court’s findings were properly supported and the claim of error must fail. Trussell, 289 Kan. at 507 (citing State v. Haney, 34 Kan. App. 2d 232, 236, 116 P.3d 747, rev. denied 280 Kan. 987 [2005]); Paul, 285 Kan. at 670.
Nevertheless, even if we were to accept McMullen’s version of the facts, we would not be led to the conclusion that his confession was involuntary. His complaint about the interrogation occurring in the early morning hours is misleading, given McMullen’s work schedule. McMullen testified that he had 9 hours sleep, arising about noon, before working his shift from 2 p.m. to midnight, after which he went directly to the police station for the interview. For persons working a normal shift, the comparable time of the interview would have been 5:15 to 5:30 p.m. Thereafter, the interrogation lasted approximately lVz hours. We have affirmed the vol-untariness of confessions given under considerably more tiring circumstances. See, e.g., State v. Gonzalez, 282 Kan. 73, 101, 145 P.3d 18 (2006) (affirmed confession was voluntary even where defendant complained that he had not slept for 2 days, was under the influence of marijuana, and the interview lasted 2 to 3 hours); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006) (confession was voluntary even though interrogation lasted 8 or 9 hours); State v. Ramos, 271 Kan. 520, 525, 527, 24 P.3d 95 (2001) (minors confession voluntary even where he was up all night before questioning and seemed tired to the interrogating officer, but showed no outward signs of exhaustion such as slurred speech, repetition, or incoherence).
McMullen also complains about the detective’s employment of “subtle deception” in obtaining the confession. To the extent McMullen is complaining that he was drawn to the police station under false pretenses, such a deception does not impact the analysis in this case. We are not confronted with a question of whether the interview was pursuant to a voluntary encounter, because the detective followed the protocol for a custodial interrogation. Detective Biggs advised McMullen of his Miranda rights and told him the true nature of the interrogation, prior to obtaining the confession. Cf. Morton, 286 Kan. at 651-54 (law enforcement officer misled defendant as to the nature of the interrogation and did not give Miranda warnings).
To the extent McMullen is suggesting that the confession was induced by a promise of leniency, that conclusion is also not warranted. Granted, a promise offered to induce a confession is potentially a form of coercion. State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009). However, McMullen’s own testimony established that, in response to his inquiry as to what would happen if he had a different story, the detective simply responded that McMullen would be allowed to go home after the interview and that his statement would be given to the district attorney. We cannot construe the detective’s response as a promise of leniency in exchange for a confession.
Given the record before us, we find that the district court did not err in admitting McMullen’s written confession into evidence.
Admissibility of Victim’s Videotaped Statement
Next, McMullen purports to challenge the admissibility of the videotape of the victim’s safe-talk interview and the admissibility of the witnesses’ testimonies about the contents of the videotape. However, he fails to present any arguments directly addressing the testimony of witnesses. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008) (issues not argued deemed abandoned); State v. Martin, 285 Kan. 994, 998, 179 P.3d 457 (2008). Further, we are again hampered by an incomplete record, which does not include either a copy of the videotape or a transcript of its contents.
A. Standard of Review
“ “When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.’ State v. Walters, 284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).” State v. Richmond, 289 Kan. 419, 426, 212 P.3d 165 (2009).
When the more discretionary aspects of an admissibility determination are challenged, “the district court’s decision will not be overturned on appeal if reasonable minds could disagree as to the court’s decision.” State v. Boggs, 287 Kan. 298, 307, 197 P.3d 441 (2008).
B. Analysis
On appeal, McMullen’s principal complaint appears to be that J.J.’s videotaped statement contradicted his live testimony at trial. However, at trial McMullen objected to the videotape as being repetitive and cumulative. One might ponder how the evidence could be both contradictory and cumulative. In that vein, the State urges us to find that the issue has not been preserved. See State v. Ransom, 289 Kan. 373, 388, 212 P.3d 203 (2009) (party may not object on one ground at trial and another ground on appeal).
Nevertheless, while inconsistencies in a witness’ statements might well provide excellent ammunition to argue to the jury that little weight should be assigned to the evidence, those contradictions do not render the statements inadmissible. A witness achieves turncoat status when the witness’ trial testimony deviates from a previous statement the witness has provided on the topic. State v. Miller, 284 Kan. 682, 710, 163 P.3d 267 (2007). K.S.A. 2008 Supp. 60-460(a) authorizes the admission of that prior statement if the witness is present at the hearing and available for cross-examination. See State v. Holt, 228 Kan. 16, 22, 612 P.2d 570 (1980) (“ Trior hearsay statements of a “turncoat witness” are admissible as substantive evidence under K.S.A. 60-460[a].’ ”); State v. Fisher, 222 Kan. 76, Syl. ¶ 2, 563 P.2d 1012 (1977) (law enforcement officers permitted to testify as to child sexual abuse victim’s prior statements impheating the defendant after child recanted the accusation at trial). Indeed, in this case, even McMullen’s own live testimony contradicted the written statement he had previously given.
Additionally, McMullen cites and discusses our prior decision in State v. Henderson, 284 Kan. 267, 160 P.3d 776 (2007). Apparently, McMullen believes that case is compelling because this court addressed the admission of a videotaped statement from a child victim and found a violation of the defendant’s constitutional right to confrontation. 284 Kan. 267, Syl. ¶ 3. Of course, the distinguishing fact in Henderson was that the videotape was the only evidence presented to the jury in which the victim herself identified her abuser; the child did not testify and had never been subjected to cross-examination. 284 Kan. at 276. Here, J.J. took the witness stand at trial and was subject to McMullen’s cross-examination. See Crawford v. Washington, 541 U.S. 36, 57, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004) (right of confrontation satisfied by defendant’s opportunity to cross-examine the witness). Accordingly, any suggestion by McMullen that the admission of the safe-talk interview videotape violated his Sixth Amendment right to confront witnesses is widrout merit.
Finally, McMullen contends that the State did not preserve its right to present J.J.’s testimony via videotape under the provisions of K.S.A. 22-3434. The short answer to that contention is drat K.S.A. 22-3434 simply does not apply in this case. That statute essentially provides for alternative methods to obtain the cross-examined trial testimony of a child victim, where forcing the child to testify in open court would be detrimental to the child. Here, the videotape contained the safe-talk interview conducted by a social worker. It was not intended to be a substitute for the child’s testimony at trial, nor did it meet the procedural requirements to be used as such.
On the record before this court, we find that the district court did not err in allowing the admission of J.J.’s videotaped interview.
Consecutive Hard 25 Life Sentences
Finally, McMullen asserts that the district court did not have jurisdiction to impose two consecutive hard 25 life sentences under K.S.A. 21-4643. The legal basis for McMullen’s challenge is not readily discernible. While he asserts that “the sentence was contrary to the statute,” he fails to explain the perceived statutory violation. Instead, he appears to argue that it is simply unfair that his aggregate sentence for the two current convictions includes a minimum prison sentence of 50 years, whereas if he had been prosecuted as a second-time offender, he could only receive a mandatory minimum prison sentence of 40 years under K.S.A. 21-4643(b).
A. Standard of Review
To the extent that McMullen is asking us to interpret the sentencing statute, he has presented a question of law subject to unlimited review. See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
B. Analysis
McMullen does not challenge that the individual hard 25 life sentences for each conviction were statutorily authorized under K.S.A. 21-4643. Rather, he appears to suggest that where multiple convictions in one case fall under the provisions of Jessica’s Law, K.S.A. 21-4643, then the mandatory minimum sentences for all such convictions must be imposed to run concurrently. Of course, the statute says no such thing.
To the contrary, in multiple conviction cases the sentencing judge has the discretion to run the individual sentences either concurrently or consecutively. See K.S.A. 21-4608(a); K.S.A. 21-4720(b). McMullen has not directed us to any authority excepting hard 25 life sentences from this sentencing court discretion. Previously, this court has affirmed the imposition of consecutive life sentences for convictions arising out of the same transaction. See State v. Vanderveen, 259 Kan. 836, 843, 915 P.2d 57 (1996) (trial court did not abuse its discretion by imposing consecutive life sentences); State v. Stafford, 255 Kan. 807, 817, 878 P.2d 820 (1994) (same, regarding hard 40 sentences.).
With respect to McMullen’s fairness argument, we are not seduced by his attempt to create an inequity by comparing his situation to that of a second-time offender. If McMullen would have had a prior conviction for one of the crimes covered by Jessica’s Law, he would have been facing a potential, additional mandatory prison time of 80 years for his two current convictions, if run consecutively. Likewise, if his two convictions had been committed and prosecuted sequentially, he would have received a mandatory minimum prison term of 25 years for the first conviction and 40 years for the second, i.e., a potential of 65 years’ imprisonment before parole eligibility.
More to the point, the legislature did not plainly state, nor are we persuaded, that it intended that a defendant committing multiple crimes subject to Jessica’s Law is always to be sentenced as if the defendant had committed only a single offense. Accordingly, we find that the district court had the authority to impose consecutive sentences for McMullen’s two convictions.
Affirmed. | [
80,
-20,
-83,
-82,
42,
97,
106,
62,
67,
-13,
-91,
115,
-81,
-62,
4,
106,
-109,
127,
85,
97,
-63,
-73,
35,
-31,
-70,
-5,
-78,
84,
-77,
91,
-20,
-33,
89,
112,
-118,
81,
102,
74,
-1,
-42,
-118,
1,
-72,
-62,
82,
2,
36,
33,
62,
14,
49,
31,
-93,
42,
30,
-38,
-87,
44,
74,
60,
-40,
81,
-5,
-107,
-97,
52,
-94,
32,
-97,
13,
120,
62,
-39,
57,
0,
-24,
-13,
-124,
-110,
116,
79,
-81,
-88,
97,
-26,
37,
-87,
-26,
125,
-24,
111,
30,
-76,
39,
-103,
104,
72,
36,
-73,
-3,
32,
20,
-116,
120,
-29,
69,
54,
109,
-64,
-121,
4,
-111,
77,
41,
86,
-6,
-13,
37,
-128,
53,
-33,
-96,
84,
86,
58,
-41,
-98,
-15
] |
On January 16, 2009, this court suspended the petitioner, Frederick B. Campbell, from the practice of law in Kansas for a period of 6 months. See In re Campbell, 287 Kan. 757, 199 P.3d 776 (2009). In addition, before reinstatement, the petitioner was required to follow the procedure outlined in Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376) and to address the possibility that a medical or psychological condition may have contributed to the conduct leading to the sanctions, including the existence and/ or effect such a condition might have on petitioner s future conduct.
On July 17, 2009, the petitioner filed a petition for reinstatement. The court subsequently ordered that the petitioner appear at a reinstatement hearing. A reinstatement hearing was held before a panel of the Kansas Board for Discipline of Attorneys on January 26, 2010. The court has now received and considered the Reinstatement Final Hearing Report including the findings and recommendations of the panel.
The panel finds that the petitioner has complied with the procedural requirements of Supreme Court Rule 219. With regard to tire substantive findings required by Rule 219, the panel, among other findings, found that although the petitioner is now able to admit that his conduct was not authorized, he continues to be unable or unwilling to recognize the serious injuiy which his conduct inflicted. The panel also found that the petitioner suffers from Asp-erger’s Disorder for which he has been undergoing some type of therapy since approximately 1993, and further, that while the petitioner has been receiving therapy to assist him in developing appropriate social relationships and in understanding social clues, Asperger’s Disorder is a permanent condition and the petitioner will always process information differently than individuals who do not have the disorder.
Dated this 19th day of May, 2010.
Based on these and other findings, the panel concluded that the petitioner has presented sufficient evidence to support his petition for reinstatement and recommended that this court reinstate him with the condition that if he returns to the practice of criminal prosecution, he be required to develop a relationship with another criminal prosecutor and meet with the prosecutor on a monthly basis to review pending cases.
The panel also found that prior to reinstatement, the petitioner must pay the 2009-10 attorney registration fee of $150 to the Clerk of the Appellate Courts, a reinstatement fee of $100, and the 2009-10 registration fee of $20 to the Kansas Continuing Legal Education Commission.
This court has fully considered the findings and recommendations of the panel. A majority of the court finds that the recommendations of the panel should, with some amendments, be adopted by the court and the petitioner should be reinstated. A minority, however, continues to believe that the issues presented by this case are serious enough to deny reinstatement to the petitioner on the current showing.
It Is Therefore Ordered that the petitioner be reinstated to the practice of law in the state of Kansas as of the date of this order.
It Is Further Ordered that the petitioner comply with the recommendations of the hearing panel with the amendment that, should the petitioner return to the practice of criminal prosecution, the petitioner is ordered to meet with another criminal prosecutor to review the petitioners cases, including all felonies and any case that presents unusual issues, every 2 weeks. This condition shall continue for a minimum of 1 year and until further order of this court made on application by the petitioner.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports. | [
-112,
-22,
-50,
94,
11,
-95,
62,
-114,
85,
-29,
-9,
115,
-27,
-38,
5,
41,
68,
69,
64,
121,
-45,
-73,
119,
-55,
-58,
-5,
-45,
-41,
-72,
127,
-26,
-100,
74,
120,
-62,
21,
102,
-55,
-121,
-36,
-118,
7,
9,
-63,
81,
-64,
32,
111,
19,
7,
49,
-98,
-29,
14,
29,
-53,
8,
40,
31,
-4,
84,
-111,
-37,
7,
-21,
22,
-93,
68,
28,
7,
112,
47,
-98,
57,
0,
-24,
51,
22,
-126,
64,
79,
-71,
13,
99,
98,
-91,
9,
-76,
-8,
-120,
15,
-79,
-67,
-89,
-103,
89,
67,
36,
-107,
-3,
118,
20,
37,
120,
-29,
-116,
21,
-20,
10,
-50,
-12,
-111,
-33,
52,
-34,
59,
-21,
35,
32,
69,
-57,
-10,
94,
-57,
122,
-101,
-102,
-76
] |
The opinion of the court was delivered by
Biles, J.:
Thomas D. Plotner appeals his conviction and sentence for three counts of rape of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2). Prior to sentencing, he filed a motion to withdraw his plea to those charges, which was denied. The district court sentenced him on each count to life in prison with a 25-year mandatory minimum sentence under K.S.A. 21-4643, commonly known as Jessica’s Law, but ordered the sentences to run concurrently to one another. This court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
These questions are raised on appeal: (1) Was Plotner entitled to withdraw his plea? (2) Did the district court abuse its discretion by failing to grant a downward durational departure? (3) Did the district court err by issuing a no-contact order? and (4) Is the statutorily-mandated lifetime postrelease supervision order constitutional?
We affirm Plotner’s conviction and sentence except for the no-contact order, which the State concedes was an illegal sentence. We reject all other challenges Plotner raises in this appeal. The no-contact order is vacated. The remainder of Plotner’s sentence is valid. See State v. Post, 279 Kan. 664, 112 P.3d 116 (2005) (vacating no-contact order; refusing to disturb remainder of sentence). We explain our decision below.
Factual and Legal Background
The State charged Plotner with seven off-grid crimes after two of his three step-daughters, all of whom were under the age of 14, alleged he had inappropriately touched them between July 2006 and April 2007. Plotner also admitted to having inappropriate sexual relations with all three. Those charges included three counts of rape of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2); three counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A); and one count of sexual exploitation of a child in violation of K.S.A. 21-3516(a)(5).
Plotner entered a plea agreement the day his arraignment was scheduled. In exchange for pleading guilty to the three rape charges, the State dropped the four other charges. There was no joint recommendation for sentencing. Plotner was free to seek a downward departure, and the State could seek the maximum sentence possible.
Approximately 6 weeks after entering his guilty plea, but prior to sentencing, Plotner asked to withdraw his plea and have a new attorney appointed to represent him. The district court assigned Plotner new counsel, who filed a motion to withdraw the guilty plea, claiming it was not knowingly or voluntarily made.
The same district court judge who presided over the initial plea proceeding also conducted the hearing on the motion to withdraw Plotner s guilty plea. Plotner testified, as did Linda Eckelman, the court-appointed counsel who had negotiated his plea agreement. The district court denied the motion based on its determination that Eckelman had adequately represented Plotner, and that Plot-ner had knowingly and voluntarily entered his guilty plea. The district court also noted there was overwhelming evidence of guilt. While it is unnecessary to recite all of the evidence here, it is sufficient to say it included Plotner’s videotaped confession, DNA evidence, and a videotape depicting Plotner engaging in sex with the eldest victim.
Plotner then filed a motion seeking a competency evaluation, which was granted. The evaluation reflected Plotner had an I.Q. of 91, an average score, and was suffering some mild to moderate symptoms of depression due to his circumstances.
A motion for a downward durational sentencing departure was filed. In that motion, Plotner asserted the following mitigating circumstances: he was 30 years old; he had no prior felony convictions; at the time of the crimes he was under stress related to the breakup of his marriage; and his intellectual abilities were limited, affecting his ability to comprehend the seriousness of his conduct. At the sentencing hearing, Plotner also asked the district court to consider the mental health evaluation, the motion to depart, letters he had written to the court, his confession to police, and his statement attached to the presentence investigation report. It was argued these showed Plotner had a very limited, and almost childlike, understanding regarding the seriousness of the crimes he committed.
The district court found Plotner had failed to present substantial and compelling reasons to depart from the statutorily mandated sentence of 25 years to life for each count. But rather than run the three sentences consecutively, as the State had requested, the district court ordered Plotner’s sentences to run concurrently. The district court also ordered restitution, lifetime postrelease supervision, payment of some costs, and that Plotner have no contact with the victims. Plotner timely appealed.
Analysis
Plotner s motion to withdraw his guilty plea was properly denied
Whether Plotner’s guilty plea may be withdrawn is controlled by K.S.A. 22-3210(d), which provides: “A plea of guilty or nolo con-tendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” This court will not disturb a district court’s decision to deny a pre-sentence motion to withdraw a plea unless the defendant demonstrates the district court abused its discretion. Defendants bear the burden of establishing an abuse of discretion. State v. White, 289 Kan. 279, 284-85, 211 P.3d 805 (2009). “ ‘Judicial discretion is abused when no reasonable person would take the view adopted by the district judge.’ ” State v. Ortega-Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008) (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005]).
Plotner argues he did not knowingly or voluntarily plead guilty as K.S.A. 22-3210 and this court’s jurisprudence require. In response, the State argues the contrary, but also claims Plotner failed to adequately brief whether the statutory conditions for accepting a guilty plea were met. An issue not briefed or raised incidentally without argument is deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). But Plotner’s appellate brief adequately addressed the issue. We reject the State’s latter argument without further comment.
When evaluating whether a defendant demonstrates “good cause” sufficient to withdraw a guilty plea under K.S.A. 22-3210(d), factors to consider may include whether: (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. White, 289 Kan. at 285; see State v. Sanchez-C azares, 276 Kan. 451, 454, 78 P.3d 55 (2003). In reviewing the record, we hold the district court properly considered whether there was good cause to permit Plotner to withdraw his plea.
At the hearing on the motion to withdraw the guilty plea, Plotner testified his first court-appointed attorney (Eckelman) never visited him in jail. Plotner claimed Eckelman only met with him twice before his plea, and each meeting was only 15 to 20 minutes in duration. He testified Eckelman never reviewed the police reports with him and refused to watch a relevant videotape. He testified he never asked about a plea agreement, nor had he and Eckelman discussed one prior to the day it was presented to him. Plotner alleged he had no notice of the arraignment date and, upon arriving at court, was surprised to see Eckelman and the prosecutor discussing a plea bargain. After the prosecutor left, Plotner said he and Eckelman discussed the plea for 10 minutes.
Eckelman, who by the time of the withdrawal hearing had been replaced by new court-appointed defense counsel, also testified. She contradicted Plotner’s account of her representation. She testified she visited Plotner in jail and met with him three times, two of which meetings were approximately an hour in length. She also testified she watched the videotape and discussed with Plotner the overwhelming weight of evidence against him, specifically, that the videotape depicted Plotner and a victim having sex.
Eckelman also stated that from their initial meeting Plotner raised the possibility of a plea and that he had always been extremely remorseful, wishing only to “get this over with.” Her version of the plea negotiation also differed from Plotner’s. She said after he arrived at court that morning, she requested that the pros ecutor discuss the plea with them both to ensure she had the details correct. She estimated she and Plotner met for an hour before he entered his guilty plea.
The plea hearing transcript supports Eckelman’s version of the events, showing that she explained Plotner’s sentence to him and inquired whether he understood her explanation. She also asked whether he needed more time to make his decision, to which he answered no, and whether he had had access to all the evidence in the case except the videotape, to which he answered yes. She then addressed his mental capabilities. Plotner indicated he was of sound mind and was a high school graduate who had worked in a local company’s shipping department for the last 11 years.
The plea hearing transcript also shows the district court made its own inquiry of Plotner as K.S.A. 22-3210 requires. The district court asked him whether he understood he had the right to plead not guilty, receive a jury trial, confront witnesses, and potentially be found not guilty if the State did not meet its burden of proof; whether he understood there was no difference in his maximum punishment for entering a guilty plea; whether he felt like he was under any coercion, threat, force, or timetable; whether he understood the possible sentence; whether he was pleading guilty because he believed he was guilty; and whether he understood the consequences of his plea. As to each inquiry, Plotner indicated he understood and answered he was pleading guilty because he believed he was guilty. This exchange also confirmed Plotner had previously received a copy of the complaint, a reading of the charges subject to the plea agreement, and an explanation that the charges were off-grid crimes requiring a life sentence.
In denying the motion to withdraw the guilty plea, the district court concluded Eckelman adequately represented Plotner and Plotner made his plea knowingly and voluntarily. The district court based the latter conclusion on evidence that Plotner was informed of all the charges and knew which counts would be dismissed in exchange for a plea and was informed of the possible sentence.
The district court found it was clear from the plea transcript Plotner knew his plea would result in a 25-years-to-life sentence. The district court also noted an implication in the record that Plot- ner viewed the plea as beneficial because it would save his stepdaughters the painful experience of testifying. The transcript reflects the district court properly considered whether there was good cause for withdrawal and found none. Further, reasonable people could agree with the district court’s assessment.
We hold the district court did not abuse its discretion by denying Plotner’s motion to withdraw his guilty plea.
Plotner s motion for a downward durational departure
The sentencing statute in this case mandates a fife sentence with a minimum of 25 years served “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-4643(a) and (d). But the statute also provides a nonexclusive list of mitigating factors district court judges may consider when determining whether there are substantial and compelling reasons for departure. K.S.A. 21-4643(d)(l)-(6). An appellate court reviews “a district court’s determination of whether mitigating circumstances presented under [K.S.A. 21-4643] are substantial and compelling” for an abuse of discretion. Ortega-Cadelan, 287 Kan. at 165.
Plotner argues the following mitigating circumstances: (1) He took responsibility for his actions; (2) he showed deep remorse for his actions; (3) he purposefully pled guilty in order to save the victims from testifying at trial; (4) the sexual acts between him and the oldest victim were not committed forcefully; (5) he had no significant criminal record prior to this crime — specifically, no prior sexually-motivated convictions; (6) he was relatively young at the time the crimes were committed; and (7) even with the requested downward departure, he would serve a considerable sentence.
A district court judge is required to undertake a two-step analysis when determining whether a departure motion should be granted. A district court judge first reviews the mitigating circumstances, and then determines whether substantial and compelling reasons warrant a departure. State v. Spotts, 288 Kan. 650, 655, 206 P.3d 510 (2009) (citing Ortega-Cadelan, 287 Kan. at 164). Specificity by the district court judge when making his or her determination is not statutorily required, though specificity is required if the district court judge decides departure is warranted, i.e., in those circumstances “the judge shall state on the record . . . the substantial and compelling reasons for departure.” K.S.A. 21-4643(d).
Here, after considering the circumstances Plotner advanced, which included: listening to arguments made by his attorney, listening to a statement by Plotner, and reviewing the motion for downward durational departure; listening to the State’s arguments; and reading the victims’ statements, the district court concluded Plotner had failed to present substantial and compelling mitigating circumstances. This was a sufficient evaluation.
For its explanation, the district court stated it could not grant a downward durational departure without substantial and compelling reasons to do so. Further, it noted the “reprehensible nature” of Plotner’s crimes and the legislature’s intent to tie Jessica’s Law sentences to the psychological damage children forced into sexual relationships suffer. The district court concluded that it found no reason to depart, but did order Plotner’s sentences to run concurrently. While the district court did not explain its conclusion as thoroughly as the district courts in Spotts and Ortega-Cadelan, its explanation satisfies K.S.A. 21-4643(a) and (d).
Reasonable people could agree with the district court’s evaluation and conclusion. The district court did not abuse its discretion when it denied Plotner’s motion for a downward sentencing departure.
The no-contact order constituted an illegal sentence
Plotner next argues the no-contact order the district court imposed is an illegal sentence because it fails to conform with K.S.A. 21-4603d(a), the statute governing authorized dispositions for those found guilty of a crime. He argues this failure requires remand for resentencing.
An illegal sentence is one imposed by a court without jurisdiction, a sentence which does not conform to the statutoiy provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. State v. Davis, 283 Kan. 767, 769, 156 P.3d 665 (2007). The State concedes the sentence is illegal but argues resentencing is not required. We agree with the State.
K.S.A. 21-4603d(a) gives district courts a number of sentencing options. Some authorized dispositions include prison, jail, fines, or probation. The statute also permits the district court to impose “appropriate combination[s]” of specific dispositions. K.S.A. 21-4603d(a)(ll). But when asked to interpret tire statute, this court has held sentencing a defendant to prison and imposing a no-contact order, i.e., a probation condition, was an inappropriate combination of the statutorily authorized dispositions and constituted an illegal sentence. State v. Post, 279 Kan. 664, 112 P.3d 116 (2005) (adopting position that prison and probation, dispositions permitted under K.S.A. 21-4603d(a), are mutually exclusive). To remedy this illegality, the Post court vacated the offending no-contact order, but it did not disturb the sentence’s remaining valid portions. 279 Kan. at 669.
Post controls this issue. The district court sentenced Plotner to incarceration with lifetime postrelease supervision and imposed a no-contact order. The relevant portions of K.S.A. 21-4603d(a) remain unchanged. See L. 2009, ch. 132, sec. 8. As Plotner argues, tire no-contact order was an illegal sentence. But the State correctly contends Post provides the appropriate remedy. The illegal no-contact condition of Plotner’s sentence is vacated; the remaining portions of his sentence are valid and remain in force.
Constitutional challenge to lifetime postrelease supervision is un-preserved
Plotner argues for the first time on appeal that sentencing a defendant to lifetime postrelease supervision as provided for in K.S.A. 22-3717(d)(l)(G) constitutes cruel or unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
Generally, parties may not raise constitutional issues for the first time on appeal. But this general rule has three exceptions that enable appellate review, including: “(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.” Ortega-Cadelan, 287 Kan. at 159 (citing Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 [1967]).
In Ortega-Cadelan, this court reviewed fully the applicability those exceptions have in the context of a defendant’s challenge under § 9 of the Kansas Constitution Bill of Rights to a life sentence imposed under K.S.A. 21-4643(a)(l) when that challenge was raised for the first time on appeal. The court noted that whether a life sentence under that statute was cruel or unusual punishment must be analyzed using the three-prong test set out in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). Ortega-Cadelan, 287 Kan. at 160-61. Those considerations are:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
In reviewing those factors, the Ortega-Cadelan court determined that a Freeman analysis necessarily intertwines both factual and legal questions, and further noted that no single legal consideration under Freeman controls the outcome. 287 Kan. at 161. Accordingly, the Oretega-Cadelan court determined it needed a record developed at the district court level to address the factual aspects embedded within the Freeman analysis in order for the defendant to properly challenge his or her life sentence under K.S.A. 21-4643(a)(l).
Plotner acknowledges this court has consistently held none of the Pierce exceptions apply to his issue and that the issue presents mixed questions of law and fact. See, e.g., State v. Oehlert, 290 Kan. 189, 191, 224 P.3d 561 (2010); State v. Easterling, 289 Kan. 470, 485-87, 213 P.3d 418 (2009); State v. Mondragon, 289 Kan. 1158, 1162-65, 220 P.3d 369 (2009); State v. Spotts, 288 Kan. 650, 652-54, 206 P.3d 510 (2009); Ortega-Cadelan, 287 Kan. at 159-61.
Plotner urges this court to reverse its precedent and consider the issue here, claiming his trial record is factually sufficient to address the issue. We find otherwise. Because this issue was not raised below, the record is devoid of the facts this court needs to evaluate it, i.e., the facts required to apply Freeman. For the reasons explained in Oehlert, Easterling, Mondragon, Spotts, and Ortega-Cadelan, Plotner cannot raise this issue for the first time on appeal.
Affirmed in part and reversed in part.
Davis, C.J., not participating.
Leben, J., assigned. | [
-47,
-24,
-99,
-2,
58,
96,
58,
80,
97,
-13,
-73,
115,
-87,
-53,
1,
123,
26,
-67,
84,
104,
83,
-73,
7,
-63,
-74,
-5,
-72,
-43,
-73,
95,
-84,
-98,
11,
80,
10,
-11,
70,
-54,
117,
86,
-118,
7,
-120,
-32,
80,
-126,
34,
111,
22,
11,
53,
62,
-13,
106,
28,
-46,
9,
40,
-37,
-67,
72,
-111,
-5,
-97,
27,
52,
-93,
1,
-72,
7,
-16,
54,
-104,
57,
8,
-24,
115,
-90,
-126,
116,
111,
-119,
-96,
38,
66,
1,
61,
-58,
61,
25,
78,
95,
-67,
-25,
-104,
88,
1,
37,
-97,
-43,
116,
20,
11,
-2,
103,
5,
23,
-20,
10,
-118,
-80,
-111,
-49,
113,
86,
-72,
-13,
1,
33,
117,
-57,
-16,
68,
-41,
120,
23,
-66,
-10
] |
The opinion of the court was delivered by
Harvey, J.:
This is a suit to enjoin a special assessment upon plaintiff’s property for the construction of a sewer in a city of the third class. It was tried to the court. Judgment was rendered for defendant. Plaintiff has appealed.
The facts were agreed upon, and in substance are these: On May 18, 1925, the mayor and council of the- city, at a special meeting regularly called, employed a civil engineer to make preliminary survey and to estimate the cost of constructing a sewer for a portion of the city. Such survey and estimate were made. On July 14, 1925, at a regular adjourned meeting of the mayor and councilmen, the plans and specifications for the sewer system were submitted by the engineer and were approved and adopted by the mayor and councilmen, and an ordinance was duly passed creating and describing sewer district No. 1 of the city, declaring to be necessary and ordering to be constructed therein a sewer with certain described mains, laterals, etc.; declaring liable for the cost of construction of such sewer (except cost of outlet, etc., as to which there is no controversy) all lots, blocks, parcels and pieces of land in such sfewer district, such cost to be apportioned and assessed against such property, exclusive of improvements thereon, according to the special benefits accruing thereto, and providing for the issuance of bonds for the payment thereof. Included in the description of the territory of the sewer district was approximately one-half in width of the right of way of plaintiff, including its depot, from Fifth street to Twelfth street. The sewer system was constructed and completed. On December 7, 1925, appraisers were appointed to fix the amount of benefits received by the property within the sewer district by reason of constructing the sewer, for the purpose of assessment to defray the costs of constructing the sewer. They made a report to .the mayor and council. On December 17 the mayor and council provided for a hearing of complaints of all persons interested with inference to such appraisements and special assessments, and fixed the time of the hearing as December 21. There was a hearing on that date, and continued to December 29, when a further hearing was had. Plaintiff appeared at both these hearings. On the last-named date the mayor and councilmen, after reconsidering the individual appraisement, considered the same to be fair and equitable to each and all, and the appraisement and assessment were then approved by the mayor and councilmen.
Thereafter an ordinance was duly passed making the specific assessments upon each lot and parcel of land within the sewer district.
In making the appraisement and assessment the entire portion of plaintiff’s light of way within the sewer district was treated as one tract or parcel of land. This portion of the right of way is crossed by several streets, and the areas of the streets were excluded in computing the area of plaintiff’s property subject to assessment. All of it was assessed at the lowest value of any of the residence property in the district. It is stipulated that “the pieces of said right of way if appraised or assessed without regard to the value of the buildings or improvements thereon varied and vary in value.” From this it is argued that' the assessment was inequitable and unjust as to plaintiff. The assessment was not made upon values of property, but upon the benefits accruing from the construction of the sewer. We think there was m> material error in treating the portion of plaintiff’s right of way, exclusive of street crossings, within the sewer district as one parcel or tract of land.
Plaintiff points out that there was no resolution adopted as provided by R. S. 12-602. That section outlines the procedure for the paving, etc., of streets and alleys; it does not pertain to construction of sewers. The proceeding in this case was under R. S. 12-607 et seq., which do not require such a resolution.
The appraisers appointed to fix the amount of benefits received by the respective tracts of property within the sewer district were not sworn; they did not subscribe to .and file an oath as such appraisers. Plaintiff argues this renders their assessment void, citing R. S. 12-608, and several cases from other states holding that where the statute requires appraisers to take such an oath, their failure to do so invalidates their proceedings. The statute cited relates to paving, etc., rather than to construction of sewers. The statute under which defendant proceeded in this case makes no requirement for the appointment of appraisers. They appear to have been appointed in this case in an advisory capacity to the mayor and council, who did in fact consider the assessment as to each tract and parcel of land and who themselves made the assessment and levy.
It may be noted that plaintiff does not contend it is not liable to be assessed for its proper portion of the cost of constructing the sewer. Neither does it specifically contend, and hardly by inference can be said to contend, that the portion of the cost of the sewer which was finally assessed against its property is greater than it should be. There is no charge of fraud, or any specific misconduct, made against any of the city officials. The entire complaint is of irregularities, most of which are predicated upon the erroneous theory that the city proceeded under the statutes pertaining to paving, when it did in fact proceed under the statute relating to sewers.
There was no error in denying the injunction. The judgment of the court below is affirmed. | [
-16,
104,
-100,
-18,
26,
66,
26,
-104,
81,
-88,
-27,
127,
-81,
75,
8,
101,
-17,
125,
84,
123,
-59,
-94,
67,
66,
-102,
-45,
-13,
-35,
-69,
125,
-10,
-49,
76,
49,
-62,
-99,
70,
66,
85,
84,
-122,
7,
-119,
-56,
-35,
64,
52,
123,
34,
79,
117,
72,
-29,
44,
24,
-5,
9,
44,
-39,
57,
80,
-6,
-116,
-107,
95,
4,
-96,
102,
-100,
-61,
-30,
12,
-104,
117,
-108,
-20,
115,
-90,
-122,
118,
79,
-69,
12,
98,
98,
1,
101,
-93,
-8,
-39,
12,
-38,
-115,
-92,
19,
59,
-54,
-63,
-68,
-99,
125,
18,
-121,
126,
-9,
-107,
95,
108,
11,
-122,
-28,
-13,
-53,
-96,
-127,
-125,
-21,
3,
48,
100,
-49,
-14,
94,
101,
18,
91,
-106,
-40
] |
The opinion of the court was delivered by
Harvey, J.:
This is a workman’s compensation case. The plaintiff, H. Gilbert, a man about 66 years of age, employed by defendant as a teamster and sort of foreman, received an injury while lifting a plank, which resulted in a double inguinal hernia. Upon an application of plaintiff an arbitrator was appointed to make the usual specific findings “and for such other and further findings on such other and further questions that may be suggested either by the plaintiff or defendant or both of them on the hearing before the arbitrator.” The testimony taken before the arbitrator tended to show plaintiff’s right to compensation. Much medical evidence was taken upon the question whether plaintiff could safely be operated upon and the disability successfully removed by such operation, in view of his then physical condition, which was described in detail in the evidence. At the close of the testimony defendant, while still denying its liability, proffered and tendered an operation for the double hernia on plaintiff at the expense of defendant, such operation to be performed by some skilled surgeon to be chosen by plaintiff. The arbitrator found in favor of the plaintiff for compensation and the amount due at the time of the hearing; that an operation for hernia such as plaintiff’s in a great majority of cases is successful; that if successful it would restore plaintiff to a normal condition, and that a reasonable time for recovery from such operation is sixteen weeks. He awarded plaintiff compensation up to the day of the hearing, the same to be paid at once, and further compensation for total disability for a period of not longer than sixteen weeks. He made no award for any liability that might attach should the operation be unsuccessful, for the reason that the amount, degree, or duration of disability, should any exist, could not then be determined. Soon after the award was filed, plaintiff filed a petition for review and modification of the award, for the reasons, among others, that the award was grossly inadequate, and that the arbitrator exceeded his authority. Upon the hearing of this petition additional medical evidence as to the advisability of an operation was presented. The court found, among other things, that the arbitrator exceeded his authority in passing upon the question as to whether or not the plaintiff should submit to an operation, and further found, from the testimony adduced before the arbitrator and the testimony on the hearing of defendant’s petition and application for a modification of the award, that an operation at plaintiff’s age, in his then physical condition, to remedy his hernia, would endanger plaintiff’s life, and that plaintiff’s refusal to accept the operation tendered by defendant is not unreasonable on the part of plaintiff, and that plaintiff, to secure compensation for the injuries received, should not be compelled to submit to an operation. Compensation was allowed for total permanent disability, and judgment entered accordingly.
The defendant has appealed from this judgment and contends that the court had no authority to entertain the petition for a review and modification of the award, for the reason that it was filed within less than six months after the report of the arbitrator.. There is no merit in this contention. R. S. 44-534 pertains to modification of judgment.' This proceeding was under R. S. 44-528, which authorizes the review of an award, for the reasons therein stated, at any time before final payment has been made under or pursuant to the award.
It is next contended that the court erred in holding that the arbi trator exceeded his authority in passing upon the question of whether or not it was reasonable for plaintiff to submit to an operation. We do not regard this question as important. One of the reasons for the review of the award was gross inadequacy. That is one of the reasons provided for by R. S. 44-528, and without regard to whether the arbitrator was authorized to take evidence and make a finding upon that question, if his ruling thereon resulted in gross inadequacy it was subject to review. This case is quite like the case of Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182. There the injury was of the same character as in this case. The arbitrator heard evidence as to whether the plaintiff should submit to an operation, and found that he should not be required to do so. The defendant filed a petition for the review and modification of the award, for the reason, among others, that it was grossly excessive. Upon the hearing the trial court,, considering the same evidence, found that, plaintiff’s refusal to submit to an operation was unreasonable, and reduced the amount of the award accordingly. Upon appeal plaintiff challenged the power of the court to review the award of the arbitrator. This court held the trial court, by finding there was no total disability but that there was partial, disability, found that the award of the arbitrator was grossly excessive, and brought the proceedings within R. S. 44-528, authorizing a review of the award by the district court. The same statute authorizes a review of an award that is grossly inadequate, which was a ground for review in this case. We regard holding on that question in Strong v. Iron & Metal Co., supra, as decisive of plaintiff’s right to have award of the arbitrator reviewed by the district court in this case.
Whether it was reasonable, in view of all the facts and circumstances disclosed by the evidence, to require plaintiff to submit to an operation as a condition precedent to his receiving compensation was a question of fact, to be determined from the evidence. (Strong v. Iron & Metal Co., supra; also see cases collected in the notes 18 A. L. R. 415, 431.)
It will not be necessary to analyze other cases cited. The judgment of the court below is affirmed. | [
-112,
106,
-111,
-100,
26,
64,
42,
-38,
113,
-121,
39,
95,
-19,
-97,
5,
55,
-9,
125,
81,
107,
-33,
-77,
19,
121,
-38,
-13,
-5,
87,
-71,
-18,
-26,
-43,
77,
56,
-126,
-44,
102,
-53,
-59,
84,
-54,
-105,
-86,
-23,
89,
0,
48,
62,
20,
75,
53,
-114,
-53,
44,
28,
-49,
109,
-88,
74,
59,
-12,
-7,
-88,
13,
-51,
17,
-78,
36,
-98,
107,
-38,
60,
-112,
49,
0,
-24,
82,
-74,
-125,
-12,
107,
-71,
4,
98,
98,
0,
5,
-11,
120,
-8,
15,
-50,
-115,
-91,
-109,
24,
74,
67,
-116,
-67,
122,
20,
-74,
126,
-11,
89,
14,
44,
19,
-122,
-106,
-79,
-49,
100,
-100,
11,
-21,
11,
21,
97,
-50,
-96,
92,
37,
123,
-37,
62,
-70
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiffs sued to have determined their rights in certain real property in Kiowa county, and to have that property partitioned between themselves and the other owners thereof. Judgment was rendered in favor of the plaihtiffs, and the defendants appeal.
The facts shown by the evidence were that Venetia E. Gardner, the wife of Dr. James A. Gardner, owned the real property, and on February 19, 1923, died, leaving a will by which she devised the property to her husband, “Dr. James A. Gardner, to have, possess, use and enjoy for and during his natural life, and upon his death the remainder unto the following-named persons in the following shares and proportions, to wit:
“To my sister, Margaret Goble, of Washington, Iowa, an undivided one-sixth (%) thereof;
“To my niece, Florence Goble, the daughter of the above-named Margaret Goble, also of Washington, Iowa, an undivided one>-sixth (%) thereof;
“To my sister, Mrs. Bessie Sickles, of Enid, Oklahoma, an undivided' one-third (Vs) thereof; and
“To my great-nephew, Harold H. Maxwell, of Walbridge, Ohio, an undivided one-third (%) thereof;
“In fee simple to be theirs absolutely.”
Dr. James A. Gardner survived his wife, but died intestate on March 11, 1923. Gardner did not in writing consent to the will of his wife. The will was filed for probate on March 1, 1923, but was not admitted to probate until March 19,1923. Letters testamentary were issued to Plenry W. Wacker as executor on March 27, 1923. After the will was filed in the probate court, but before the death of Dr. James A. Gardner and before the will was admitted to probate, the probate court appointed a commission, consisting of Henry W. Wacker and C. H. Bissitt, to take the election of Dr. James A. Gardner as required by law. That commission waited on Gardner and talked with him about his election. He expressed his satisfaction with the will, and his desire to consent to it, and declared he would take under it, and was about to sign the written election, when one of the commission suggested that he wait a little while before signing it. Gardner deferred signing the election, and indicated that he would sign it on Monday following. He died the day after the commission waited upon him, before the Monday arrived, and did not sign any election to take under the will or under the law. The plaintiffs are Gardner’s heirs and claim as such; the defendants are the devisees, other than James A. Gardner, named in the will of Venetia E. Gardner.
Pertinent statutes should be noticed. Section 22-11-7 of the Revised Statutes reads:
“The widow’s portion cannot be affected by any will of her husband, if she objects thereto, and relinquishes all right conferred upon her by the will.”
Section 22-127 reads:
“All the provisions hereinbefore made in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estates of dower and by curtesy are abolished.”
Section 22-238 reads:
“No man while married shall bequeath away from his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.”
Section 22-245 reads:
“If any provision be made for a widow in the will of her husband, and she shall not have consented thereto in writing it shall be the duty of the pro bate court; forthwith, after the probate of such will, to issue a citation to said widow to appear and make her election, whether she will accept such provision or take what she is entitled to under the provisions of the law concerning descents and distributions, and said election shall be made within thirty days after the service of the citation aforesaid; but she shall not be entitled to both.”
Section 22-246 reads:
“The election of the widow; to take under the will shall be made by her in person in the probate court of the proper county, except as hereinafter provided; and on the application by her to take under the will, it shall be the duty of the court to explain to her the provisions of the will, her rights under it, and also her rights under the law, in the event of her refusal to take under the will. The election of the widow to take under the will shall be entered upon the minutes of the court; and if the widow shall fail to make such election, she shall retain her share of the real and personal estate of her husband as she would be entitled to by law in case her husband had died intestate. If she elects to take under the will, she shall not be entitled to the provisions of the law for her benefit, but shall take under the will alone.”
Section 22-247 reads: •
“If the widow of the testator shall be unable to appear in court by reason of ill health, or is not a resident of the county in which said election is required to be made, it shall be the duty of the probate court, on an application made in her behalf, to issue a commission, with a copy of the will annexed thereto, directed to any suitable person, to take the election of said widow to-accept the provision of said will in lieu of the provision made for her by law; and it shall be the duty of the court, in said commission, to direct such person to explain to said widow her rights under the will, and by law.”
Gardner’s statements did not amount to a final, conclusive and irrevocable election because he decided to wait until Monday and further consider the matter. He could have changed his mind and could have refused to take under the will when Monday came.- At the time the attempt to take his election was made, the will had not been probated. Neither the probate court nor the commission had authority to take the election at that time. (R. S. 22-245.) If the written instrument called an election had been then signed, it might have amounted to a written consent to the will and would have been valid if done in the manner required by section 22-238 of the Revised Statutes. It follows that there was no election. One-half of the property owned by Venetia E. Gardner descended under the law to Dr. James A, Gardner. That property under the statute of descents and distributions descended to the plaintiffs.
The judgment is affirmed. | [
-15,
108,
-12,
31,
24,
-32,
-102,
10,
82,
-95,
37,
87,
105,
-54,
21,
45,
115,
-83,
70,
107,
-42,
-77,
95,
-120,
26,
115,
-54,
-59,
61,
-8,
117,
-41,
73,
32,
-126,
21,
-58,
-126,
-63,
-36,
-116,
-58,
-119,
-32,
-119,
-112,
58,
99,
16,
9,
-43,
-66,
-13,
42,
61,
-57,
104,
44,
-5,
-72,
1,
-72,
-82,
7,
-3,
23,
17,
-122,
-70,
-125,
8,
46,
-112,
17,
0,
-20,
115,
-74,
22,
-10,
15,
-103,
12,
118,
103,
96,
12,
-17,
-32,
-120,
15,
58,
13,
-89,
-74,
0,
-30,
36,
-66,
-103,
117,
80,
2,
-12,
-21,
-108,
92,
120,
6,
-117,
-42,
-77,
-123,
126,
-100,
26,
-21,
111,
50,
113,
-55,
-96,
93,
67,
56,
-69,
-49,
-78
] |
The opinion of the court was delivered by
Dawson, J.:
Defendant was convicted in the district court of Lyon county of the crime of statutory rape. The state’s evidence tended to show that the offense was committed by defendant upon the person of a female child of fifteen years, on the evening of June 11, 1925, at some distance into the country, near Emporia, the home of the girl’s parents. On their return to the girl’s home her mother heard a conversation between them in which defendant said, "Irene, don’t cry; you haven’t done anything so bad; I have been a brute to you.” Next morning the mother found the girl’s bloomers, which were tattered and stained. Two days later the mother accused defendant of seducing the girl. He said, “I know I have,” and stated his willingness to marry the girl. The girl’s father also took defendant to task for the alleged misdeed. The father’s testimony reads:
“Q. Well, what did you tell this man? A. I asked him what he meant by taking this girl out and doing like he did.
“Q. What did he say in reply to that? A. He didn’t have much of anything to say. . . .
“Q. What had you accused him of, if anything? A. I accused him of taking this girl out and tearing her clothes off and having sexual intercourse.
“Q. Did he admit or deny that, and if so, what did he say? A. He admitted it, and said he would do anything right.”
In defendant’s own testimony, he virtually admitted that the girl’s mother had accused him of the crime.
“Q. Didn’t she ask you what you meant by taking her out and tearing her clothes? A. I told her I didn’t do that.”
Three days after the offense was committed, on the evening of the day the mother accused defendant, and in apparent accord with his alleged promise to the injured parents to right the wrong he had done the girl, he married her. Some time later, date not shown, the girl left defendant. She testified:
“Q. Didn’t you leave him the 'first time and go home to your mother? A. I never left him but once.”
On July 20, 1925, about six weeks after the marriage, the girl made the following affidavit:
“I am now of the age of fifteen years. My name was formerly Irene Holzapfel. On the evening of June 11,1925, Dale Bell took me to- the swimming pool. After we got through swimming he took me in his car and started home, but said that his ear was only hitting on three cylinders and proposed that we go out on the pavement and see if we could not get it to work properly. We went south across the bridge at Soden’s until he came to a crossroad about a mile or a mile and a half south, where he turned to the west until he came to a hedge or bushes, where he stopped. He then asked me to submit to him, but when I refused he accomplished his act by force; that is, he had sexual intercourse with me against my will. ■
“On the following Sunday, June 14, 1925, he married me. He claimed that he loved me and would treat me well, and that he was very sorry for what he had done, and, believing him, I married him. In about a week after marriage he began to abuse me. He told me that, 'Now, that I have married you, the state cannot do anything with me.’ The third night after we were married he went by the house three times with another girl, and when I complained about it he said that I had no complaint coming.”
“(Signed) .Irene Bell.”
Defendant was arrested and at the preliminary the girl gave testimony in harmony with her affidavit; but at the trial she repudiated her earlier testimony and affidavit, and declared that she had been coerced by her mother into testifying as she did, and that her earlier testimony and affidavit were untrue; that she had never had sexual intercourse with defendant prior to her marriage with him, and that her mother had threatened to have her incarcerated in a reform school or lunatic asylum unless she gave evidence to support the prosecution:
“A. She told me last week — Friday—when I drank the iodine, was it because I had been living with Dale and crying, too. I had been up to Mr. Spencer’s office trying to get him to dismiss it, and she knew as well as any of us I intended to stick with Dale, and she told me if I did, she was going to go ahead with this trial and send me to the [Beloit] reform school. . . . If I went for him I was to be sent to the insane asylum, and if I went against him and did like she told me to she would get me out of it and bring me home.”
In rebuttal the girl’s mother denied that she ever suggested to her daughter that she should tell a falsehood, and swore she never threatened to send the girl “to an insane asylum or to Beloit.”
Jury trial, verdict of guilty, and sentence of defendant to the state reformatory.
Defendant appeals, contending that neither the corpus delicti nor the venue was proved, nor did the evidence establish the guilt of the defendant.
Touching briefly on these points, it is settled law that the fact that the victim of an offense of statutory rape takes the witness stand in behalf of the accused and denies that he had taken any unlawful liberties with her person is not necessarily of controlling significance. The fact of the crime may otherwise be conclusively established. (State v. Taylor, 119 Kan. 260, 237 Pac. 1053.)
It is argued that there was no proof of carnal penetration. There was evidence that the mother said to the defendant, “I know what you have done to my little girl. You have conceived her.” And there was evidence that in response to that accusation defendant said, “I know I have.” (State v. Cruse, 112 Kan. 486, 212 Pac. 486, syl. ¶ 6.) There was'also the evidence of the conversation between the girl’s father and defendant; there was the incident of her crying on her return to her home after going swimming and auto riding with defendant, and his words to her at that time, “Irene, don’t cry; you haven’t done anything so bad; I have been a brute to you.” There was also the evidence of the tattered and stained bloomers, and there was the evidence inherent in the fact that the girl had made an affidavit and had testified at the preliminary to the fact of the crime. And the fact that he married the fifteen-year-old child on the very day the mother accused him of ravishing or seducing her is not without evidential significance under all the circumstances. Cer tainly all this array of evidence was quite sufficient to prove carnal penetration, and likewise to establish the defendant’s guilt, since the jury gave it credence. (State v. Taylor, supra.)
The well-worn point is also raised that the prosecution failed to prove the venue — that the offense was committed in Lyon county. It is doubtful if that point was sufficiently raised or intended to be raised in the trial court. If so, it was enshrouded in this cloud of words:
“The defendant now enters a demurrer to the evidence offered by the state for the reason and on the grounds that same does not show a form of action or that a crime has been committed as alleged in the information in the case, there being no evidence here that an actual penetration was had or that the act of rape was fully consummated as alleged.”
If this pleading was designed to present the proposition that venue had not been proved, it was so obscurely hinted at that apparently neither the prosecuting attorney nor the trial court caught the point. All the evidence in this case tended to show that the girl’s home was in Emporia, that defendant took her to a swimming pool and then drove to the end of the paving and across the bridge at Soden’s, and a mile or so beyond, and there turned west towards a hedge or some bushes and committed the crime. There is not the slightest reason to doubt that these places were well known to all concerned in the trial, and that court and jury knew without formal testimony that “the end of the pavement,” “Soden’s,” “the bridge,” and “a mile and a half south,” and “west to a hedge or bushes,” were all familiar places in the vicinity of Emporia and all well within the confines of Lyon county. In this appeal defendant makes no pretense that the locus of the alleged offense was or might have been outside the borders of Lyon county. (State v. Dollar, 88 Kan. 346, 128 Pac. 365; State v. Pack, 106 Kan. 188, 186 Pac. 742. And see, also, K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kan. 736, 21 Pac. 589; Carey v. Reeves, 46 Kan. 571, 26 Pac. 951; Railway Co. v. Paxton, 75 Kan. 197, 88 Pac. 1082.) To reverse this case because this matter of venue was not formally proven, when it was never an issue in serious dispute, would scandalize the administration of justice. (State v. Fleeman, 102 Kan. 670, 677, 171 Pac. 618; State v. Farrar, 103 Kan. 774, 176 Pac. 987; State v. Seidel, 113 Kan. 390, 392, 214 Pac. 565.)
But apart from .that, the rule has frequently been announced by this court and should be applied here, that whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court, he must raise that point in such clear and simple language that the trial court can understand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal. (State v. Everett, 62 Kan. 275, 62 Pac. 757; State v. Balliet, 63 Kan. 707, 66 Pac. 989; Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796; Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075; Livingston v. Lewis, 109 Kan. 298, 301, 198 Pac. 952; Brick v. Fire Insurance Co., 117 Kan. 44, 230 Pac. 309; Collis v. Kraft, 118 Kan. 531, 532, 235 Pac. 362.)
In Brown v. Oil Co., 114 Kan. 482, 483, 218 Pac. 998, it was said:
“A litigant will not be heard on appeal to complain of any order,.ruling or judgment of a trial court which he suffered the trial court to make without objection . . . and mere general objections which do not plainly indicate the error a trial court is about to commit, are unavailing on appeal.”
The judgment is affirmed. | [
-80,
104,
-99,
125,
43,
-32,
-22,
-72,
22,
-57,
49,
115,
-21,
-50,
0,
105,
10,
123,
84,
113,
-107,
-106,
23,
-31,
-10,
-13,
-78,
-43,
-77,
-35,
-12,
-3,
76,
34,
-38,
-107,
98,
-56,
-27,
92,
-122,
14,
-117,
-20,
-110,
66,
38,
25,
82,
14,
53,
30,
-13,
43,
28,
-37,
41,
44,
-53,
-67,
40,
49,
-78,
21,
-81,
54,
-77,
36,
-106,
-124,
72,
34,
-103,
57,
0,
-3,
115,
-76,
6,
117,
15,
-117,
-87,
98,
98,
1,
13,
-58,
-88,
-119,
111,
127,
-67,
-89,
24,
72,
65,
109,
-65,
-39,
68,
80,
46,
122,
-23,
78,
121,
64,
10,
-113,
-108,
-111,
-115,
60,
26,
59,
-13,
-67,
17,
117,
-57,
118,
92,
82,
120,
-109,
-114,
-73
] |
The opinion of the court was delivered by
Burch, J.:
J. N. Richardson, president, and O. A. Powell, vice president, of the American State Bank of Wichita, were convicted in separate trials of violation of the section of the banking act making it a felony for a bank to receive deposits while it is insolvent. Both defendants appealed. Because the separate appeals presented" numerous questions common to the two cases, they were disposed of in a single opinion (State v. Powell, 120 Kan. 772, 245 Pac. 128). In a petition for rehearing presented by Richardson, it is said that in reaching the conclusion insolvency of the bank was fully proved in Richardson’s case, the court apparently coupled the records of the Powell and Richardson cases; referred to matters not proved in Richardson’s case; and determined the merits of Richardson’s appeal from facts with which he had not been confronted at his trial; and in view of what he is pleased to call “the wide scope of matters referred to in the opinion in this case,” he takes the liberty of suggesting matters foreign to both records, which he now desires the court to take into consideration.
In determining whether the bank was proved to be insolvent so conclusively that the expert testimony on the subject, wrongfully admitted, prejudicially affected Richardson’s substantial rights, the record in Powell’s case was not consulted or considered, and the opinion of the court does not present the slightest appearance of a coupling of the two records, in reaching a conclusion respecting solvency of the bank.
As indicated, many questions in the two cases were identical, and were so treated in the opinion (pp. 774 to 786). The proper method of proving insolvency, including use of expert testimony, was a subject common to the two cases, and was so treated (pp. 786 to 788). Effect of the error in admitting the expert testimony on Richardson’s case was then separately treated (pp. 789 to 791, middle of page). Other assignments of error peculiar to Richardson’s case were then disposed of (pp. 791 to 794, middle of page). Powell’s case was then disposed of on grounds not pertinent to Richardson’s case. In treating the subject of the bank’s solvency in its relation to Richardson’s case, the record in Richardson’s case was rigidly adhered to. Had it been permissible to resort to the record in Powell’s case, it would not have been necessary to discuss the subject separately in Richardson’s case.
Since there is no foundation for Richardson’s assertion that the court went outside the record in deciding his case, the assertion may not be used as a pretext for injecting into the petition for rehearing matters not contained in the record in his case.
Matters properly presented in the petition for rehearing have been duly considered. They are sufficiently covered in the original opinion.
The petition for rehearing is denied. | [
-16,
104,
-11,
-66,
42,
-32,
40,
-98,
73,
-120,
37,
83,
-87,
-62,
21,
105,
118,
13,
84,
107,
-42,
-77,
55,
-31,
-45,
-77,
121,
93,
-76,
122,
-28,
-11,
76,
48,
74,
-43,
102,
-54,
-61,
28,
-114,
-123,
-71,
72,
-7,
-111,
52,
118,
54,
10,
113,
62,
-29,
40,
30,
-58,
72,
40,
91,
60,
112,
-71,
-118,
-115,
111,
16,
19,
3,
-24,
6,
-40,
46,
-104,
51,
1,
-24,
112,
-122,
2,
-28,
111,
9,
13,
-10,
102,
49,
117,
-21,
-84,
-120,
38,
-41,
-115,
-121,
-111,
72,
9,
1,
60,
-99,
109,
112,
7,
-2,
-17,
5,
29,
108,
9,
-38,
-42,
-111,
-53,
60,
27,
91,
-21,
-31,
32,
116,
-52,
-30,
89,
23,
90,
-103,
-66,
-80
] |
The opinion of the court was delivered by
Dawson, J.:
The plaintiff recovered judgment against defendant for $119.25 as an alleged balance due for wages in building a house.
The action was commenced before a justice of the peace. The issues were framed in bills of particulars filed by the litigants.
Plaintiff alleged that in the summer of 1922 he and defendant made an oral agreement whereby he undertook to do all the carpenter work on a house being constructed on defendant’s farm for $850—
“And pursuant to said verbal contract plaintiff employed workmen, and also used his own labor, and started on said carpenter work; that soon thereafter the defendant proceeded to and did employ other workmen on said carpenter work, and also changed the plans of the construction of said dwelling house, and by said action plaintiff understood and was led to believe and now alleges that said verbal contract was abandoned on the part of both plaintiff and defendant; that plaintiff proceeded in said construction work and rendered his own labor and services -as hereinafter set out, and employed workmen and paid said workmen with his own money as hereinafter set out; that defendant urged and requested plaintiff to employ said workmen to work on defendant’s residence.”
Plaintiff set out at length an account of a number of hours’ work performed by him at 75 cents per hour, and an account of a certain number of hours’ work at 50 cents and at 35 cents per hour by •other workmen, totaling a reasonable wage charge of $660.25 for himself and to reimburse him for wages paid by him to workmen employed by him at defendant’s request. Plaintiff gave defendant ■credit for $525 paid him on account, and credit for $16 for provisions and feed supplied by defendant.
Plaintiff alleged that defendant owed him a balance of $121.25, for which sum he prayed judgment.
In defendant’s bill of particulars, he admitted—
“That the plaintiff and defendant entered into a verbal agreement, by the terms of which the said plaintiff was to erect for the defendant on the defendant’s farm a dwelling house, and do all the carpenter work on said dwelling house for the sum of eight hundred fifty dollars, and that the plaintiff employed workmen to assist him toward the erection of said dwelling house. . . . '
“The defendant denies that he employed other workmen to work on said dwelling house except upon the request of the plaintiff, and that the plans, specifications or the construction of said dwelling house was changed by the defendant or that the agreement between the plaintiff and defendant was ever mutually abandoned and that the plaintiff ever had any agreement, right or authority to proceed with the carpenter work on said dwelling house, except upon the verbal agreement to do all of said carpenter work for the aforesaid! sum of eight hundred fifty dollars.”
Defendant further alleged that plaintiff abandoned the work on November 21, 1922, and thereafter refused to do any further work on the house, although requested to do so by defendant. Defendant alleged that plaintiff’s carpenter work was very inefficient and inaccurate and not worth over fifty cents an hour, and that none of the workmen hired by plaintiff were worth over thirty-five cents per hour. Defendant’s statement of account agreed with that of plaintiff touching the sum paid plaintiff on account, $525, and differed but. slightly on the miscellaneous items of provisions and feed furnished by defendant.
Defendant further alleged that in cash and goods he had overpaid plaintiff the sum of $120.62; and as a counterclaim and set-off defendant alleged that by reason of plaintiff’s abandonment of the work he had been compelled to hire other carpenters and workmen to complete the dwelling house at a necessary outlay of $673.10, of which amount $413.72 was in excess of the total contract price for which plaintiff had agreed to do the work, to the consequent damage of defendant in the sum of $413.72. Defendant also specified other-items of damage and expense chargeable to plaintiff on account of misfitting of door openings, unplumbed partitions, departures from specifications, erroneous measurements, aggregating several hundred dollars — for all of which he prayed judgment for $300, the maximum amount recoverable in the forum where the action was begun.
From the decision of the justice of the peace, the cause was appealed to the district court and there tried de novo without reforming the pleadings. The jury returned a verdict for $119.25 in favor of plaintiff, and judgment was rendered thereon.
Defendant assigns various errors, contending, first, that plaintiff’s amended bill of particulars did not state a cause of action and defendant’s objection to the introduction of evidence should have been sustained. It is quite true that plaintiff’s cause of action was defectively stated. -He alleged that an oral contract had been made between himself and defendant whereby plaintiff was to do the job for $850. ' He did not squarely plead that such contract had been abandoned by mutual consent, nor that defendant had prevented him from completing the job, nor did he specifically allege that defendant hired him to work for wages. But when it is kept in mind that the action was begun before a justice of the peace, where rules of pleading are of little importance and can hardly be enforced (Lobenstein v. McGraw, 11 Kan. 645; K. P. Rly. Co. v. Taylor, 17 Kan. 566) the ruling of the district court on the point raised against the introduction of testimony did not constitute prejudicial error. Before the time set for the trial de novo, the defendant with much propriety might have applied to the district court for an order requiring the plaintiff to reform his pleadings so that his cause of action might more clearly have been stated, or so that its defects might have been so clearly apparent that they could be effectively challenged by demurrer. (R. S. 61-1003; Ziegler v. Osborn, 23 Kan. 464; Casterline v. Day, 26 Kan. 306; Baughman v. Hale, 45 Kan. 453, 25 Pac. 856; Longren v. Railway Co., 99 Kan. 757, 163 Pac. 183; Allison v. Griffin, 110 Kan. 443, 204 Pac. 685.)
2. The next assigned error relates to the overruling of defendant’s demurrer to plaintiff’s evidence. It presents a more serious problem. Defendant argues that the defects in plaintiff’s cause of action lie deeper than mere want of appropriate recitals in his pleading; that there was a dearth of evidence to prove a cause of action of any sort. Plaintiff had alleged and defendant had admitted that the parties had made an oral contract whereby plaintiff was to do the carpenter ■work for $850. Now, how did the contracting parties get rid of that $850 contract? There was no evidence that it was abandoned by mutual consent. (9 C. J. 723.) Neither was there any evidence that defendant had defaulted in his part of the contract (9 C. J. 725 et seq.), nor that he prevented plaintiff from carrying out his contract to completion. Defendant did tell plaintiff that he was not doing satisfactory work, but that was after plaintiff had quit the job. Defendant testified:
“A. I asked him to come and finish the job.
“Q. Well, what did he say? A. He said, I don’t think I can suit you.
“Q. What did you say? A. I told him I thought so, too.”
Of course the trial court and jury may not have believed that testimony, but it is the only evidence in the record submitted to this court which throws the slightest light on how the $850 contract alleged by plaintiff and admitted by defendant was terminated. And it need scarcely be added that a contract to do a job of work for a specified sum of money cannot be abandoned at the option or caprice of one of. the parties; nor can a party who has undertaken to do a job of work change his relation thereto from that of contractor to that of a wage earner without an agreement to that effect; nor can he by his own act or election fasten a liability on the other party to pay him the going wages for himself and his workmen in lieu of the stipulated sum for which he bound himself to do the job.
Plaintiff makes the sophistical argument that there was no contract because the stipulated bid was $850 if defendant furnished the mill work and $1,000 if plaintiff furnished it. But since plaintiff did not furnish the mill work, nor base a claim on his option to furnish it, the contract price was $850, and it is useless to discuss the alternative proposition. The rights of the parties are controlled by the $850 contract unless it was abandoned by mutual consent or unless defendant committed some act or default which justified plaintiff in rescinding it. Another suggestion advanced by plaintiff in support of the judgment is that it may be justified on the theory of quantum meruit. That doctrine is applicable in cases where the contract is called off by mutual consent (6 R. C. L. 976) and, perhaps, where the contractor is prevented by the owner from completing the contract, although in the latter case his measure of damages might more justly be based upon the contractor’s loss of profits which would have inured to him if he had been permitted to complete his contract. (9 C. J. 729.) The law is tolerant, however, in its attitude towards building contractors who breach their contracts by voluntary noncompletion, and will award them compensation quantum meruit for the work actually done, if it is of some substantial benefit to the owner (6 R. C. L. 974, 975), less a proper set-off for whatever damages the latter may have sustained by the contractor’s failure to complete the contract. Such set-off would neces-' sarily include due allowance for the owner’s expense in employing another contractor or other workmen to finish the job, and in eliminating and correcting defects in the work done by plaintiff. (School District v. Lund, 51 Kan. 731, 33 Pac. 595.) See, also, discussion and citations in Fritts v. Quinton, 118 Kan. 111, 233 Pac. 1036. In this case the contract price was $850. Plaintiff admitted the receipt of $541 in cash and goods on account. That left a margin of $309 for the completion of the house. Plaintiff admitted he did not complete the house. It was completed by defendant at an expense of several hundred dollars. The jury were not bound to accept as true the precise figures of expenses testified to by defendant, but they were bound to treat his evidence fairly, and were bound to find and allow defendant his fair and reasonable expenses in completing the house, and were bound to deduct that amount from the contract price of $850 before they could make any just allowance to plaintiff on quantum meruit, and if defendant’s just claim for a set-off, plus the sum ($541) he has already paid on account, should equal or exceed the total contract price ($850) for building the house, plaintiff would be entitled to no recovery on quantum meruit or on any other theory of law or equity. Indeed, plaintiff may be liable to defendant for some balance due on the set-off, if the proof be sufficient to support the allegations of defendant’s bill of particulars. To properly determine these matters, the judgment of the district court is reversed and the cause remanded for a new trial. | [
-47,
122,
-100,
-19,
-102,
96,
42,
-38,
113,
-127,
-73,
95,
-19,
-58,
16,
97,
-15,
89,
81,
107,
95,
51,
23,
19,
-14,
-13,
-13,
-59,
-71,
76,
-28,
-33,
76,
32,
-62,
-99,
-29,
0,
-59,
84,
-114,
-124,
-88,
-18,
-39,
64,
52,
27,
68,
72,
53,
-42,
-13,
44,
60,
-53,
40,
44,
107,
41,
112,
-7,
-98,
13,
79,
21,
-95,
102,
-100,
71,
120,
12,
-104,
53,
-127,
-39,
123,
-74,
-122,
116,
35,
-69,
9,
102,
98,
2,
117,
-21,
-8,
-40,
46,
-2,
-99,
-89,
-111,
56,
-117,
77,
-68,
-99,
120,
80,
38,
118,
-19,
29,
-99,
108,
3,
-113,
-42,
-77,
-113,
54,
-100,
-113,
-17,
3,
17,
97,
-49,
-94,
92,
67,
115,
-101,
-97,
-37
] |
The opinion of the court was delivered by
Bxjrch, J.:
The action was one to cancel an oil and gas lease. Plaintiff prevailed, and defendants appeal.
The lease was dated June 15, 1912, and embraced a quarter section of land. The term was for ten years, and as much longer as oil or gas could be produced in paying quantities. In October, 1912, a well was drilled which produced and still produces oil in paying quantities. In November, 1917, a dry hole was drilled. No further effort has been made to develop the oil and gas resources of the land, although numbers of producing wells have been drilled and are in operation on all the surrounding land. Plaintiff’s evidence warranted the inference that defendants have not reasonably developed her land, and have no present intention to do so. The defense stated in the answer was that development of the land surrounding plaintiff’s quarter section was such that further drilling on her tract was not warranted. The testimony in support of the defense was, a man would not be justified in drilling any more wells on plaintiff’s land. The court canceled the lease, except as to a tract having a radius of 200 feet surrounding the producing well.
The judgment was correct, whether based on plaintiff’s or on defendants’ theory of the case. A lessee may not hold an entire quarter section of land with a single producing well after expiration of term, any more than he may do so before expiration of term. The implied covenant fairly to exhaust capability of the land to produce mineral, subsists. If the undeveloped portion of the land will not produce mineral in paying quantities, and the lessee would not be justified in drilling more wells, he may not continue to hold by virtue of a provision in the lease extending the term so long as oil or gas may be produced in paying quantities.
The judgment of the district court is affirmed. | [
-15,
122,
-43,
-116,
26,
96,
106,
-101,
89,
-87,
-11,
23,
-19,
-37,
28,
57,
-126,
121,
116,
106,
-105,
-77,
7,
81,
-105,
-13,
81,
-39,
-72,
92,
-42,
85,
12,
32,
-54,
85,
70,
0,
65,
-36,
-114,
-123,
-103,
108,
-55,
0,
52,
59,
112,
15,
97,
-115,
-13,
47,
25,
-57,
41,
44,
-53,
61,
89,
112,
-86,
-123,
15,
0,
3,
69,
-108,
-57,
-8,
94,
-112,
-79,
8,
-24,
114,
38,
-60,
116,
15,
-69,
44,
34,
102,
1,
124,
-17,
108,
24,
14,
-34,
-115,
-90,
-64,
24,
-117,
66,
-98,
-99,
124,
4,
-91,
118,
-18,
-107,
94,
-4,
23,
-109,
-42,
-95,
15,
97,
-100,
89,
-21,
-125,
21,
100,
-51,
-94,
92,
71,
112,
-97,
15,
-70
] |
The opinion of the court was delivered by
Johnston, C. J.:
In this action James M. Smith sought to enjoin the board of county commissioners of Reno county from giving effect to an order of the board vacating a township highway. The petition presented by the plaintiff was attacked by a general demurrer which the court sustained, and from the ruling plaintiff appeals.
In his petition he alleged that he is the owner of a tract of land containing seven and one-half acres situated on the highway vacated which is occupied by himself and family as a homestead. He alleged that a petition was presented to the board signed by resident householders, eighteen in number, asking for the vacation of the highway. Based on this petition the board appointed three commissioners to view the road and report on the proposed vacation. After notices had been posted, a view was made by the commissioners and a written report filed to the effect that they took into consideration the utility, convenience, inconvenience and expense which would result to the individuals as well as to the public from the vacation of the road, and they recommended that the prayer of the petition should be granted and the road vacated for the protection and benefit of the general public. Later the board met and approved the report of the viewers and ordered the vacation and the closing of that portion of the road north of the A. T. & S. F. Railway Company, and was proceeding to put the order into effect when this proceeding was begun. He further alleged that he is engaged in the dairy business and uses the land for. dairying and gardening purposes, and that the closing of the road will seriously affect his business and occasion a heavy loss to him. He stated that the closing of the road will leave him without egress from his land north across the railroad tracks to a certain road which leads to the city of Hutchinson, and the closing of the road will depreciate the value of his premises at least fifty per cent. It is further stated that this township road has been open and maintained across the Santa Fe railroad tracks for about thirty-five years, is a well-traveled thoroughfare and is convenient for the use of the public, and that 140 persons within the township had signed a remonstrance against the closing of the road. He alleged that the railway company has without right taken possession of a part of this public highway and closed the same and is constructing tracks across the road. There is an allegation that several of the persons who signed a petition to close the road do not reside in the vicinity thereof and are not competent petitioners. That only five of those who signed live in the vicinity of the road, and he designates a number of petitioners who reside at different named places who are competent to sign, five in number, and that all the others reside in Broadview addition to the city, an addition not within the corporate limits of Hutchinson, and that none of these signers use the road and were not competent signers. He further alleged that the purpose in closing the road was not for the benefit of the public, but for the specific purpose of benefiting the railway company, and that the order of the board is void because no legal reason exists for closing it.
The averments of the petition disclose that the preliminary steps in the matter were regular and taken in conformity with the requirements of statutes for the vacation of roads. The petition upon which the board acted was signed by the requisite number of house holders of the township. It was found by the board to be sufficient. Commissioners were then appointed to view the road and after due notice the view was made and the commissioners reported in favor of the vacation. The report was approved by the board and the order of vacation made. It does not appear that plaintiff appeared before the board to question the proceedings, nor did he appeal from the order directing the vacation. After all proceedings had been taken and the final order made he brought this action to enjoin the enforcement of the order, and his main ground of attack is that the petitioners did not reside in the vicinity of the road. His pleading reveals that the petitioners resided in the township and not distant from the road. Other householders may have resided nearer the road than some of the petitioners, but the question of whether they resided in the vicinity was one to be determined by the board, and it found them to be legal petitioners. The subject was within the jurisdiction of that tribunal, and even if there were irregularities in the proceedings or mistakes of judgment, their order would not be open to collateral attack. (Willis v. Sproule, 13 Kan. 257; State v. Horn, 34 Kan. 556, 9 Pac. 208.) In the vacation of a road the board exercises legislative and administrative functions, and in some respects acts in a quasi judicial capacity. One of the questions it had to determine was whether the petitioners resided in the vicinity of the road, and assuming that some of them resided some distance from the road, it does not establish that they lived beyond its vicinity. It has been held that this expression is a relative one and may comprehend those living as far away as fifteen miles. (Canaday v. Scott County, 104 Kan. 785, 181 Pac. 121.) On the facts pleaded and of which judicial notice may be taken, it cannot be held that the petitioners resided beyond the vicinity of the road. There is no claim that the board acted in bad faith or was guilty of fraud in its action, and the subject being within its jurisdiction, its decision approving the report of the viewers that considering the “utility, convenience and inconvenience and expense which will result to individuals as well as to the public, if such a road shall be vacated, we hereby report that such road as described in such petition should be vacated for the protection and benefit of the general public,” from which no appeal was taken, is beyond the control of the courts. (Willis v. Stafford, 84 Kan. 570, 114 Pac. 854; Evans v. Edelbrock, 106 Kan. 233, 187 Pac. 664.) While the vacation of the road is a matter of some inconvenience to plaintiff in going to the city of Hutchinson, it is apparent that he is not without access to a highway reaching that place, and at the most it only lengthens the distance he is to travel to the city. It is an inconvenience sustained by others of the public, and it is urged that he does not sustain a special injury or have a special interest warranting the maintenance of an action by him. This question it is unnecessary to decide. Assuming that he has an interest, it is clear that the findings and order of the court are binding upon him, and that his petition fails to show a right to an injunction.
Something is said to the effect that the order was made for the benefit of the A. T. & S. P. Railway Company, and in his brief he states that that company has constructed many tracks across the road without condemnation or right. The railway company which had a right of way across the road could build additional tracks on its right of way without condemnation proceedings. It is said that the moving of cars back and forward over these tracks rendered the crossing a dangerous one, and was one of the reasons that prompted the petition for vacation and the order that was made. The matter of convenience and public welfare in this and other respects was submitted to the judgment of the board, and under the circumstances their order is binding and final. Not being a party to the action, the rights and responsibilities of the railway company over the crossing are not open to consideration. Neither are the township officers, upon whom the duty of closing the roads rests, parties to the action. The board has performed its functions in the vacation of the road, and since final action has been taken by it, it is difficult to see what effect an order of injunction against the board alone would have.
The order is deemed to be valid and the judgment of the court denying the injunction is affirmed. | [
-13,
-20,
-76,
-68,
42,
64,
18,
-117,
89,
-69,
-91,
-45,
-83,
-120,
4,
51,
-17,
61,
-44,
107,
-10,
-77,
87,
-94,
19,
-13,
-45,
-51,
-70,
93,
-26,
71,
78,
48,
10,
-107,
38,
72,
79,
92,
-50,
-121,
-119,
-7,
89,
0,
60,
107,
22,
79,
-107,
62,
-29,
46,
24,
-13,
-87,
44,
-53,
-84,
-103,
-15,
-70,
-99,
95,
5,
17,
96,
-97,
-125,
-64,
43,
-104,
49,
-120,
-8,
87,
-74,
-105,
-12,
77,
-101,
40,
-66,
99,
1,
116,
-49,
-20,
-104,
14,
-6,
13,
-26,
-30,
25,
91,
96,
-106,
-103,
121,
18,
74,
126,
-25,
4,
89,
44,
-124,
-118,
-78,
-77,
-33,
60,
-120,
72,
-29,
33,
48,
97,
-61,
-46,
94,
69,
48,
27,
79,
-112
] |
The opinion of the court was delivered by
Harvey, J.:
This is a suit by resident taxpayers of a road benefit district to enjoin the county commissioners of Wyandotte county from improving a road. The trial court sustained a demurrer to the petition, and plaintiffs have appealed. The Union Pacific Railroad Company was made a party defendant and filed a separate demurrer; but this branch of the case is not before us.
A petition in due form, signed by the requisite number of property owners in the proposed benefit district, was presented to the board of county commissioners, praying for the improvement by grading, draining and hard-surfacing of what is known as the Golden Belt or Kaw Valley road from Muncie to Bonner Springs. The petition was considered and approved, and the necessary steps were being taken to make the improvement, when this suit was brought. For some three miles the route of the road is upon the right of way of the Union Pacific railroad. It is the contention of plaintiffs that the proposed route for such distance is not a regularly laid out, dedicated and established highway, and that defendants have no authority in law to make such improvements on any other than a regularly dedicated or established highway.- The pertinent statute reads:
"... When the petition filed for the improvement of a road describes a road which has not been legally established as a public road, . . . the board of county commissioners shall by order of said board lay out, alter or widen a public road and may vacate an existing road. All land required for the laying out, widening or altering of a road shall be acquired by the board of county commissioners by purchase or by donation: Provided, That if the owner or owners of the land shall refuse to sell or donate said land, the board of county commissioners are hereby authorized to exercise the right of eminent domain in the following manner: ...” (R. S. 68-703.)
It is the rule in this state, and generally, that in the ordinary proceedings for laying out a road the same cannot bd located longitudinally upon the right of way of a railroad. (U. P. Rly. Co. v. Kindred, 43 Kan. 134, 135, 23 Pac. 112; State, ex rel, v. Paul, 112 Kan. 826, 832, 213 Pac. 165, and authorities there cited.)
But the petition in this case, among other things, alleges in substance that Wyandotte county is lessee for highway purposes from the Union Pacific Railroad Company of the portion of the road proposed to be improved upon its right of way, under a long term lease at a nominal rental, which lease contains a provision in substance that it may be terminated by the lessor upon giving notice for a stated time, and if so terminated the lessor shall then provide the county with other right of way for a highway and put it in as good condition as the present highway is in at the time of terminating such lease.
The petition in this case also alleges that the road proposed to be improved is “the main traveled road leading west from Kansas City.” It was said in oral argument that it has been used as a highway since the early settlement of the state. The legislature has repeatedly recognized this as a highway, and authorized its improvement (Laws 1899, ch. 276; Laws 1901, ch. 300; Laws 1911, ch. 329), and it was said in oral argument that much money has heretofore been spent upon grading, draining and improving the highway. The existence of-this highway and some of its history were discussed in Dubourdieu v. Delaware Township, 106 Kan. 650, 656, 189 Pac. 386. But plaintiffs argue that if the county commissioners have no authority to lay out a road longitudinally upon the right of way of the railroad (U. P. Rly. Co. v. Kindred, supra), it necessarily follows that no such highway could be established by prescription. For the purposes of this case this argument may be con ceded, but the only party who could complain about that would be the railroad .company. The right of way of the railroad company at the place under consideration is 400 feet wide. It does not need at this time fill of the land for its railroad purposes. It has been specifically authorized by congress to grant the use of a part of its right of way for highway purposes. (41 U. S. Stat. 304, act of Oct. 22, 1919; 41 U. S. Stat. 621, act of May 25, 1920.) It has consented to the use of a portion of its right of way not now needed for railroad purposes for a highway by executing a lease for that purpose to the board of county commissioners. From the very nature of things likely it will be many years before the railroad company will need this- particular part of its right of way for railroad purposes, if it ever does. We regard the arrangement the county commissioners have made with the railroad company as being a substantial compliance with the statute. (R. S. 68-703.)
But plaintiffs contend that the lease from the railroad company to the county is ultra vires, for the reason that it provides that if and when the lease is terminated the lessor will provide other right of way for a highway and improve it in as good condition as the highway then is; and plaintiffs contend that the present contemplated improvements would cost $40,000 per mile; that if the lessor were to carry out this provision of the lease it would have to do so at an expense of more than $120,000; that the nominal rent which it receives would not compensate the lessor or justify it in making such an expenditure. We need not decide that question. The parties who would be bound by such a decision are not before the court. The lease does confer a present right to use this portion of the right of way for highway purposes. We shall not presume that it is invalid or that it was not entered into in good faith. Should a controversy later arise over this provision in the lease, no doubt it can be determined equitably among the parties.
Some other questions are argued, but in view of the conclusion’ reached it will not be necessary to discuss them.
The judgment of the court below is affirmed. | [
-11,
-24,
-11,
92,
-50,
-64,
16,
-118,
65,
-79,
101,
83,
-17,
-54,
4,
61,
-70,
63,
112,
59,
85,
-78,
71,
-62,
50,
-77,
-5,
79,
-15,
89,
102,
-58,
76,
16,
-118,
-107,
70,
64,
13,
92,
-50,
6,
11,
-52,
65,
-32,
60,
99,
18,
79,
-11,
15,
-13,
40,
24,
-29,
-87,
44,
91,
-85,
89,
-16,
-2,
-41,
126,
6,
1,
4,
-104,
-125,
-56,
42,
-104,
49,
10,
-88,
87,
-90,
-106,
118,
9,
-39,
8,
-90,
99,
33,
52,
-17,
-24,
-104,
14,
-48,
13,
-90,
-126,
24,
-54,
33,
-106,
-99,
125,
86,
71,
122,
-25,
5,
91,
76,
5,
-53,
-78,
-79,
-49,
-12,
-124,
65,
-17,
1,
16,
97,
-53,
-46,
94,
71,
48,
27,
-113,
-78
] |
The opinion of the court was delivered by
Burch, J.:
Plaintiff, a soldier of the World War, petitioned for a writ of mandamus to compel the compensation board to allow and pay his claim for compensation. An alternative writ was issued, and the board moves to quash the writ.
The board disallowed plaintiff’s claim for the reason he failed to establish the fact he was a resident of the state when be enlisted. Plaintiff appealed to the district court, and after a trial the court adjudged he was a resident of the state when he entered the service, and was entitled to benefit of the compensation law, so far as residence was concerned. The adjudication was limited to the fact of residence, and no order directed to the board was made. The board then wrote plaintiff’s’ attorney as follows:
“You are advised that through an error the official notice of disallowance stated the claim was refused on the ground of residence, while in addition the records indicated he had left the service and was tendered an undesirable discharge.
“As the Kansas compensation law requires that the soldier shall have received a desirable or honorable discharge from the service, the Kansas compensation board is refusing to pay his claim. It is definitely stated in the journal entry that the court passed on the question of residence only.”
This action followed. The petition and the alternative writ based upon it do not charge that plaintiff was honorably discharged, and the ground of the motion to quash is that the alternative writ does not state facts sufficient to warrant granting the relief prayed for. Plaintiff contends that, since the board has denied' his claim on a specified ground, and has put him to the expense of a successful appeal to the district court, it may not now assign a different reason for rejecting his claim. Conceding correctness of the contention, plaintiff comes to this court for relief of an extraordinary kind, the granting of which rests in the sound judicial discretion of the court; and plaintiff ought not to prevail without showing he possesses the primary qualification of an applicant for compensation, an honorable discharge. (R. S. 73-102.)
The motion to quash is allowed. | [
-112,
-22,
-59,
29,
11,
97,
42,
-94,
97,
-109,
39,
115,
103,
74,
5,
105,
106,
45,
97,
121,
-33,
-73,
87,
-55,
114,
-77,
-7,
85,
-80,
79,
-16,
20,
79,
-80,
34,
-43,
100,
-53,
-123,
92,
-58,
-124,
9,
-56,
-47,
-56,
48,
43,
92,
11,
17,
-97,
-13,
42,
24,
-61,
-120,
44,
91,
-72,
-63,
-47,
-118,
5,
-1,
1,
35,
6,
-100,
67,
80,
-82,
-104,
24,
1,
-23,
115,
54,
-122,
52,
35,
-103,
33,
102,
98,
51,
53,
-24,
-68,
-71,
46,
-72,
-113,
-26,
-109,
80,
74,
40,
-106,
-103,
125,
52,
79,
124,
-22,
12,
30,
44,
15,
-49,
-90,
-75,
-49,
36,
-106,
-61,
-25,
-125,
-76,
32,
-52,
-94,
92,
67,
122,
-101,
-113,
-68
] |
The opinion of the court was delivered by
Mason, J.:
A conviction on a charge of murder having been affirmed, a motion for a rehearing is presented, in which is reargued the question of the admissibility of the evidence that after the time when the stock, the obtaining of which the state regards as the motive for the crime, is said by the defendant to have been transferred by him on the books of the corporation, the victim showed by his statements to a prospective purchaser that he still had it. The matter has been reconsidered and the court remains satisfied with the ruling, upon the grounds stated in the original opinion.
There is also reargued the admissibility of the letter purporting to come from one who had purchased the stock from the victim, and upon this issue it is necessary that the language of the opinion be modified. This letter was upon blank paper, all of it, including the signature, being written with a typewriter. It purported to come from one Westerhaven and to account for his ownership of the stock by purchase from a man named Merton. In the original opinion it was said there was expert evidence that this letter was written on a typewriter used at the Uhls sanitarium. That statement was based on a misconception of the evidence, and is withdrawn. The defendant’s contention in this regard was also inaccurately stated. However, the court is still of the opinion that the admission of the letter did not constitute error. But the grounds of the ruling require a somewhat fuller statement than that made in the original opinion.
In the state’s brief it is said that the purpose of the expert testimony, which it introduced, was to show that the Westerhaven letter was written on the typewriter at the Uhls institution. In his direct examination the expert witness was shown the Westerhaven letter and also two letters typewritten on Uhls company letter heads and proved to have been signed by the defendant. He pointed out a number of peculiarities common to all three, such as the spacing, punctuation, arrangement of paragraphs, manner of correcting wrong letters, and the partial perforations made by punctuation marks. He was not asked whether in his opinion the typewriting was done by the same person or on the same machine, but his testimony warranted the inference that such was the case as to the person, and at the time the opinion was written this was thought to be true also as to the machine — -a matter it will not be necessary to pass upon.
On cross-examination the witness was shown an additional letter which the defendant’s amanuensis and' office employee, testifying for the state, said she had written. He pointed out similarities (as well as some differences) of the kind already indicated between this letter and the others, and on being asked what he would say as to who wrote this letter and the Westerhaven letter answered, “I think probably they were written by the same person.” He also testified that while the three other letters shown him were written on a Royal machine, the Westerhaven letter was written on an Underwood. Speaking of the last letter shown him, he gave this testimony:
“A. The date line is one space higher and much nearer the left hand margin than it is in any of the other exhibits.
“Q. But written on the same machine? A. Yes, sir.”
Talcing the testimony as a whole, it must be regarded as showing affirmatively that the Westerhaven letter was not written on the same machine, or the same make of machine, as the other three. But it was a fair question for the consideration of the jury whether there were such similarities between that letter and the two submitted by the state as standards of comparison as to warrant a finding that they were written by the same person. And'if they were written by the same person the inference that the defendant was their author could readily be drawn. The defendant’s amanuensis testified that while she usually wrote his letters he was reasonably expert in operating the typewriter and sometimes wrote them himself. While the expert witness was not asked to give an opinion, and gave none, as to whether the Westerhaven letter was written by the same person who wrote the two signed by the defendant and offered by the state as standards of comparison, he called attention to the various similarities that might lead to that conclusion, and it was competent for the jurors to form their own judgment concerning the matter. (Joseph v. National Bank, 17 Kan. 256, cited in Baird v. Shaffer, 101 Kan. 585, which is annotated in L. R. A. 1918D 638. See, also, note, 62 L. R. A. 867.) The expert’s testimony that he thought it probable the same person wrote the Westerhaven letter and the letter shown to have been written by the defendant’s amanuensis is not conclusive upon the state. The jurors were the judges of that matter. It may be noted that the Westerhaven letter and the two letters produced by the state as standards of comparison were submitted to the expert witness for his examination on the morning of the day before he was called to the stand. The letter shown to have been written by the amanuensis was first submitted to him as a part of the defendant’s cross-examination, and his scrutiny of it may well have been less searching than in the case of the other documents.
Moreover, the situation with regard to the admissibility of the Westerhaven letter in evidence is quite different from what it would be if, for instance, the defendant were being prosecuted on a charge of having written it. The letter was a mere episode, an incident in the trial, having a possible bearing on the case as one of a number of circumstances tending to show his connection with the murder. That such a letter was received is not questioned. If it was genuine, if it was what it purported to be, it supported the defendant’s story and made for his acquittal. If it was written by the defendant or by his procurement it showed an effort on his part to manufacture evidence in his favor. It is intrinsically improbable that it had any origin other than one of these, although it is possible. Its history was a fair matter for the consideration of the jury in the light of all the information available concerning it. In the defendant’s brief it is said that “the letter should not have been introduced unless it was proven by direct and certain testimony to have been written by the appellant.” This we regard as an overstatement. The authorship or authenticity of a letter “may be proved by indirect or circumstantial evidence, as other facts.” (3 Jones’ Commentaries on Evidence, § 583; see, also, 4 Wigmore on Evidence, 2d ed., §§ 2131, 2148, 2149.) And the rule as to the degree of certainty required is not different from that in relation to any other item in a series of circumstances relied upon to establish an ultimate fact.
“It is not necessary that it should be proved beyond a reasonable doubt that the letter is that of the alleged author, but evidence which, if uncontradicted, would satisfy a reasonable mind of that fact is sufficient to authorize the admission of the letter, and whether a sufficient foundation has been laid for the admission of the evidence is a matter addressed to the discretion of 'thg trial court.” (22 C. J. 907.)
In order to warrant a conviction every element of a crime must of course be proved beyond a reasonable doubt, but it does not follow that every fact relied upon as tending to show guilt must have been established by evidence of that high degree of persuasiveness, although there are cases going that far. (See 16 C. J. 766, note 79.) What we regard as the better rule, as applied to a situation such as that here presented, is thus stated:
“. . . Where the prosecution relies upon circumstantial evidence, it is not necessary that each circumstance relied upon shall be proved beyond a reasonable doubt; but all the circumstances should be considered, and if those actually proved taken together are sufficient to satisfy the jury of defendant’s guilt beyond a reasonable doubt, they should not acquit merely because one or more of the circumstances relied upon by the prosecution is not thus proved.” (16 C. J. 766.)
“It is not necessary that each particular fact advanced by the prosecution should be proved beyond a reasonable doubt; it is sufficient to warrant a conviction if, on the whole evidence, the jury are satisfied beyond such doubt that accused is guilty.” (16 C. J. 780.)
The objection urged to the admission of the Westerhaven letter is that there was no evidence, or no sufficient evidence, that the defendant wrote it. It has been held in one case that the fact of the defendant in a criminal action having fabricated evidence in his favor is not admissible against him unless he has used it. (Baker v. State, 82 Miss. 84.) We regard it as competent regardless of that consideration, and the authorities support that view. (State v. Wilson, 108 Kan. 433, 195 Pac. 618; 16 C. J. 541, 555-6; 1 Wigmore on Evidence, 2d ed., § 278, p. 569.) In note 3 on the page just cited the Mississippi case referred to is characterized as unsound. Unsuccessful efforts of a defendant to induce false statements in his behalf are often shown against him. See cases in the American Digests under Criminal Law, 351(8); also Dickey v. State, 86 Miss. 525.
We think there was sufficient evidence to justify submitting the Westerhaven letter to the jury; that no established rule of evidence was thereby violated; that it brought to the knowledge of the jury a fact that unquestionably existed — the receiving of the letter — and that could not be injurious to him unless the jury found that the evidence fairly connected him with it.
The motion for a rehearing is overruled. | [
50,
-4,
124,
-115,
26,
96,
42,
-6,
81,
-123,
-89,
115,
-83,
-49,
5,
121,
115,
31,
-43,
107,
-34,
-105,
7,
-29,
-46,
-13,
115,
-43,
48,
72,
-20,
94,
77,
32,
-54,
21,
-26,
-54,
-61,
22,
-50,
37,
-88,
-30,
121,
80,
48,
61,
112,
75,
113,
-34,
-29,
38,
30,
-61,
41,
40,
106,
61,
80,
-71,
-69,
15,
-17,
22,
-78,
34,
-36,
-81,
-40,
46,
-112,
49,
1,
-23,
112,
-74,
-122,
-12,
111,
-71,
8,
98,
34,
25,
93,
-19,
-88,
-104,
47,
110,
-115,
-89,
-111,
72,
65,
32,
-107,
-35,
116,
80,
38,
116,
-18,
29,
28,
108,
1,
-113,
-94,
-127,
79,
124,
28,
-65,
-22,
-95,
48,
96,
-52,
58,
93,
119,
120,
25,
-113,
-76
] |
The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the bank commissioner to issue a certificate of authority to the Lyndon Farmers Union Bank, a partnership composed of plaintiffs, to do business as a private bank.
Evidence has been taken from which the court concludes there is no need of another bank at Lyndon. The banks already in existence there furnish adequate banking facilities for the territory which they serve. From the standpoint of general banking welfare of the community, the establishment of another bank there would be economically unsound, and the bank commissioner is justified in refusing a certificate to plaintiffs, if his view of the law is correct. On the other hand, farmers in and about Lyndon desire to patronize a bank which is owned and operated by farmers. Plaintiffs are responding to that demand, and they are qualified to receive a certificate of authority to conduct a private bank, if their view of the law is correct. The parties agree that the business of banking is subject to regulation in the interest of public welfare. The questipn involved is whether the business is so regulated that private, unincorporated banks are prohibited.
The first general banking law was enacted in 1891. The two subjects of the act were organization and regulation of banks. As indicated in the opinion in the case of Citizens Bank v. Needham, 120 Kan. 523, 244 Pac. 7, regulation of the corporate form of business association was a matter of growth and development. Early conceptions were crude, but the legislature of 1891 visualized the advantages to the banking business of corporate organization. Therefore, on the side of organization, the statute took the form of an act for the incorporation of banks. It was, however, merely an enabling act. Private banking was as well established as corporate banking. There were 414 banks in the state; 165 of them, nearly forty per cent, were private banks, and no inference is derivable from any provision of the act or from the act as a whole that new banks were forbidden to open unless they were incorporated.
On the side of regulation, the office of bank commissioner was created, and the system of regulation which has been developed to its present efficiency was outlinéd. Two features of the. system were examination by the bank commissioner and quarterly reports to him; and the condition of banks already in existence, including private banks, was a matter of primary concern. Banks already in existence were placed in the same position as banks newly organized under the provisions of the act relating to incorporation, and were obliged to .apply for certificates of authority to do business. Section 5 of the act related to granting certificates of authority to do business to banks newly incorporated. The president or cashier was required to transmit to the bank commissioner a verified statement containing certain information. The bank commissioner was empowered, on receipt of the statement, to examine the bank as if it were already engaged in the banking business, and if satisfied that necessary requirements had been met, to grant a certificate of authority to do business. Section 18 prescribed the form of official statement of resources and liabilities to be made quarterly, and oftener if required. Section 17 dealt with the existing situation:
“It shall be unlawful for any individual, firm or corporation to transact a banking business, or to receive deposits, for a longer period than six months immediately after the passage and approval of this act, without having first transmitted to the bank commissioner a verified statement of the resources and liabilities of such individual, firm, or corporation; said statement shall be made in accordance with sections 5 and 18 of this act. The bank commissioner shall thereupon have power to examine into the condition and affairs of such bank, and shall within thirty days from the receipt of such statement make such examination, and if such bank has in all respects complied with the provisions of law applicable thereto, said commissioner shall issue to such individual, firm, or corporation, under his hand and seal, a certificate showing the amount of capital paid in, and that the same is authorized to transact a general banking business, as provided by this act. Any persons violating the provisions of this section, either individually or as an interested party in any association or corporation, shall be guilty of a misdemeanor, and on conviction thereof shall be fined in the sum not less than three hundred dollars or more than one thousand dollars, or by imprisonment in the county jail not less than thirty days or more than one year, or by both such fine and imprisonment.” (Laws 1891, ch. 43, § 17.)
Reference w.as made to sections 5 and 18 to avoid repetition. Both of those sections called for action by the bank's president or cashier. Neither section could be complied with literally by a private banker who did not have an agent called president or cashier, and it was contemplated that both sections would be adapted in a manner to accomplish the purposes of section 17.
Sections of the act besides section 17 applied specifically to private banks, and section 35 read as follows:
“Any individual, firm or association who shall receive money on deposit, whether on time certificates or subject to check, shall be considered as doing a banking business, and shall be amenable to all the provisions of this act.”
(Laws 1891, ch. 43, § 35.)
The law of 1891 was superseded by the banking act of 1897. At that time there were 377 banks in the state, and 102 of them were private banks. The.general scheme of the new law was the same as that of the old. Throughout the act private banks were fully recognized, and there was no suggestion anywhere in the statute that in the future none but incorporated banks could be given certificates of authority to do business. Banking was defined to include private banking. Name and capital of private banks were regulated. The word “state” could not be used in the name, and the words “private bank” were required to be placed on all statements, advertisements, and stationery. Lists of owners analogous to lists of stockholders were required to be kept in the bank subject to inspection, and to be filed with the bank commissioner, after the manner of incorporated banks. Provision was made for ownership by the bank in its designated name of all property devoted to banking, for conservation of bank assets to discharge bank liabilities in preference to personal liabilities, and private bankers were forbidden to use bank funds in private business. In certain provisions, the term bank applied to private as well as incorporated banks. In others, private banks and corporate banks, private owners and corporate directors, private managers, officers and agents, and corporate officers and agents, were placed in the same categories. Partners were subjected to the same liabilities as corporate officers, and private banks were otherwise recognized as integral parts of the state’s banking system.
Private banks were authorized to incorporate, but were not required to do so. Like the act of 1891, the portion of the act of 1897 relating to incorporation of banks was an enabling act, which persons desiring to engage in banking were privileged to utilize, but were not obliged to utilize. Section 5 of the act of 1891, amended only in respect to amount of .capital paid in, became section 5 of the act of 1897. Section 18 of the act of 1891, amended to permit the bank commissioner to prescribe forms for quarterly statements and in other particulars, became section 17 of the act of 1897. Section 17 of the act of 1891, copied above, became section 16 of the act of 1897, and read as follows:
“It shall be unlawful for any individual, firm or corporation to transact a banking business, or receive deposits, without having first transmitted to the bank commissioner a verified statement of the resources and liabilities of such individual, firm or corporation; said statement shall be made in accordance with sections 5 and 17 of this act. The bank commissioner shall thereupon have power to examine into the condition and affairs of such bank, and shall within thirty days from the receipt of such statement make such examination; and if such bank has in all respects complied with the provisions of law applicable thereto, said commissioner shall issue to such individual, firm dr corporation, under his hand and seal, a certificate showing the amount of capital paid in and that the same is authorized to transact a general banking business, as provided by this act. And it shall be unlawful for any individual, firm or corporation to transact a banking business without having first received such certificate from the bank commissioner. Any person violating the provisions of this section, either individually or as an interested party in any association or corporation, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined in a sum not less than three hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail not less than thirty days nor more than one year, or by both such fine and imprisonment.” (Laws 1897, ch. 47, § 16.)
The six-months period fixed by section 17 of the act of 1891, in which then-existing banks were obliged to come under the banking law, became functionless as to such banks at the end of the period, the limitation was dropped from section 16 of the act of 1897, and that section had no future office to perform except with respect to new banks, including private banks. Reference to sections 5 and 17 served the same purpose as the reference in the act of 1891 to sections 5 and 18 of that act. The result is, institution of private, unincorporated banks was permitted by the act of 1897, which, so far as it relates to that subject, has not been expressly repealed, and has not been modified by any subsequent statute specifically amending the banking act.
The subsequent history of private banking is not fully disclosed by the evidence. Doubtless because of the manifest superiority of corporate form of management, private banks which desired to continue in business incorporated. Some nationalized. Some discontinued. Some new private banks were instituted, and there are now two private banks in the state, the Commercial Bank of Wichita, and the Bank of Severance. The subject of private banking continued, however, to be of sufficient importance to engage legislative attention. When the bank guaranty act was passed in 1909, its application was limited by the title and by the first section to incorporated banks, and section 8 provided as follows:
“Any private bank or national bank having the required capital and being otherwise qualified, may reorganize as a state bank, or any newly organized bank taking over the business of another bank, otherwise qualified, may immediately become a guaranteed bank by depositing bonds or money and paying its assessments and otherwise complying with the provisions of this act.” (Laws 1909, ch. 61, § 8.)
In 1911 private banks were recognized by an amendment to the law of 1897, relating to the giving of preference to any depositor or creditor (Laws 1911, ch. 65, § 1; R. S. 9-142), and by an amendment to the bank guaranty law, which reads in part as follows:
“Each guaranteed bank, and each state or private bank not guaranteed by this act, shall keep a correct record of the interest rate and terms of each deposit on which it has paid or agreed to pay interest, and shall make a statement thereof under oath to the bank commissioner quarterly.” (Laws 1911, ch. 61, § 2.)
At the special session of the legislature in 1898 the general corporation law was amended, and a charter board was created to pass on applications for charters and grant certificates of authority to form private corporations. The attorney-general, the secretary of state and the bank commissioner were designated members of the charter board. In 1907 the general corporation law was revised, and the following was enacted:
“The charter board shall make a careful investigation of each application, and shall inquire especially with reference to the character of the business in which the proposed incorporation is to engage, and if the board shall determine that the business or undertaking is one for which a corporation may lawfully be formed, and that the applicants are acting in good faith, the application shall be granted, and a certificate- setting forth that the application has been approved shall be indorsed upon the application and signed by the members of the charter board approving the same.” (Laws 1907, ch. 140, § 10.)
In 1911 the following proviso was added to the section just quoted:
“Provided, That when the application is for a bank charter the charter board shall also make a careful examination as to the financial standing and character of the incorporators, also of the public necessity of the business in the community in which it is sought to establish the same, and shall determine whether the capital for which said company is sought to be capitalized is commensurate with the requirements of law, and if the board shall determine either of said questions unfavorably to said corporation, it shall refuse said charter.” (Laws 1911, ch. 125, § 2; B,. S. 17-403.)
Defendant contends this proviso, which became effective May 22, 1911, repealed by implication the banking law of 1897, so far as it pertained to formation of private banks, and thereafter no unincorporated bank could lawfully receive a certificate to do business.
The constitutionality of the 1911 proviso was promptly challenged in an action of mandamus in this court to compel the charter board to approve an application for a bank charter notwithstanding the board’s findings against public necessity for the bank. In a decision rendered on October 7, 1911, the proviso was upheld, and a writ of mandamus was denied. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80.) One of the contentions made against the law was that it deprived the applicants of privilege to engage in a lawful business. The court met the contention with what seemed at the time to be a valid response based on a survey of the pertinent statutes:
“Tested by the foregoing principles the act assailed is the product of a valid exercise of the police power. It does not prohibit persons from engaging in the business of banking. The plaintiffs may, if they choose to forego the advantages of corporate organization, open a private bank. The statute merely says that the establishment of banking corporations in a given community will not be permitted beyond the public necessity of the business in that community.” (p. 606.)
The law was sustained on the ground that unrestricted competition between banks in a given community is detrimental to the public welfare, and may be suppressed. The applicants contended private banks could be established without regard to public necessity for additional banking facilities, and consequently the statute did not tend to prevent undiie competition. The premise of the contention was tacitly conceded, but the court said:
“Competition by banks holding charters under the corporation act is certainly forestalled, and doubtless in the judgment of the legislature serious danger from the opening of private banks throughout the state is not to be feared because they must operate under all the restrictions and handicaps of incorporated institutions without possessing any of the privileges and advantages which those institutions enjoy.” (p. 610.)
The question whether new private banks were forbidden by the 1911 proviso was not the matter immediately in issue in Schaake v. Dolley, and the subject is not stare decisis because of the decision in that case. It became necessary to the decision, however, for the court to discuss the bearing of the proviso upon the status of private banking in the state of Kansas. The case was argued and the decision was rendered in the midst of the social and economic conditions which gave rise to the proviso. The court endeavored to apprehend the legislative intention with respect to the relation of the proviso to the banking law. The conclusion was, organization of private banks was not affected. The bank commissioner was a member of the charter board whose action was sustained and, as indicated above, the legislature which enacted the proviso passed two acts relating to private banking. The decision was rendered nearly fifteen years ago. Notwithstanding the decision was open sesame to establishment of private banks by incorporators to whom charters were denied, private banks did not become public nuisances, and they were not responsible for recent disasters in the banking business, attributed by the bank commissioner to “too many banks, too few bankers.” Since the decision was rendered, bank commissioners have been transmitting reports to governors, governors have been transmitting messages to legislatures, legislatures have been meeting and adjourning, and the statute book is still barren of any act stating that private banking is forbidden in Kansas, or stating that either the charter board or the bank commissioner has authority to pass on the public necessity of a private bank in a community, as a prerequisite to issuing a certificate of authority to do business.
Repeal by implication is not to be lightly imputed. A statute is not to be regarded as repealed by implication from a later act, unless the later act is so incongruous with the earlier one that they cannot be harmonized by fair interpretation and both cannot be given effect. In this instance there is no repugnancy between the proviso attached to the corporation act and the sections of the banking act relating to private banking. They concern different kinds of banks, those which are incorporated and those which are unincorporated, two classes of institutions which have run their individual courses side by side in separate channels throughout the entire period of the state’s history.
Defendant contends that if the 1911 proviso did not repeal by implication sections of the banking act relating to private banking, the proviso should be construed in such a manner as to make it applicable to the institution of private banks. Plaintiffs are not applicants for a corporate charter, and are not required to obtain from the charter board permission to organize a corporation. The charter board has nothing to do with granting certificates authorizing private banks to transact business. The bank commissioner has no authority as bank commissioner to investigate the necessity in a community for an additional bank, corporate or private. The powers of the charter board and of the bank commissioner are those conferred upon them by law, and this court may not enlarge those powers.
Finally, the bank commissioner requests the court to deny the writ of mandamus by exercise of judicial discretion displayed in the interest of public welfare. In the case of Schaake v. Dolley the court endeavored to express its comprehension of the mischiefs which the legislature sought to remedy by the 1911 proviso. The remedy extended to check upon multiplication of incorporated banks only. Competition through installation of private banks was regarded by the legislature as negligible, or for some other reason was not regulated. The fact, if it be a fact, that conditions are now such that competition of private banks will become a public menace is ground for legislative action. For the court to deny the writ through exercise of discretion -would be to give indirect sanction to exercise by the bank commissioner of power he does not possess, and thereby to regulate in a special case a business which the legislature, with its eyes open, has left unregulated.
In denying authority to the flank commissioner to refuse plaintiffs a certificate to transact a general banking business, the court has merely expressed its view of the law. ■ The bank commissioner’s advocacy of a different view has been that of a public official acting conscientiously, and according to correct conceptions of duty, in discharging a grave responsibility.
The writ is allowed.
Harvey, J., not sitting. | [
-16,
106,
-16,
-4,
74,
102,
54,
58,
72,
-96,
-91,
115,
-23,
-54,
4,
97,
-10,
45,
84,
83,
-12,
-78,
23,
-55,
-46,
-13,
-7,
-51,
-78,
95,
-26,
95,
76,
16,
-54,
-47,
-26,
-40,
-61,
-106,
-114,
4,
11,
73,
-39,
-64,
52,
107,
82,
90,
85,
13,
-13,
60,
89,
-62,
41,
44,
75,
61,
113,
-15,
14,
-51,
85,
23,
49,
97,
-120,
7,
-56,
46,
24,
51,
8,
-24,
94,
-90,
-122,
84,
15,
89,
9,
50,
103,
3,
48,
-53,
-120,
-103,
6,
-38,
-97,
-122,
-112,
88,
-30,
42,
-68,
-97,
90,
16,
3,
-4,
-14,
-59,
-102,
108,
13,
-114,
-106,
-77,
-59,
127,
-101,
3,
-1,
103,
48,
113,
-62,
-14,
95,
-59,
122,
19,
-98,
-43
] |
The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover under the workmen’s compensation act. John Powell suffered an injury to his hand while unloading rails, by reason of which he was permanently partially disabled. After treatment for several weeks by the doctor of the company he was discharged from further treatment, and later executed.a release in consideration of the payment of $141.88. A year or more afterwards, demand for arbitration having been refused, this action was brought. The plaintiff alleged the nature and extent of the injury, the demand for compensation, the refusal of defendants to pay compensation, and the fact that he had been paid compensation to the amount of $75 during a period of four weeks following his injury. He therefore asked compensation to the amount of $2,905 less the $75 already paid to him, and also $150 for surgical attention and nursing.
Among other defenses the defendants set forth a settlement and compromise made with plaintiff and a release signed by him. In reply the plaintiff stated that he signed the release upon the theory that it was a mere receipt for money paid and was not intended to affect his right of recovery for the injury. He further stated that he did not know the extent of the injury at the time he signed the release, and that it has since developed that the injury is permanent and is a partial disability. It was further alleged that he is an illiterate man, and at the time the paper was executed it was represented by the defendants that it was a receipt for money only and not a release from further liability.
It is conceded that this was a court case and that a jury was called in an advisory capacity only. Upon the evidence submitted, the jury were instructed at length as to the issues involved in the action, including the question whether the release was obtained by false and fraudulent representations or that it was executed under a mutual mistake of fact. The jury were advised that before the release, which appeared to be valid on its face, could be overthrown it must be shown that the defendants or either of them falsely told the plaintiff or led him to believe that the release was only a receipt for money paid, and that plaintiff believed the representation to be true and was therefore deceived and induced to sign the paper. As to mutual mistake of fact, the jury were told that before the release could be overthrown it must be proven that at the time it was executed both plaintiff and defendants were mistaken as to the extent of plaintiff’s injury, and because of such mistake the release was entered into by the plaintiff. Special findings were submitted to the jury, which, with their findings, are as follows:
“1. Did the plaintiff at the time he signed the claimed release set up in defendants’ answer understand the character of said release and the force and effect of the memorandum on the back thereof? A. No.
“2. Were the plaintiff and defendant at the time the plaintiff was discharged by Doctor Hassig from further treatment mutually mistaken as to the extent and permanency of plaintiff’s injury? A. No.
“3. Is the plaintiff, on account of the injury to his left hand and as shown by the evidence, permanently partially disabled? A. Yes.
“4. Did Doctor Hassig, at any time after plaintiff’s injuries ever tell the plaintiff that his finger would entirely recover from the effects of the injury, and that his hand would be normal? A. No.
“5. At the time plaintiff signed the release in question, was there a mutual mistake of fact between the plaintiff and the defendant as to the nature and extent of plaintiff’s injuries? A. Yes.
“6. If you answer question No. 5 in the affirmative, then state fully of what such mutual mistake of fact consisted. A. The corroboration of testimony that they did not know.
"7. If you answer question No. 5 in the affirmative, then state fully what was said by plaintiff and defendant at the time the release was signed that caused or produced a mutual mistake of fact. A. Statements of both plaintiff and defendant that they were uncertain as to the results of the injury.
“8. At the time plaintiff signed the release in question, was he caused to sign the same by reason of any false or fraudulent statements made to him by the defendant? A. No.
“9. (No answer.)
“10. (No answer.)
“11. At the time the release in question was signed by plaintiff, did plaintiff have said release in his possession and did he know or have the opportunity to know what he was signing? A. Yes.
“12. Do you find that at the time plaintiff signed the release in question he could read printed and written matter? A. Yes.
“13. Did the plaintiff at and before the time of signing the release in ques tion, make any complaint or statement to the defendant that he did not understand or know what he was signing? A. No.”
With these findings the jury returned a verdict in favor of the plaintiff and against both defendants for $576. The defendants moved the court to set aside the answers to special questions 1, 3 and 5, on the ground that they were not supported by the evidence and were in conflict with it.
There was a further motion for judgment in favor of the defendants on the special findings returned by the jury. Defendants filed a motion for a new trial which was withdrawn from the consideration of the court by the defendants prior to the rendition of judgment. The plaintiff then moved the court to enter a judgment in his favor for $2,406. The court overruled the defendant’s motions and sustained the motion of the plaintiff and entered judgment in favor of the plaintiff for $2,406.
Three specifications of error are made, viz.: the refusal to set-aside the answers to questions 1, 3 and 5; the entering of judgment in favor of plaintiff, and the refusal to enter judgment for defendants. The first assignment of error is not open to consideration, a motion for new trial having been withdrawn, the trial court was given no opportunity to review the evidence or determine whether or not it sustained the findings of the jury.
“We have frequently held that all errors occurring during the trial, including supposed erroneous findings of the court or jury, are waived and cannot be considered by this court unless a motion for a new trial founded upon and including such supposed errors, has been made and overruled in the district court.” (Decker v. House, 30 Kan. 614, 616, 1 Pac. 584. See, also, Bennett Grain Co. v. Davis, Director-general, 114 Kan. 800, 220 Pac. 1031.)
The findings mentioned must therefore be treated as ascertained facts, and whether they are sufficient to uphold the judgment is a question of law and is subject to review on ajppeal. The motion to set aside the verdict and give judgment in favor of defendants on the special findings of the jury fairly raised the question and the motion was overruled. The settlement and release is conceded to have been signed by the plaintiff. It was the principal defense and its validity the vital issue in the case. It was attacked on two grounds: One that it was procured by fraud and through fraudulent representations, and another that it was made by reason of mutual mistake as to a material fact. The issue of fraud wag expressly found against the plaintiff as the jury answered that he was not caused to sign the release by reason of any fraudulent statements made to him by the defendants. In addition to this finding the jury found that when the plaintiff signed the release he could read printed and written matter, had the release in his possession, had an opportunity to know what he was signing, and when he signed it made no complaint that he did not understand or know what he was signing. In the writing signed by him was a statement that he had read it and that “before signing and sealing this release I have fully informed myself of its contents and meaning, and that I have executed it with full knowledge thereof.” The effect of a compromise and release cannot be avoided by'a fact that the person did not read a writing which he signed where he is able to do so and there was nothing to prevent him reading it and no misrepresentations made as to its contents. (Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268.) There being no misrepresentations and no fraud in procuring the execution of the release, that issue goes out of the case and the release must be upheld unless there was mutual mistake in its execution. Under the findings can it be said that there was a mutual mistake? The jury found specifically that there was a mistake by the parties as to the nature and extent of plaintiff’s injury, but in answer to a question as to what such mutual mistake consisted of said under “the corroboration of testimony that they did not know,” and to another question as to what was said by the parties that caused or produced a mutual mistake of fact they answered, “Statements of both plaintiff and defendant that they were uncertain as to results of the injury.” It may be added that Doctor Hassig, the defendant’s doctor, had treated the plaintiff and finally discharged him from further treatment, and to the question of whether the defendants at the time of that discharge were mutually mistaken as to the extent and permanence of plaintiff's injury, answered “No.”
The explanations of the jury giving the basis of their finding that there was a mutual mistake of the parties demonstrates that there was no mistake of fact. It amounted to no more than to say that there was doubt and uncertainty in the minds of both parties as to the result of the injury. Neither knew whether the result would be slight or of a permanent character. There was no error of fact, no belief or understanding of the existence of a fact which did not exist. The material fact was whether the result of the injury would be the' stiffening of plaintiff’s finger, and* there was not even a prophecy what the result would be. That was a future event which neither party knew or attempted to forecast, and neither had any misconception as to that event. It was treated by both as a matter of doubt and uncertainty, and necessarily .there was no mistake of fact which could have influenced the making of the compromise and release. Both being in doubt and not wishing to await the result, a compromise was agreed upon and a release executed. Compromises made without deception or fraud of any kind and which avoids litigation are encouraged by the courts. Here there was no deception nor had one of them an advantage over the other. There was no possession of knowledge by one and lack of it by the other, nor was there any fraudulent silence or concealment by either. They could have had no more than an opinion as to the result, which would have been a matter of prophecy. In Tucker v. Atchison, T. & S. F. Rly. Co., 120 Kan. 244, 243 Pac. 269, the question of mutual mistake was involved. A release was executed by the plaintiff, and he claimed that the parties were both mistaken as to the future duration of his disability, and that the release therefore should be set -aside. In deciding the case it was held that a mistake as to a future uncertain and unknowable effect of an injury or the future uncertain duration of a known condition will not of itself avoid a release. The permanency or duration of the disability was held to be a matter of opinion or conjecture of belief and not a mistake of fact. It was decided:
“In an action to set aside the second release on the ground of mutual mistake, held, that to justify rescinding a contract or release on the ground of mutual mistake, such mistake must be as to a past or present fact material to the contract and not a mere mistake in prophecy, opinion, or in belief relative to an uncertain event, such as probable developments from and permanency of a known injury.” (Syl. See, also, Harp v. Red Star Milling Co., ante, p. 451, 247 Pac. 856.)
The parties entered into the contract because of the uncertainty of a future contingent event. It is a compromise which they chose to make on account of the uncertainty involved as to the future effect of the injury. They purposely compromised and settled the doubtful claim, and in the absence of fraud or unfair conduct the compromise must stand, although the result of the injury turned out to be more serious and permanent than was anticipated by either or both of the parties. (Kowalke v. The Milwaukee Electric Railway & Light Co., 103 Wis. 472.)
It is said that this was a court case, that the court was at liberty to discard the findings of the jury and determine the case for itself, and that it in fact did so. The proceedings, however, show that the court was asked to set aside and disregard certain of the findings, but it overruled the motion made to that end. By its rulings it recognized the validity and force of the findings and by its approval must be held to have adopted them. While finding that the release was void and that the injury of the plaintiff was partially permanent, the jury by its general verdict and for some reason only awarded the plaintiff compensation in the sum of $576, but acting on the finding that plaintiff was permanently partially disabled and was not bound by the release, the court increased the compensation to $2,406, the amount he would have been entitled to under the statute if he had been entitled to any compensation. In the state of the record the findings of the juiy are deemed to have been approved and adopted by the court as its own and are therefore open to review here. Holding that the compromise and release are valid, the judgment must be reversed, with the direction to enter judgment in favor of the defendants. | [
-112,
124,
-72,
-99,
10,
96,
42,
-102,
113,
-128,
-89,
83,
-1,
-121,
13,
99,
97,
125,
-48,
107,
87,
-77,
23,
-21,
-45,
-109,
115,
69,
-79,
110,
-28,
116,
77,
48,
-62,
-59,
102,
-62,
-63,
20,
-54,
-91,
-120,
-20,
-7,
72,
60,
62,
16,
91,
49,
-98,
75,
34,
28,
-57,
77,
44,
107,
41,
-47,
-7,
-118,
13,
-3,
16,
-125,
6,
-100,
38,
-38,
60,
-104,
49,
-125,
-24,
114,
-74,
-122,
-12,
97,
-71,
4,
102,
98,
48,
21,
-29,
124,
-8,
47,
-2,
-113,
-92,
-111,
24,
11,
79,
-76,
-67,
106,
20,
38,
126,
-7,
29,
29,
45,
11,
-101,
-106,
-109,
-49,
60,
30,
-101,
-49,
-91,
20,
101,
-52,
-94,
92,
101,
123,
-101,
-65,
-70
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to quiet title to real property in Tribune in Greeley county. Judgment was rendered for the plaintiff, and the defendant appeals.
The plaintiff’s evidence disclosed that on September 10, 1917, D. • R. Beckstrom received a tax deed for the property, caused the deed to be recorded and went on the property, surveyed it, and erected mounds at the comers; that he conveyed the property to the plaintiff on January 19,1921, who in September of that year commenced the erection of a building on part of the property and in May, 1923, erected a dwelling on another part of it and was occupying the dwelling at the time this action was commenced.
The defendant’s evidence disclosed that the South Tribune Town and Land Company had been incorporated in 1887 for a period of five years; that the defendant became the owner of all the stock of the corporation, which was largely indebted to him; that the stockholders had agreed that the president of the corporation should convey to the defendant all the lots standing in the name of the corporation; that the president, pursuant to such agreement, turned over to the defendant a large number of deeds properly signed by the president and secretary of the corporation, with its seal attached, but with the name of the grantee and description of the property not written in any of them; that it had been understood by the president and stockholders that the defendant might insert the names of the grantees and the descriptions of the property as he might desire; that the defendant took one of those deeds, inserted his name as grantee, inserted the description of the property in controversy, and recorded the deed thus completed on February 23, 1907.
The plaintiff had such an interest therein as enabled him to maintain an action to quiet his title and possession thereto against an adverse claimant whose title was weaker than his or who had no title at all. (Brenner v. Bigelow, 8 Kan. 496; Gilteman v. Lemert, 13 Kan. 476; Cramer v. McCann, 83 Kan. 719, 112 Pac. 832.) The possession of the plaintiff gave him the right to maintain the action. (Brenner v. Bigelow, supra; Giles v. Ortman, 11 Kan. 59; Morrill v. Douglass, 14 Kan. 293, 301.)
The defendant argues that the tax deed was void because of defective final notice of redemption from tax sale. The defendant did not show, and does not now argue, that the tax deed was void on its face. Section 79-2505 of the Revised Statutes provides:-
“Any suit or proceeding against the tax purchaser, his heirs, or assigns, for the recovery of land sold for taxes, , . . except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
That statute controls in the present situation. Beckstrom took possession of the property, then vacant, on September 10, 1917, and exercised dominion over it. This action was commenced on September 27,1924. The right of the defendant to attack the tax deed was barred by section 79-2505 of the Revised Statutes at the time the action was commenced.
The judgment is affirmed. | [
-12,
126,
-12,
-99,
26,
96,
42,
-38,
97,
-95,
38,
115,
-19,
-56,
21,
45,
-18,
61,
-11,
120,
-60,
-78,
7,
-21,
82,
-77,
-13,
-51,
-79,
-51,
116,
70,
76,
49,
74,
53,
70,
-64,
-51,
20,
-114,
-124,
9,
101,
-47,
-64,
52,
27,
80,
79,
113,
-34,
-13,
32,
28,
-61,
9,
44,
-53,
-75,
113,
-8,
-85,
-123,
127,
6,
19,
20,
-104,
-57,
104,
-120,
-112,
61,
4,
-24,
83,
54,
-122,
-12,
9,
-117,
40,
46,
99,
58,
101,
-17,
-32,
-104,
47,
-1,
29,
-25,
-110,
24,
-125,
41,
-66,
29,
117,
16,
66,
126,
-25,
-123,
29,
108,
9,
-62,
-10,
-125,
47,
120,
-107,
3,
-33,
-93,
-80,
112,
-49,
-95,
94,
67,
122,
27,
-113,
-44
] |
The opinion of the court was delivered by
Burch, J.:
The appeal' was taken from an order denying a motion to set aside a judgment as void which purported to annul a marriage.
Plaintiff was formerly the wife of William Rice. On February 9, 1918, she was granted a divorce from her husband by the district court of Norton county. The statute contained, ánd still contains, the following provisions:
“It shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and an appeal be commenced as hereinbefore provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court on such appeal; and every person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage be absolutely void.
“Every person convicted of bigamy as such offense is defined in the foregoing section shall be punished by imprisonment in the penitentiary for a term of not less than one year nor more than three years.
“Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time.” (R. S. 60-1512, 60-1513, 60-1514.)
. The divorce decree complied with the statute. On February 18, 1918, nine days after the decree was entered, plaintiff was married to Henry Westerman by a justice of the peace at Liberty, Mo., according to the law of the state of Missouri. On May 24 plaintiff filed a •petition to annul the marriage in the district court of Wyandotte county, Kansas. On July 11 Westerman answered. The case was heard on October 12, and was taken under advisement. On December 10 the following decree was entered:
“Plaintiff appears not, either in person or by attorney, but defendant appears by his attorneys, Rice & Rice.
“And the court, having heretofore examined the papers and pleadings filed herein, and having heretofore heard the evidence, doth find:
“That the plaintiff has been duly and legally notified of the pendency of this suit, as she filed her petition herein and waived notice of trial.
“That the allegations contained in plaintiff’s petition and admitted by the defendant and those contained in defendant’s cross petition are time, and that the defendant is entitled to the relief prayed for.
“That the plaintiff herein was divorced from her husband William Rice, on the 9th day of February, 1918, in the district court of Norton county, Kansas, said decree of divorcement being rendered by said court on said date, and that thereafter, on the 18th day of February, 1918, the plaintiff herein and the defendant herein attempted to enter into a marriage contract at Liberty, Mo., and went through the form - of said ceremony there. That the defendant, at the time of the marriage ceremony at Liberty, Mo., was unaware of the illegality of said marriage, and when he became informed of the same, immediately ceased living with the plaintiff herein, and has not since lived with the said plaintiff.
“The court further finds that the marriage attempted at Liberty, Mo., was in contravention of the decree of divorce theretofore granted the plaintiff, and in contravention and violation of law, and is null and void and of no force and effect, and should be canceled, annulled, set aside and held for naught.
“It is therefore by the court considered, ordered, adjudged and decreed, that the marriage attempted to be consummated between the plaintiff, Bertha Rice Westerman, and the defendant, Henry Westerman, at Liberty, Mo., on the 18th day of February, 1918, is null and void and of no force and effect, and is hereby annulled, canceled, set aside and held for naught.”
The .annulment suit was commenced by plaintiff, pursuant to agreement with Westerman, as one of the means of solving the situation in which they found themselves. Property rights were adjusted by a contract signed on April 30, 1918, pursuant to which Westerman paid plaintiff $17,000. Westerman died in the year 1920. Plaintiff says he was worth half a million dollars, and if that be true, it might be worth a quarter of a million dollars to her to be Westerman’s widow.
Plaintiff filed her motion to vacate the decree of annulment on April 11, 1925. The motion asserted plaintiff did not bring the annulment action, did not authorize any one to commence it for her, had no notice of the pendency of the action, and had no knowledge of the proceedings or of the decree until approximately three years after the decree was entered. The motion further asserted the court was without jurisdiction to enter any decree annulling the Missouri marriage. The motion was heard on affidavits. One of plaintiff’s affidavits undertook to establish domicile and residence of herself and Westerman at Kansas City, Mo., from the day of the Liberty affair forward, and fully supported the allegations of the motion with respect to her utter lack of connection with the annulment suit. She failed to abstract the opposing affidavits, and the' certificate to her abstract is not true. The opposing affidavits have been supplied by counter abstract, all the evidence is now before this court just as it was presented to the district court, and this court possesses the same competency to deal with the evidence as the district court. The evidence clearly establishes that, as a part of the settlement with Westerman, it was agreed plaintiff should bring the annulment suit in Wyandotte county, Kansas; that with her authority, knowledge and assent her attorney did bring the suit, and that her attorney subsequently advised her respecting pendency of the proceeding. Plaintiff’s affidavit in respect to those matters is so clearly demonstrated to be false, that the district court was authorized to disbelieve, and doubtless did disbelieve, all she said, except, pferhaps, that she continued to stay in Missouri after her settlement with Westerman.
District courts of this state have jurisdiction to annul marriages, both by statute (R. S. 60-1515) and by virtue of their general equity jurisdiction. (Powell v. Powell, 18 Kan. 371; Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241; Browning v. Browning, 89 Kan. 98, 102, 130 Pac. 852.) The statute does not require that the plaintiff in an action to annul a marriage shall be a resident of this state, and an action of that character may be brought in any county where the defendant may be summoned (R. S. 60-508). Voluntary general appearance is equivalent to sendee of summons (R. S. GO-2515). Therefore the district court of Wyandotte county had jurisdiction of the parties. There remains the question whether it had jurisdiction to decree annulment of the marriage between plaintiff and Westerman.
Plaintiff contends the Missouri marriage was valid. A statute of this state provides that a marriage contracted without this state, valid by the law of the country where it was contracted, shall be valid in all courts and places in this state. (R. S. 23-115.) Besides that, plaintiff contends the statute of this state declaring void and penalizing marriage within six months after decree of divorce has no extraterritorial effect, and under the common law a marriage valid where contracted is valid everywhere. The conclusion is, the district court had no jurisdiction to decree annulment of the Missouri marriage.
It cannot safely be left to plaintiff to dictate when she will be married and when not married. Some court must have authority to determine the question. In her petition to the district court of Wyandotte county she invoked jurisdiction of that court to determine that the Missouri marriage was void, and a decree to that effect was entered. In her motion to vacate she invoked jurisdiction of the same court to determine that the Missouri marriage was valid, and consequently that the decree of annulment .was void, Therefore, her present attitude is that the court had jurisdiction to determine the question of validity or invalidity of the marriage, in case and only in case it reached one conclusion and not the other. The fallacy involved has vitiated many an ambitious plea of lack of jurisdiction.
Section 23-115, relating to validity here of marriages lawfully contracted in another country, is open to judicial interpretation. The statute was enacted in 1867, and was an aid to colonization of foreign immigrants in the new state. It is. conceivable the word “country” might not have been intended to apply to other states of the American Union, even although in pioneer days it was not considered good form fi> inquire too searchingly into the antecedents of new settlers. However that may be, the word country did apply to foreign countries. Suppose a man from a country permitting polygamy were to bring his group of wives, or a woman from a country permitting polyandry were to bring her group of husbands, and were to undertake to enjoy here the marital relations lawful in the country of origin. It is conceivable the statute would be interpreted according to the common conscience of the people of this country, and the man or woman would be restricted to a single spouse. It is also conceivable an incestuous marriage relationship would not be tolerated at all, even though valid where contracted. Considerations such as these have led to recognition of exceptions to the common-law rule that a marriage valid where contracted will be regarded as valid elsewhere. Such an exception exists whenever the legislature has clearly declared that a certain kind of marriage — as a marriage contracted in evasion of its laws — shall be deemed invalid, and generally, whenever a marriage contracted in another state or country is odious to the public policy of the state in which its validity is challenged, it will not be recognized as valid.
The statute making it unlawful for either party to a divorce decree to marry within six months, declaring such marriage to be “absolutely void,” and punishing the party contracting such marriage as guilty of bigamy, was enacted in 1889. (Laws 1889, ch. 107, §§ 6, 7.) To permit a divorcee to hasten to Kansas City,-or Omaha, or Denver, or Oklahoma City, many there, and then return to Kansas as lawfully wedded, is not consonant with the spirit of the statute, and it is conceivable the legislature intended such a marriage should be absolutely void, even although it did not in express terms declare that a marriage contracted in evasion of the laws of this state shall not be given effect. This court has not heretofore expressed, and is not now expressing, any opinion on the subject. The court does decide, however, that a district court has jurisdiction to adjudicate whether such a marriage is valid or void, between parties properly before it, in an annulment suit.
As indicated above, at the hearing on the motion to vacate, plaintiff testified by affidavit that she and Westerman did not intend to return to Kansas to live after they were married, but intended to reside permanently in Missouri. As indicated above, her story is not worthy of credence. At the trial of the annulment suit evidence was introduced and the court found Westerman acted in ignorance of the Kansas law. The evidence may have proved that the parties, being domiciled in Kansas, merely went to Missouri to be married, and fully intended to return at the end of the honeymoon, and to reside, as before, in Kansas,'but Westeraian’s discovery of the Kansas law occasioned a pause in execution of their plans. This court is bound to assume the evidence established a state of facts consonant with soundness of the judgment. But whatever the evidence may have been, the question whether the Missouri marriage was valid or void was a judicial question, which the court was authorized to determine. Its decision might be contrary to all the decided cases, all the textbooks, and all the magazine articles on the subject; it might be subject to reversal on appeal; but it would be erroneous only, and not void for lack of jurisdiction to decide as it did decide.
The conclusion from the foregoing is that the district court of Wyandotte county had jurisdiction of the parties and of the subject matter of the annulment suit; the decree was regularly rendered pursuant to such jurisdiction; the decree is not subject to attack by motion to vacate on the ground it was void; and, no appeal having been taken from the decree, plaintiff is bound by it.
The judgment of the district court is affirmed. | [
-80,
104,
-75,
92,
42,
-48,
66,
-72,
114,
-123,
35,
83,
-19,
-46,
0,
121,
58,
9,
65,
121,
-64,
-73,
22,
-128,
-10,
-13,
-39,
-35,
-67,
95,
-89,
-10,
76,
40,
42,
-43,
70,
-54,
-55,
92,
-122,
6,
-53,
-20,
-40,
-54,
52,
107,
66,
15,
21,
-66,
-13,
43,
29,
103,
-56,
108,
-53,
60,
17,
-80,
-125,
29,
109,
6,
-79,
36,
-110,
5,
64,
46,
-100,
49,
1,
-24,
115,
-106,
-122,
116,
79,
-69,
8,
48,
99,
1,
5,
-17,
-72,
-104,
15,
50,
-99,
6,
-112,
72,
104,
100,
-66,
-103,
117,
20,
-89,
-6,
-19,
4,
29,
104,
2,
-49,
-106,
-107,
-113,
126,
-104,
9,
-29,
-91,
48,
113,
-51,
98,
92,
70,
120,
-69,
-113,
-68
] |
The opinion of the court was delivered by
Mason, J.:
Harry Chisler and Wilbur E. Stone owned some 3,000 feet of oil-well casing, which they leased to D. E. L. Byers for a period of ninety days, the contract reciting that it might be used only upon what was known as the Castleton well. Byers agreed to pay the stipulated rent and return the casing within the time named. Byers had already contracted to drill ■ another well, known as the .O’Halloran, for George E. Gano, and he used this casing on that well. He found himself unable to carry out his contract, and in consideration of $2,250 signed a writing releasing Gano from obligations under it, Gano also< releasing him. At this time Byers told Gano that Chisler and Stone owned the casing, and that they would probably want it or pay for its use. Chisler and Stone demanded the casing of Gano. He refused, to pay for it, and only agreed to let them have it upon condition they would not injure the well in removing it. He said: “Well, it is out there and it is yours; you can go and get it. If you pull it out of that hole, I will sue you for damages.” Stone and Chisler then brought this action against Gano for conversion of the casing. A demurrer to their evidence was sustained, and they appeal.
The question, presented is whether the course of the defendant amounted to such an assertion of title as to warrant a finding of conversion. Cases and texts announcing the general rule with illustrations are cited on both sides, the defendant relying particularly upon an excellent note in 24 A. S. R., 798-801, but the decision here must turn upon the effect in this regard to be given to the particular facts presented. We think the demurrer should have been overruled, upon these considerations: The title and right of possession of the casing was clearly in the plaintiffs. They had done nothing to forfeit the right to follow it into the hands of Gano, who appears to have been advised of their rights at the time he settled with Byers. While he seemed in words to recognize their title and right of possession, he imposed the condition on his consenting to their taking it that they must not injure the well — not that they should not unnecessarily injure it, but that they should not injure it, however carefully they proceeded. This, was in effect a denial of their right to pull the casing, for if they had a legal right to take it they had a right, if they exercised due skill and caution, to do so much incidental injury to the well as necessarily resulted from their doing what was itself lawful — Portia’s decision to the contrary in Shylock v. Antonio notwithstanding. In saying that if they pulled the casing he would sue them, he is fairly to be regarded as denying their right to pull it, for he can hardly expect to be understood as meaning that he would sue otheiwise than to enforce a lawful claim. And to deny their right to pull it was to deny their right to take it, since possession could be obtained by them only in that manner.
The judgment is reversed, with directions to overrule the demurrer. | [
112,
122,
-40,
45,
26,
96,
46,
-101,
73,
-87,
-25,
87,
-51,
-33,
4,
117,
-17,
121,
116,
106,
-42,
-13,
7,
112,
-46,
-13,
-47,
-35,
57,
108,
-90,
85,
76,
40,
74,
-43,
-30,
-126,
-55,
-36,
-50,
5,
-104,
111,
-39,
64,
52,
30,
112,
79,
65,
-113,
-13,
37,
29,
-57,
44,
44,
-53,
61,
113,
-8,
-102,
13,
111,
16,
17,
6,
-104,
-123,
-24,
60,
-112,
-71,
8,
-20,
114,
38,
-46,
117,
15,
-101,
-88,
98,
102,
1,
109,
111,
-56,
-104,
15,
-50,
-115,
-89,
-112,
88,
-126,
97,
-66,
-99,
96,
0,
37,
102,
-28,
13,
93,
108,
23,
-97,
-42,
-95,
-113,
110,
-116,
1,
-53,
3,
37,
112,
-51,
-86,
92,
69,
112,
19,
-121,
-38
] |
The opinion of the court was delivered by
Hopkins, J.;
The action was one to enjoin the collection of taxes on certain promissory notes which had escaped assessment. Injunction was allowed in part and refused in part. The plaintiff appeals.
On January 9,1921, John E. Nolind and wife executed and delivered to the plaintiff six notes in various amounts aggregating $25,000. They were secured by mortgage duly recorded on certain real estate in Logan county. They were all given in renewal of other notes' theretofore given by the same parties. The undisputed testimony and a stipulation between the parties excludes from consideration here all but one note for $3,000 and one for $4,800. These two notes were not included in the plaintiff’s personal property statement for the year 1922, and were later entered by the authorities as property which had escaped assessment.
The plaintiff contends that one of the notes was the property of the First National Bank, of which he was cashier, and the other one was owned in part by the bank. The controversy was one essentially of fact depending largely upon the testimony of the plaintiff' and the records of the bank. We do not deem it necessary to set out and analyze the evidence. The note itself and the records controverted ■in some respects the oral testimony of the plaintiff. Considering all the evidence, the court, among other things, found that:
“The note for $3,000 and the note for $4,800 were each taken in the name of V. Jaggar, were originally owned by V. Jaggar, plaintiff, were never transferred to the First National Bank of Oakley, and never belonged to the said bank, nor was either note ever part of the assets of said bank. The plaintiff did not at any time receive consideration from said bank for either of said notes or any part of either note, but instead, said notes were each the property of plaintiff, V. Jaggar, on March 1, 1922. Plaintiff V. Jaggar did not list in his personal property statement for taxation for the year 1922 said note of $3,000 nor said note of $4,800, nor any part of either of said notes.”
The court concluded that:
“Defendants should be enjoined from collecting taxes on $17,200 of the $25,000 mentioned in the findings herein as secured by mortgage on real estate, as said sum of $17,200 was not subject to taxation as the property of plaintiff, V. Jaggar.
“Defendants are entitled to judgment, permitting them to proceed to collect-taxes and penalties on the remaining $7,800 of said total of $25,000 as provided by statute, for the year 1922, and are entitled to have dissolved the temporary injunction, issued herein restraining collection of taxes and penalties so far as said restraint applies to $7,800; and
“Defendants are entitled to judgment for $-, the amount of taxes and penalties, with interest'at fifty per cent per annum from date of the injunction herein.”
The controversy being one essentially of fact, and there being evidence to support the trial court’s finding, it cannot be disturbed on appeal.
A contention by the plaintiff that the penalty should not apply when the injunction is upheld as to any portion of the assessment is not sound. The plaintiff was bound to know what property should be returned by him for taxation, and if an attempt was being made to compel him to pay taxes on some amounts for which he was liable and on some for which he was not liable, he could have tendered'the amount of taxes which he actually owed and enjoined collection of the remainder.
It has been held that the fifty per cent penalty applies only to taxes in dispute and does not attach to taxes admitted to be due and tendered before an injunction suit is commenced. (Rogers v. K. C. T. & W. Rld. Co., 48 Kan. 471, 29 Pac. 761.) In the instant case there was no tender and no tax admitted to be due. The plaintiff enjoined the officers from collecting taxes on $7,800, which injunc-. tion was set aside and, therefore, under the statute (R. S. 79-2323) he clearly became liable for the fifty per cent penalty.
The judgment is affirmed. | [
-13,
-4,
-80,
62,
58,
-96,
42,
26,
-23,
-127,
-74,
83,
-23,
83,
0,
109,
52,
29,
101,
107,
-57,
-77,
63,
-63,
-14,
-13,
-47,
-43,
-76,
-49,
-28,
-41,
12,
48,
-54,
-75,
102,
-62,
-25,
116,
-50,
-91,
41,
-52,
-39,
-32,
52,
111,
65,
73,
113,
-113,
103,
40,
28,
67,
105,
41,
75,
59,
-16,
-7,
-81,
5,
79,
23,
-111,
101,
-104,
69,
-56,
42,
-104,
53,
-128,
-8,
51,
-90,
-122,
116,
13,
-71,
13,
102,
102,
16,
101,
-33,
-84,
-104,
46,
-33,
61,
-89,
-109,
88,
67,
-120,
-74,
-99,
124,
80,
6,
126,
-26,
4,
29,
108,
13,
-118,
-74,
-77,
45,
124,
26,
3,
-1,
-125,
48,
97,
-49,
2,
92,
69,
121,
-69,
-114,
-43
] |
The opinion of the court was delivered by
Marshall, J.:
The action is one by the widow and minor children of John Bradshaw to recover under the workmen’s compensation law for his death caused by an accident to him while an employee of the defendant in its mine in Cherokee county. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
There was evidence which tended to show that John Bradshaw was an employee of the defendant; that while he was working for the defendant he was injured by a boulder rolling on one of his big toes; and that through the wound thus caused he became infected with tetanus, from which he died.
The defendant urges “that it has been prejudiced by lack of notice of the accident.” Section 44-520 of the Revised Statutes in part reads:
“Proceedings for the recovery of compensation under this act shall not be maintainable unless written notice of the accident, stating the time, place and particulars thereof, and the name and address of the person injured, has been given within ten days after the accident. . . . The want of, or any defect in such notice, or in its service shall not be a bar unless the employer proves that he has, in fact, been thereby prejudiced. . i . And the failure to make a claim within the period above specified shall be a bar.”
No written notice of the accident was given to the defendant. In Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167, it was held that—
“An employer cannot avoid the payment of compensation to an injured employee under the workmen’s compensation act because written notice of the accident was not given to the employer by the employee within ten days after the accident occurred unless the employer has been prejudiced by the lack of such notice.” (Syl. ¶ 1. See, also, Smith v. Process Co., 100 Kan. 40, 163 Pac. 645.)
Whether or not the defendant was prejudiced by failure to have ten days’ notice was a question of fact to be determined by the jury. That question was submitted to the jury under proper instructions, and the jury found against the contention of the defendant. ■ That finding is conclusive in this court.
Physicians employed by John Bradshaw to treat him for his injury were permitted to testify concerning the condition of the toe, the tetanus which resulted, and his consequent death. No notice was given to the defendant of the employment of those physicians, nor of their examination or treatment of him. The defendant argues that the court committed error in permitting them to “testify as to what they found upon their examination, or to testify at all in the action pending.” The defendant relies on section 44-517 of the Revised Statutes, which reads:
“If the employer or the employee has a physician or surgeon make such examination and no reasonable opportunity is given to the other party to have his physician or surgeon make examination, then, in case of a dispute as to the injury, the physician of the party making such examination shall not give evidence before the court in any action for compensation.”
The two preceding sections of the statute should be noticed, sections 44-515 and 44-516 of the Revised Statutes.
Section 44-515 in part reads as follows:
“(a) After an injury to an employee, he shall, upon request of the employer, submit himself for examination at some reasonable time and place to a reputable physician or surgeon selected by the employer. . . _. (b) If the employee requests he shall be entitled to have a physician or surgeon of his own selection present at the time to participate in such examination, (c) Unless there be a reasonable opportunity thereafter for such physician selected by the employee to participate in the examination in the presence of the physician selected by the employer, the physician selected by the employer shall not be permitted afterwards to give evidence of the condition of the employee in a dispute as to the injury, (d) Except as provided herein, there shall be no other disqualification or privilege preventing the testimony of a physician who actually makes an examination.”
Section 44-516 reads:
“In case of a dispute as to the injury, the committee, or arbitrator as hereinafter provided, or the judge of the district court shall have the power to employ a neutral physician of good standing and ability, whose duty it shall be, at the expense of the parties, to make an examination of the injured person, as the court may direct, on the petition of either or both the employer and employee or dependents.”
There was no dispute concerning the death of John Bradshaw; the cause of his death, tetanus; nor the fact that his toe had been injured. The defendant attempted to show that John Bradshaw had not been injured while he was working for it. That did not constitute a dispute as to the injury. The testimony of the physicians did not come within the prohibition of the statute and was competent.
The defendant says that “the court erred in admitting as evidence the purported demand for arbitration.” The document of which complaint is made reads as follows:
“We have been, employed by Mrs. Lillie Bradshaw, of Crestline, Kan., to represent her in the matter of herself and the minor children, Edna, Bertha, Vera, Harold Dean and Jessie De Bradshaw, in their claim against your company for compensation for injury to the husband and father, John Bradshaw, which occurred at your Crutchfield mine, east of Crestline, on or about the 11th day of August, and which injury resulted in his death September 9, 1924.
“We herewith inclose you notice of attorneys’ lien, so that any adjustment that is made of the matter should be made through our office. These folks would like to get this claim settled up, if that can be done, or they are willing to arbitrate the matter. If you want to do this, please let us know by return mail.”
The communication expressed a willingness to arbitrate the matter, which amounted to a consent to arbitrate under section 44-522 of the Revised Statutes.
The defendant complains of the order of the court overruling the demurrer to the evidence of the plaintiff. This complaint is based on the fact that no notice of the injury had been given, and that this action was commenced before sufficient time had elapsed after receiving the consent of the plaintiff to arbitrate the matter to enable the defendant to determine whether or not it would consent to arbitration. The consent to arbitrate was sent to the defendant by registered mail on September 27, 1924, and was received by it in the usual course of mail delivery. This action was commenced on October 17, 1924, more than ten days after the consent had been received by the defendant. The petition alleged that John Bradshaw had never filed a declaration with the secretary of state not to be bound by the terms of the workmen’s compensation law. Upon that question there was no evidence offered by the plaintiff. The defendant also argues that this action was brought in violation of the provisions of section 44-520 of the Revised Statutes, which is the statute concerning written notice of the accident. The demurrer to the evidence was properly overruled.
The judgment is affirmed. | [
-48,
-24,
-36,
-115,
8,
96,
50,
26,
97,
-95,
36,
83,
-51,
87,
13,
43,
106,
41,
84,
107,
86,
-77,
23,
-53,
-14,
-9,
113,
-59,
-79,
106,
54,
-10,
77,
48,
74,
-43,
-26,
74,
-59,
84,
-114,
-122,
40,
-19,
25,
16,
56,
110,
84,
91,
17,
-98,
107,
42,
24,
-57,
108,
40,
107,
-65,
112,
-80,
-118,
-123,
127,
16,
-109,
0,
-100,
39,
88,
30,
-104,
49,
64,
-24,
80,
-74,
-62,
-76,
41,
-119,
0,
110,
99,
49,
21,
-17,
104,
-104,
14,
-10,
29,
-89,
-99,
64,
-117,
13,
-106,
-99,
63,
52,
-122,
120,
-4,
29,
92,
40,
11,
-49,
-74,
-77,
79,
116,
-108,
-85,
-5,
-121,
52,
117,
-52,
-85,
93,
69,
123,
31,
-97,
-66
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to procure a declaratory judgment concerning the rate that should be paid by the defendant for natural gas furnished to him at his house. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The case was tried on an agreed statement of facts, which, summarized, showed the following: In 1908, Phebe Roberts owned a tract of land near Winfield. The Wichita Natural Gas Company desired to construct a natural gas pipe line across this land and entered into a contract with Phebe Roberts by which the Wichita. Natural Gas Company paid to her $1 and other valuable considerations for the right to lay and maintain a pipe line across the land and by which she was “to have privilege of using gas at twenty-seven cents net per thousand cubic feet.” The pipe line was laid,, and afterwards the rights of the Wichita Natural Gas Company were assigned to the plaintiff, which thereafter continued to furnish gas to Phebe Roberts and her assigns at twenty-seven cents net a. thousand cubic feet. The defendant in 1922, through successive conveyances, became the owner of two and one-half acres of the land; and after he became the owner of the land, the plaintiff continued to supply him with gas at the rate of twenty-seven cents per thousand cubic feet until in the month of April, 1924, when the plaintiff refused to further supply gas to the defendant at that price. The plaintiff contends that) by its contract, it is not obligated to furnish gas to the several owners of subdivisions of the tract of land at the rate of twenty-seven cents per thousand cubic feet.
The defendant contends that as a purchaser of a part of the land, he is entitled under the contract to have gas furnished to him at twenty-seven cents per thousand cubic feet; that twenty-seven' cents was the rate in effect when the public utilities law was passed and the legal rate to the defendant; and that the rate of twenty-seven cents per thousand cubic feet was reasonable. Alderson v. Natural Gas Co., 116 Kan. 501, 227 Pac. 347, is necessarily involved in the determination of the question presented. There, this court said:
. “A contract by a natural-gas company, operating as a public utility, to furnish gas to a landowner for domestic use on his premises, in consideration of the right of the gasj company to lay its pipes across the owner’s land, can be enforced by the grantee of the landowner so long as the gas company occupies the land with its pipe lines.” (Syl. f 1.)
That case did not declare that numerous grantees of the landowner, when occupying the land, should each at the same time have gas furnished to them in their separate houses at the rate of twenty-seven cents per thousand cubic feet. That case declared the law where the owner of a tract of land, having a contract with the natural gas company to supply gas at a specific rate in consideration of the right to lay a pipe line across the land, transfers the land to a single grantee. The contract contemplated furnishing gas to the owner of the land, one owner, or joint owners treated as one, in one establishment, but did not contemplate a division of the land into a number of tracts and furnishing gas to the subsequent owner of each of those tracts. The defendant did not acquire the right to have gas furnished to him at twenty-seven cents a thousand cubic feet by virtue of his being a purchaser of two and one-half acres of the land.
There remains the question of the effect of the public utilities act on the rate in controversy. An order of the court of industrial relations, dated August 17, 1920, is made part of the agreed statement of facts. By that order the court of industrial relations fixed a rate of fifty-six cents a thousand cubic feet and a monthly service charge of seventy-five cents to be charged by the Winfield distributing company for gas it sold to its customers for domestic purposes, and fixed a rate of forty cents per thousand cubic feet to be charged by the plaintiff to the distributing company for gas received by it from the plaintiff to be sold to domestic consumers in that city. Neither that order nor any other order of the court of- industrial relations, or of any other board having charge of rates to be charged by public utilities in this state, fixed the rate to be charged by the plaintiff for gas furnished -to the defendant or to persons similarly situated. The order of the court of industrial relations is not relied on by the plaintiff to name the rate to be charged by it for gas furnished to the defendant, but the plaintiff calls attention to that order for the purpose of showing that the rate charged the defendant is lower than it ought to' be. No order of the public utility rate-regulating body is involved in this action. Here, we have a rate voluntarily put into effect and over which none of the rate-regulating bodies of this state has attempted to exercise any control.
Section 66-104 of the Revised Statutes in part reads:
“The term 'public utility,’ as used in. this act, shall be construed to mean every corporation, company, individual, association of persons . . . that, now or hereafter may own, control, operate or manage, . . . any equipment, plant, generating machinery, or any part thereof . . . for . . . the conveyance of oil and gas through pipe lines in or through any part of the state.”
The plaintiff is a public utility within tbe meaning of that law and is furnishing gas to the defendant under the law.
Section 66-108 of the Revised Statutes requires all public utilities to file with the public service commission copies of all schedules of rates, etc.
Section 66-109 in part reads:
“No' common carrier or public utility governed by the provisions of this act shall, knowingly or willfully, charge, demand, collect or receive a greater or less compensation for the 'same class of service performed by it within the state, or for any service in connection therewith, than is specified in the printed schedules or classifications, including schedules of joint rates; or demand, collect or receive any rate, joint rate, toll, fare or charge not specified in such schedule or classification.”
Section 66-117 of the Revised Statutes in part reads:
“Whenever any . . . public utility governed by the provisions of this act shall desire to make any-change in any rate . . . such public utility or common carrier shall file with the public utilities commission [public service commission] a schedule showing the changes desired to be made and put in force by such utility or common carrier. . . . No change shall be made in any rate . . . without the consent of the commission.”
These statutes apply to the rate in controversy. A schedule of that rate must have been filed to have complied with the law. It cannot be changed except on the order of the public service commission. Until the commission orders otherwise, that rate remains the legal rate for gas to be furnished to the defendant.
The judgment is affirmed. | [
-16,
106,
-16,
94,
-116,
96,
42,
-102,
97,
-79,
-75,
87,
-19,
68,
12,
121,
-109,
61,
117,
107,
-57,
-77,
3,
-64,
-44,
-77,
-111,
-51,
-71,
93,
-12,
-59,
76,
36,
74,
-43,
-30,
-62,
69,
-36,
-114,
4,
9,
96,
-39,
64,
52,
11,
114,
73,
21,
13,
-13,
40,
24,
-61,
44,
46,
-7,
57,
-64,
-15,
10,
-121,
125,
20,
16,
36,
-110,
-123,
104,
14,
-104,
49,
8,
-24,
115,
-90,
-122,
-76,
15,
-69,
44,
-30,
99,
3,
37,
-17,
-120,
-40,
6,
-34,
-115,
-90,
112,
24,
-29,
96,
-73,
28,
104,
70,
7,
118,
-2,
-99,
95,
124,
9,
-117,
-106,
-31,
3,
108,
-102,
-105,
-17,
-121,
33,
100,
-61,
-94,
93,
71,
114,
-101,
-114,
-40
] |
The opinion of the court was delivered by
Mason, J.:
The Farmers Elevator Company, of Bennington, owned an elevator at that place, and also retailed coal. An electric plant situated about a mile and a half away was owned by Ben F. Markley, who .held a franchise granted to “the Markley Electric Light and Power Plant,” and in 1921 was operated by his son, George C. Markley. The plant had previously used oil as fuel, but early in that year changed to coal. From time to time the coal shipped in for the plant would be used up and the elevator company supplied the deficiency by some 55 deliveries, from May 9 to November 5, 1921.
It brought this action for the balance due on the price of the coal, the petition naming both the Markleys as defendants and describing them in the title as partners, although no allegation of a partnership was made in the body of the pleading. Only Ben F. Markley was served with summons, his son having become a nonresident of the state. He defended on the ground that in November, 1920, he had leased the property described as belonging to “the Markley Electric Light and Power Plant” to his son for the term of ten years, beginning January 1, 1921, and that his son alone was liable for the coal. A jury trial was had, resulting in a judgment for the plaintiff, from which Ben F. Markley, who will be referred to as the defendant, appeals.
A reversal is asked principally upon the contention that the evidence, and also the special findings, showed conclusively that only George C. Markley was liable for the coal; that it was ordered by him with directions to be charged to him; that the first items were in fact so charged, and that no different directions were ever given.
The following are the special findings upon which the defendant relies in this connection:
“3. Q. Did Geo. C. Markley, about the 9th day of May, 1921, request S. R. Dillinger [the plaintiff’s manager and bookkeeper] to send coal to the electric light plant in question with directions to charge the same to him? A. Yes.
“4. Q. If you answer No. 3 ‘Yes,’ then did the plaintiff furnish coal to the electric plant in question pursuant to the arrangement set forth in question No. 3? A. Yes.
“5. Q. Did Geo. C. Markley ever give to S. R. Dillinger any other directions as to how coal sent to the electric plant in question should be charged other than as directed in question No. 3? A. No.
“6. Q. Did B. F. Markley in the year 1921 order some coal from plaintiff to be sent to the electric light plant in question? A. Yes.
“7. Q. If you answer No. 6 ‘Yes,’ then was the coal so ordered by B. F. Markley paid for by him? A. Yes.”
Three additional questions and answers read as follows:
“8. Q. Was there any arrangement made between B. F. Markley and Geo. C. Markley as to division of profits and losses growing out of the operation of the electric plant in question during the year 1921? A. Yes.
“9. Q. If you answer question No. 8 ‘Yes,’ then state fully what said arrangement was. A. We do not know.
“10. Q. Did Geo. C. Markley operate the electric light plant in question on his own account during the year 1921? A. No.”
The evidence showed that on May 9, 1921, the defendant’s son ordered some coal, saying to charge it to him. The coal was loaded and weighed and a “load ticket” was made out in his name, a corresponding entry being made on the stub. As more coal was ordered and delivered the same procedure was followed. These entries were transferred to pages of the ledger under the name “Markley Power and Light Plant, Bennington, Kan.,” and “Markley Light and Power Plant.” George C. Markley had a personal ledger account in which were entered purchases for use at his home. The sales here involved were not entered there, but on separate leaves of the ledger. The facts that the defendant’s son ordered the first coal with directions to charge it to him, that such a charge was made in the manner indicated, and that no different directions were given with respect to subsequent purchases, have a tendency to show that the understanding of the parties was that the debt created was that of the son and not of the defendant; but they are not conclusive on that point. The actual intention of the parties is what controls, and the circumstance that the seller of goods enters on his books a charge for them to one person is not wholly inconsistent with the liability of another, and is capable of explanation consistent therewith. Where a dealer who upon his books had charged the milk furnished a boarding house to the husband of the woman who was apparently running it, but sued her for payment, it was held error to refuse to permit the plaintiff to explain the method of keeping accounts whereby the charge was made against the husband rather than the wife. (Eddy v. Church, 118 N. Y. S. 795. See, also, cases there cited and Lane v. Turner, 114 Cal. 396.) In one of the cases cited in Eddy v. Church, it was said:
“Where goods are sold to an agent the legal presumption is that the credit is given to the principal, and entries on the books of the vendor charging the goods to the agent, though of much weight upon the question, are not conclusive evidence that the credit was given exclusively to him.” (Foster et al. v. Persch, 68 N. Y. 400, 402.)
Here we think the evidence justified submitting to the jury the question of the defendant’s liability, notwithstanding the charges on the load tickets and stubs were made to the son, who ordered the coal and directed' the charge to be made in that manner. The following matters deserve consideration in this connection: There is room for the inference that the direction as to the charge meant no more than that the coal was for the use of the Markley electric plant and was not to be paid for in cash; or perhaps that the son’s name was to be used to show the person ordering the particular load. If a distinction between the son and his father were intended, a more specific reference might be thought more natural. The plaintiff’s bookkeeper testified repeatedly that George Markley told him to charge the coal to him, but a part of his cross-examination reads:
“Q. With whom did you transact that business? A. Well, that was ordered by George Markley and they hauled it down there.
"Q. What did he say to you about it when he ordered it? A. He said to charge it to him.
“Q. To charge it to him? A. Yes, to the plant down there.
“Q. Well, didn’t he say to charge it to him? A. Yes, sir.”
The first three load tickets were in the name of George Markley, but from that on the charges on the tickets were made to “Markley Plant,” "Geo. Markley Light Plant,” “Markley Light Plant,” “Markley Power and Light Plant,” and various other similar names. The plaintiff’s manager testified that on August 1, 1921, the defendant told him not to let George have any more coal on his account; and that later he told him to let George have some coal, without saying how much, making a payment of $200. The circumstance that the defendant told the plaintiff not to let George have any more coal on his account fairly warrants the inference that it was understood coal had been and was being furnished to the plant on his credit. The lease from the defendant to his son does not appear to have been seen by anyone but the Markleys prior to December. 1922. It purported to cover a period of ten years, beginning January 1,1921, but George Markley testified that he operated the plant under it from about the middle of November, 1920, until some time in December, 1921. The lease provided for monthly payment of rent in advance beginning with $200 a month for 1921, annual increase being provided for, the lessor to have the right to take possession in case of a default in payment. The defendant testified that he thought he had received $50, but no other payment on the lease had ever been made. The defendant seemed unable to explain the purpose of a second lease of a similar character which was executed in December, 1921. He said he took the lease because George was his son; that he knew he didn’t have a dollar; that in a way he forfeited the lease in June, 1921; that he made some collections for electricity bills from July to December, 1921. Bills for electricity during the years 1919,1920 and 1921 were produced, all bearing the signature “Markley Electric Light and Power Plant.” There was evidence that, a corporation having been formed to take over the electric light plant, a proposition for its transfer was made by the Markleys, representing that each owned an undivided interest in it. There was also evidence of the defendant having inquired of the plaintiff’s manager whether the plaintiff’s board of directors would take stock in the new corporation in payment for the claim here sued upon.
The question was submitted to the jury, “Did B. F. Markley lease the electric plant in question to Geo. C. M.árkley in November, 1920?” They returned the answer, “We don’t know.” The defendant asked that a more definite answer be required and complains of the refusal of that request. A direct answer should have been given to the question, but we do not think the refusal to require it sufficiently important to call for a reversal. By their answers to questions 8 and 10, already set out, the jurors in effect found that.the plant was not being operated under the lease, and therefore the fact of its having been executed became immaterial so far as the liability of the defendant was concerned.
Complaint is also made of the refusal of the court to require a more definite answer than “We do not know” to question No. 9, already set out, inquiring under what arrangement between the Markleys as to profits and loss the plant was operated in 1921. It was not necessary, and indeed was not possible, for the jury to determine just what the arrangement was between the defendant and his son, if they were treating the lease as a, mere scrap of paper — a colorable device not intended to have and not having any effect between the parties to it. It was not essential to the plaintiff’s recovery that a partnership should have been shown. We think the jury must be deemed to have found, upon sufficient evidence, either that George Markley was running the plant for his father or that they were joint adventurers with respect to it under some arrangement, knowledge of the precise character of which was not necessary to determine the question of the defendant’s legal responsibility.
The judgment is affirmed.
Burch, J., not sitting. | [
112,
120,
-4,
-100,
24,
-32,
42,
-40,
109,
97,
-89,
87,
-23,
-35,
25,
105,
19,
93,
85,
122,
-44,
-109,
19,
115,
-45,
-13,
-45,
-51,
-72,
88,
-28,
71,
72,
36,
-118,
21,
-30,
-64,
-55,
92,
-82,
5,
-87,
-32,
-7,
-128,
52,
58,
118,
75,
81,
14,
-77,
40,
24,
-61,
73,
46,
111,
57,
80,
-8,
-102,
-51,
109,
22,
49,
38,
-98,
-123,
-40,
62,
-112,
-12,
2,
-87,
51,
-92,
-106,
-3,
33,
-119,
9,
102,
103,
17,
-123,
-17,
-24,
24,
38,
-34,
-99,
-89,
-104,
48,
-125,
2,
-65,
-99,
114,
80,
-74,
126,
-30,
-99,
87,
125,
1,
-125,
-74,
-63,
-83,
112,
-98,
-111,
-53,
-117,
52,
100,
-51,
-96,
92,
70,
114,
-97,
15,
-82
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action by a resident taxpayer of the city of the second class to enjoin the city and its officials from issuing certain refunding bonds. The trial court sustained a demurrer to plaintiff’s petition, and he has appealed.
In addition to matters not necessary to be reviewed here, the petition alleges that plaintiff has been a resident of the city since 1920, and a taxpayer since 1922, and that the defendant, by various separate projects in 1921 and 1922, paved certain streets within the city, as shown by ordinances No. 304, of July 30, 1921; No. 305, of July 29, 1921; No. 312, of October 30, 1921; No. 314, of December 13, 1921; and No. 316, of July 13, 1922. Bonds of the city were issued for the payment of these various projects. On October 16, 1924, the city passed ordinance No. 359, providing for issuing refunding bonds to take up some of the bonds of the paving projects above mentioned, and which were due November 1, 1924. It is this issue of refunding bonds which plaintiff seeks to enjoin. He alleges various defects and irregularities in the proceedings of the respective paving projects and in the forms of the paving bonds issued. It will be observed that the present holders of the paving bonds, which the city is attempting to refund, are not parties to this ac tion; their rights cannot be determined here, for they are not before the court.
From the brief of appellee it appears that the trial court took the view that plaintiff was barred from prosecuting this action, if not by a specific statute of limitation, then by his laches. We agree with this view. The action was not brought within the thirty days provided by statute (R. S. 13-906) “to set aside or in any way contest or enjoin” the levy of special assessments for such pavements. The statute applies to void assessments as well as irregular ones. (Park Association v. City of Hutchinson, 102 Kan. 488, 491, 171 Pac. 2, and cases there cited.) No action to enjoin the assessments for the various paving projects was brought within the time named in the statute. The city, therefore, could rightfully deem itself authorized to proceed with the respective projects.
This action, however, is not predicated upon R. S. 13-906, but upon R. S. 60-1121, under which a private citizen, as taxpayer, may enjoin a proposed illegal bond issue. (Hartzler v. City of Goodland, 97 Kan. 129, 154 Pac. 265.) But in this case, whether the refunding bonds are invalid and should be enjoined depends upon whether the paving bonds, issued to pay for the several paving projects above mentioned, are void. So the real question before us is, Can the plaintiff in this action, begun November 1,1924, question the validity of the paving bonds issued for the various paving projects in 1921 and 1922? Obviously it would be decidedly inequitable to permit them to be questioned in this action, even if it were possible, since the city and its property owners have the pavement, the holders of the paving bonds have parted with their money for them, and are not parties to this action. Plaintiff was a resident of the city when each of the paving projects was under way, and a resident taxpayer when some of them were carried out; he stood by and saw the improvements made, the bonds issued and sold to pay for them, and paid such taxes, levied to pay interest and principal thereon, as were assessed against his property for the years 1922 and 1923. He is now estopped by his laches from questioning their validity. (Meistrell v. Ellis County, 76 Kan. 319, 91 Pac. 65; True v. McCoy, 119 Kan. 824, 241 Pac. 249; Kirsch v. City of Abilene, 120 Kan. 749, 244 Pac. 1054.)
When the petition shows laches on its face the question may be raised by demurrer. (City of Leavenworth v. Douglass, 59 Kan. 416, 53 Pac. 123.)
The judgment of the court below is affirmed. | [
-16,
104,
-76,
-18,
74,
64,
26,
-102,
89,
-79,
-91,
95,
-81,
-49,
4,
125,
127,
125,
112,
122,
-59,
-77,
71,
66,
-46,
-13,
-37,
-35,
-7,
93,
-26,
86,
78,
48,
-54,
-107,
38,
-62,
69,
92,
-114,
-124,
-118,
-52,
-39,
64,
52,
107,
114,
3,
113,
30,
-13,
43,
24,
-29,
-20,
44,
75,
-67,
-48,
-15,
-71,
5,
-1,
7,
-127,
68,
-100,
-59,
-64,
-85,
-112,
49,
16,
-24,
115,
38,
-122,
116,
77,
-103,
8,
118,
98,
1,
5,
-25,
-40,
-72,
14,
-48,
-115,
-91,
-80,
24,
75,
33,
-74,
-105,
125,
22,
7,
-2,
-18,
-107,
91,
108,
15,
-114,
-12,
-79,
-17,
-16,
-128,
1,
-17,
-125,
48,
113,
-50,
118,
92,
103,
18,
-101,
30,
-104
] |
The opinion of the court was delivered by
Mason, J.;
A conviction upon a charge of murder having been affirmed on appeal, a motion for a rehearing is presented, in which some of the questions considered in the original opinion are reargued, and some new matters are urged.
The motion is devoted largely to an attack upon the veracity of Gideon Hardin, the Nebraska farmer who testified that on the night of September 7,1922, he saw a car near the place where the body of Jack Newkirk was found. After the affirmance of the judgment, counsel for the defendant employed a Denver detective and W. R. Lathrop, a former sheriff of Smith county, Kansas, to investigate Hardin. As a part of the motion for a rehearing an affidavit of Lathrop is filed to the effect that he had proposed to Hardin to enter with him into a scheme to procure $10,000 by fraud; that Hardin consented and in the course of their discussion of the matter told him his testimony at the Turner trial had been false; that the story of his having seen the car was suggested to him by one A. J. Taylor, who in effect promised him a part of the reward he expected to get. It is stated in the motion that Taylor was appointed as a deputy sheriff of Norton county to work on the Turner case and the case was turned over to him so far as the sheriff’s office was concerned.
Obviously this affidavit has no bearing upon the question whether error was committed in the trial of the case. Counsel for defendant recognize this, but urge that it proves an injustice to have been done and that the court for that reason should set the judgment aside and order a new trial, as was done, for instance, in Caldwell v. Modern Woodmen, 90 Kan. 175, 133 Pac. 843, where after judgment had been rendered in favor of the beneficiary in a life insurance policy the insured turned up alive. We do not, however, regard the affidavit as establishing the falsehood of Hardin’s testimony with such approach to certainty as to warrant that procedure. It is controverted by an affidavit of Hardin, adhering to his former story and giving an entirely different version of the conversation between him and Lathrop. The state also files affidavits tending to show, and if true showing that the story which Hardin told on the witness stand did not originate with Taylor. The situation presented is that of the reversal of a judgment being asked because of additional disputable evidence being offered in this court relating to the credibility of a witness, a practice which is not recognized by the statute, and which if followed would go far to prevent any finality with respect to judgments in criminal cases. Other affidavits offered by the defendants are unavailing for like reasons.
A rehearing is asked also on the ground that this court misunderstood the evidence in a material matter. It is true a statement in the original opinion requires correction. It was there said in effect that Hardin testified the car which followed him on the night referred to, and which when it turned back he saw to be without the bundle previously seen on its running board, was then 200 feet away. Hardin said 200 yards, and the use of the term 200 feet was due to a clerical error. The court, however, did not and does not regard what the witness said about the distance as vital to the upholding of the verdict. It may be true, as contended by the defense, that at 200 yards it would have been impossible to tell whether there was a bundle on the running board. But the witness’ estimate of the distance was not necessarily accurate. He testified that he did see that the bundle was no longer on the running board, and that the car was then probably about 200 yards away — less the few steps he had taken toward it. Granting that the two statements were inconsistent, it does not follow that the first one was wrong. The probabilities in this regard were of course for the determination of the jury and trial judge, but it seems natural to assume it was the estimate rather than the actual fact in which the testimony erred. Estimates of time and distance are well known to be variable and unreliable. The language of the witness showed he was only ven turing a rough guess as to the distance. In his examination.in chief he said, “As near as I can tell my truck stopped two or three telephone poles north of where the body was found.” On cross-examination he said, “When I saw the car stopped behind me it was two or three telephone posts back of me, probably about 200 yards.” His estimate of the distance at two or three telephone poles showed he was not undertaking to give the exact distance. Moreover, on the theory of the defense that the entire story was made up out of whole cloth, it would have been just as easy for the witness to have named a shorter and more plausible distance. The defendant’s brief made no mention of Hardin having placed the distance at 200 yards; its only reference to the matter represented him as saying the distance was “about three telephone poles.” Nor is the distance between the witness and the car commented upon in the brief as too great to admit of seeing whether the bundle was on the running board. In the state’s brief Hardin is said to have given the distance as about 300 feet, a statement which remained unchallenged and which may have been intended as an interpretation of the witness’ estimate of two or three telephone poles.
No testimony seems to have been offered at the trial about the phase of the moon, but in one of the affidavits filed by the state at this hearing it is said to have been practically full and nearly overhead, which seems to agree with the calendar. Hardin said the night was clear.
The credibility of Hardin has at all times been a vital point in the case. His story was brought out at the preliminary examination as well as at the trial, and we cannot think the belated attempt to impeach his testimony requires or warrants resort to any extraordinary procedure for the reopening of the issue of fact. There is, of course, no basis for the remotest suspicion of want of good faith on the part of counsel for the defense in connection with the new evidence or any other phase of the case. Their belief in the defendant’s innocence has been manifest throughout. We cannot agree with their conclusions, however, and see in the case omy disputed questions of fact upon which a full and fair hearing was had.
The motion for a rehearing is overruled. | [
-80,
-24,
-12,
29,
10,
96,
34,
-8,
83,
-128,
36,
115,
-23,
-54,
4,
127,
-6,
13,
85,
105,
-10,
-105,
23,
-103,
-14,
-13,
67,
-41,
-78,
75,
-82,
-108,
77,
48,
74,
-43,
102,
8,
-123,
90,
-114,
4,
-72,
-32,
-38,
80,
52,
124,
36,
10,
-11,
-98,
-13,
42,
30,
-61,
41,
44,
91,
-71,
80,
48,
-102,
-121,
-1,
18,
-93,
-90,
-104,
-125,
120,
42,
-40,
49,
2,
-8,
115,
-74,
22,
-12,
97,
-119,
12,
110,
103,
17,
29,
-19,
-88,
-120,
47,
62,
13,
-89,
-72,
9,
67,
44,
-106,
-35,
115,
112,
14,
124,
-4,
5,
-35,
108,
1,
-49,
-106,
-79,
-51,
60,
-104,
31,
-21,
5,
22,
113,
-51,
-30,
93,
70,
112,
-71,
-113,
-74
] |
The opinion of the court was delivered by
Mason, J.:
The defendants executed to the plaintiff four notes for $500 each, secured by a chattel mortgage on an automobile in part payment of which they were given. Two of the notes were paid. The plaintiff brought this action of replevin to recover possession of the automobile under the mortgage. The defendants gave a redelivery bond and kept possession. They filed an answer and cross petition which contained no general denial, but set up two causes of action for damages — one for $2,500 for failure of the plaintiff to carry out a contract on its part to keep the car in repair for a stated period, and the other for $450 for loss of the use of the car while the plaintiff unnecessarily kept possession of it for the purpose of making repairs. The defendants asked judgment for $2,950. A jury was waived and a trial had. The court allowed the defendants $800 on their cross petition, crediting it on the amount due on the notes, and rendering a personal judgment in favor of the plaintiff for $552.21, which was declared to be a lien on the automobile, the sheriff being ordered, to sell the car upon execution, the proceeds to be applied first to the payment of costs and the judgment, any surplus to go to the defendants. The judgment also included an order for the defendants to deliver the automobile to the sheriff, and a provision for a deficiency judgment in case it did not sell for enough, to pay out. The defendants appeal, contending (1) that inasmuch as by the terms of the mortgage the remedy of the plaintiff on nonpayment was to seize and sell the property upon ten days’ notice, it was not entitled to have a sale made as upon execution by the sheriff; and (2) that the judgment in replevin by the terms of the statute can only be for the return of the property or for the value thereof in case a return cannot be had.
Notwithstanding the right of the holder of a chattel mortgage to obtain possession of the property (by replevin if necessary) and sell it himself, he may have a foreclosure and sale under the judgment of a court, at least where for any reason the former remedy is inadequate or less adequate. (11 C. J. 699, -719; 5 R. C. L. 466-468; 2 Cobbey on Chattel Mortgages, § 950.) And the provision of the statute (R. S. 60-1010) that the judgment in replevin shall be in the alternative is for the benefit of the wronged party alone. (Bank v. Venard, 109 Kan. 15, 197 Pac. 877.)
By the judgment appealed from the plaintiff got nothing which he could not have obtained regularly and in due form in some kind of action. The amount due it was fully adjudicated, and there was no other matter of dispute. It was entitled to have the automobile sold to apply on the amount, and to hold the defendants for any unpaid balance. The defendants themselves had sought a personal judgment in this action for the amount they claimed as damages, which was largely than that of the notes sued on. The plaintiff in its reply expressly asked that the mortgage be foreclosed and the automobile be sold by the sheriff, the proceeds to apply on its judgment. The tendency of this court has been to expand rather than contract issues triable in replevin. (Gardner v. Risher, 35 Kan. 93, 10 Pac. 584.) In view of these considerations we think it clear that the defendants suffered no substantial prejudice from any departure there may have been from the usual and regular procedure, and that there is no occasion for further litigation between the parties.
The judgment is affirmed. | [
-48,
124,
-48,
-82,
26,
96,
42,
-102,
80,
-128,
55,
-45,
-23,
-57,
4,
45,
-12,
125,
101,
104,
85,
-77,
7,
65,
-45,
-77,
-15,
69,
-67,
-50,
-12,
23,
76,
48,
-62,
-43,
102,
-118,
-59,
84,
78,
-121,
-102,
101,
-39,
74,
-12,
-101,
80,
9,
101,
-115,
-29,
38,
25,
-49,
105,
40,
107,
57,
-48,
-8,
-115,
5,
127,
23,
-111,
36,
-100,
99,
-8,
12,
-112,
49,
1,
-24,
114,
-74,
-122,
84,
105,
-101,
9,
38,
102,
2,
69,
-51,
-40,
-120,
46,
-10,
15,
6,
19,
120,
10,
97,
-66,
-97,
108,
0,
36,
-4,
-18,
21,
29,
100,
7,
-49,
-106,
-109,
-83,
126,
-102,
9,
-1,
-109,
52,
113,
-51,
-16,
93,
103,
91,
-101,
-114,
-65
] |
The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought under the workmen’s compensation law. There was a recovery by Vernon Wood, and defendant, the Eagle-Picher Lead Company, appeals.
Plaintiff was an employee of the defendant, and on August 4,1924, while working in defendant’s mine, suffered an injury to his back. Compensation was paid to him by defendant from August 11, 1924,. to December 1 of that year at the rate of $12.60 per week, which was sixty per cent of the wages he had been receiving. Payments were suspended on December 1, the defendant claiming that he had been cured of his injury and was no longer entitled to compensation. The plaintiff then proposed arbitration, but the offer was not accepted, whereupon this action was brought in which plaintiff alleged that the injury had caused a permanent disability, and that he was entitled to compensation during the statutory period at the rate of .$12.60 per week.
Defendant answered, admitting that plaintiff had been slightly injured while working in its mine, but had recovered from the injury, and that it had paid compensation to him until it was notified that counsel had been employed to bring an action in his behalf. After a trial was commenced, the parties agreed that the questions should be arbitrated, and an arbitrator was agreed upon. Later a trial was had before the arbitrator, and it was found that the plaintiff had received an accidental injury which arose out of and in the course of plaintiff’s employment by defendant. The injury, it was found, was a straining of the back in the lumbar region, caused by slipping while doing heavy lifting; that his average weekly earnings were $21 per week, and that the result of the injury was permanent total disability, which entitled him to compensation .for a period of 415 weeks in the sum of $12.60 per week. There was a further finding that compensation had been paid plaintiff by the defendant in the sum of $201.60. It was further found that the plaintiff was entitled to $428.40, compensation due from December 21, 1924, to July 27, 1925, which should be paid in a lump sum, and thereafter he should be paid the sum of $12.60 per week for a period of 365 weeks. A motion was made to modify or set aside the report of the arbitrator, which was overruled and judgment entered.
Among other complaints the defendant contends that no legal arbitration was had because the proper preliminary steps were not taken to obtain one. The arbitration was not compulsory, as it was agreed upon by the parties, and the defendant joined in an agreement as to the person who should serve as arbitrator, and also participated in the trial before him. In these circumstances the defendant is not in a position to question the validity of the appointment or the authority of the arbitrator.
There is -a contention that the court refused to review the testimony on defendant’s challenge of the justice of the award. The record does not bear out the claim. On the contrary, it tends to show that the evidence was considered by the court. The decision of the arbitrator on the question submitted was final except as to matters which the statute provides shall be open to review. Among these are fraud, undue influence, serious misconduct of the arbitrator and grossly excessive award. The defendant questions, as we have seen, the authority of the arbitrator, a claim without merit, and also serious misconduct of the arbitrator, and that the award was grossly excessive. In the state of the record it must be assumed that the court properly considered and decided the questions raised by the defendant. In the absence of a showing to the contrary the presumption must be indulged that the court has followed the law and given due consideration to the evidence applicable to questions that were open to review. As to the charge of misconduct on the part of the arbitrator, nothing was shown beyond the findings made. It devolved upon the defendant to establish the misconduct charged and not upon the plaintiff to show that the charge was unfounded. (Roper v. Hammer, 106 Kan. 374, 187 Pac. 858.) Nothing approaching misconduct was shown.
The claim of excessive award rests on disputed testimony relating to the extent of the injury. Several physicians were brought forward by the respective parties, who testified on the subject, and also an operator of an X-ray machine; and the testimony of these was conflicting. Afterwards the arbitrator suggested that if parties would ■consent he would appoint two additional physicians of his own selection to examine the plaintiff’s present condition, and consent being given the examinations were made and these physicians testified. On the whole testimony the arbitrator found that the injury sustained was serious, and as a result the plaintiff was permanently and totally disabled, and these findings were confirmed by the court.
We cannot say that the findings are not supported by the evidence, and the award is no more than is allowed by law for the disability found, and therefore cannot be regarded as excessive. It is said in the brief that pending the motion to set aside the award, defendant asked the court to reopen the question and take additional testimony to ascertain whether the award was excessive. We are unable to find such a request or a refusal in the record. It is said that the action asked is warranted under the provision in R. S. 44-528. The court had before it the evidence of quite a number of physicians, including the two 'that the arbitrator had selected, and if a request was made that still others should be called, the court in the exercise of its discretion must have determined that further testimony was unwarranted. The statute provides that the court may upon application of a party for a review appoint a physician or a surgeon, or two physicians, to examine the workmen and report to the court, and if he finds any of the grounds exist which are within the scope of the review he may modify the award. It may be done, but that term does not imply that it must be done upon application regardless of what is disclosed by the evidence and the circumstances of the case. It is only to be done when the circumstances of the case or changed conditions convince the court that good reasons exist for such action. The finding made by the arbitrator related to the condition of plaintiff up to the time final action was taken, and in the absence of the existence of statutory grounds, his findings were final
In Kinzer v. Gas Co., 110 Kan. 574, 204 Pac. 999, the arbitrator made a finding that the workman had fully recovered from the injury and was merely simulating incapacity for work. On a review the trial court set aside the award on the ground that plaintiff was shown to be totally disabled, and compensation was awarded on that basis. It was held that the decision of the arbitrator should be treated as final except for the limited review and could not be set .aside without a showing of unfairness or misconduct on the part of the arbitrator. While gross inadequacy was treated as a ground of review, it was held that if the pretended disability was a sham, as found by the arbitrator on sufficient evidence, the award was not inadequate, and that the question of fact determined by the arbitrator could not be retried in the district court. So here, the finding of disability having been made upon sufficient evidence, no fraud having been shown nor unfairness or misconduct of the arbitrator, a retrial of the specific question in controversy in the district court was not warranted.
We find nothing substantial in the champerty charge mentioned in the plaintiff’s brief.
The judgment is affirmed. | [
-14,
122,
-104,
-100,
26,
96,
42,
-6,
113,
-95,
-91,
87,
-81,
-33,
13,
97,
99,
125,
-48,
106,
86,
-77,
23,
-54,
-45,
-109,
123,
-51,
-71,
110,
-44,
-43,
77,
48,
10,
-43,
-26,
-56,
-59,
28,
-50,
-124,
41,
-20,
-39,
64,
56,
30,
-16,
91,
49,
-106,
-53,
42,
20,
-57,
13,
44,
123,
35,
-48,
-15,
-94,
5,
-19,
16,
1,
2,
-100,
39,
88,
126,
-104,
-79,
14,
-19,
50,
-74,
-58,
-12,
35,
-103,
4,
102,
98,
33,
85,
103,
120,
-72,
46,
-2,
-99,
-92,
-111,
16,
43,
75,
-84,
-71,
122,
20,
118,
126,
-6,
13,
85,
44,
3,
-102,
-106,
-94,
-49,
100,
-98,
27,
-21,
-91,
54,
100,
-52,
-94,
92,
71,
123,
-101,
-105,
-88
] |
The opinion of the court was delivered by
Johnston, C. J.:
Clara T. Birch brought this action to quiet her title to a tract of land against the claims of the Solomon National Bank. In her petition she alleged that she was the widow of William Birch, who had been the owner of the land and had occupied the same as his homestead; that upon his death she and her children inherited the land; that she had purchased the shares of her sons, Lester Birch and Dallas U. Birch; that the.premises had been occupied by her and her sons as a homestead; that the defendant had procured judgment against her sons on which an execution had been issued and levied upon the shares inherited by them; that a sale had been made and the bank was seeking to procure the execution of a deed to the premises and then to obtain partition of the same which would operate as a cloud upon her title. In a second cause of action plaintiff recounted the facts stated in the first, and added that the defendant, well knowing that the land was not subject to levy and sale under its judgment, had maliciously caused execution to be levied on the land for the purpose of annoying her and of injuring her title, for which she asked damages in the sum of $1,150, and also a judgment quieting her title as against its claim.
A motion was made by defendant to make the petition of plaintiff more definite and certain in some particulars, and defendant also filed a demurrer to the second cause of action. The motion to make more definite and certain was’ taken under advisement, and later the court found that the petition had been amended in some particulars and decided to overrule the motion.
Complaint is made of this ruling, but as it did not involve the merits nor determine the action, it was not a final order and cannot be reviewed until after final judgment. (Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039.)
The demurrer appears to have been aimed particularly at the second count of the petition, asking damages as well as the quieting of plaintiff’s title. However, all the facts of the first count were incorporated in the second, and their sufficiency are open to review. The case was submitted with one just decided, Solomon Natl Bank v. Birch, post, p. 334, wherein a motion to set the sale aside was held to be wrongly sustained. The instant case involves the exemption of the shares of Lester Birch and Dallas U. Birch, and it having been determined in that case that the shares inherited by them in the land claimed .as a homestead were not exempt, but were subject to sale for their own debts, it follows that the demurrer to the petition should have been sustained.
The decision is therefore reversed. | [
-14,
126,
-40,
-116,
106,
96,
42,
-6,
97,
-96,
-91,
83,
-5,
-53,
21,
33,
-14,
45,
113,
104,
-10,
-77,
23,
-94,
-42,
-46,
-111,
-59,
-80,
-36,
118,
87,
12,
48,
-54,
-43,
102,
-62,
-63,
-108,
14,
4,
-119,
69,
-39,
104,
52,
59,
86,
75,
112,
-50,
-13,
40,
25,
66,
104,
45,
-21,
-71,
-48,
-8,
-117,
-124,
127,
18,
49,
33,
-102,
-93,
-56,
12,
-112,
49,
8,
-24,
119,
-90,
-122,
52,
43,
25,
8,
38,
99,
3,
101,
-17,
-72,
-104,
38,
118,
29,
-90,
18,
72,
-126,
32,
-65,
-99,
125,
0,
6,
118,
-18,
4,
28,
108,
29,
-53,
-10,
-79,
-113,
-4,
-102,
7,
-10,
-125,
-80,
116,
-117,
-32,
92,
-57,
123,
27,
-113,
-3
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action by parents for the death of their son from injuries received in an automobile accident which occurred on the county road, on the county line between Rice county and McPherson county. The action was filed in Rice county; the boards of county commissioners of both counties were made defendants. The board of county commissioners of McPherson county appeared specially and moved to set aside the service on the ground it could not properly be sued in Rice county. This motion was sustained. The board of county commissioners of Ricé county demurred to the petition for the reason that it stated no cause of action against it. This demurrer was sustained. Plaintiffs have appealed.
We need only inquire if the petition states a cause of action against the board of county commissioners of Rice county, for, if it does not, the motion' of the board of county commissioners of McPherson county was properly sustained.
The petition, so far as is necessary to be here considered, alleges that the work of constructing the road was done by both counties; that along the side of the road in McPherson county is a ditch, about eight feet deep and two hundred yards long, which had been excavated by defendants in grading the road; that this ditch was unprotected by guard rails, or otherwise, and was partially obscured by grass, weeds and brush along the edge near the road, and contained about three feet of water; that the traveled portion of the road was so graded as to slope toward this ditch; that by reason of these defects the automobile in which plaintiffs’ son was riding as a guest, was driven so that a wheel slipped into the ditch, causing the injuries complained of. Defendant, Rice county, makes the point that the defective road is alleged to be in McPherson county, and the casualty, resulting in the death of plaintiffs’ son, occurred in McPherson county, hence that Rice county is not liable. This contention must be sustained. Counties are liable for injuries of this character only to the extent they are made so by statute. (Rosebaugh v. Allen County Comm’rs, 120 Kan. 266, 243 Pac. 277; Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140; Parr v. Shawnce County, 70 Kan. 111, 78 Pac. 449; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255; Eikenberry v. Township of Bazaar, 22 Kan. 556.)
The statute creating such liability reads, in part, as follows:
‘‘Any person who shall without contributing negligence on his part sustain damage by reason of any defective . . . highway, may recover . . . from the county . . . wherein such defective highway is located . . .” (R. S. 68-301.)
It will be observed that under the statute recovery can be had only from the county wherein the defective highway is located. Under the facts alleged, McPherson county is liable, if the other matters can be shown which are required by statute to establish such liability; but in no event can Rice county be held liable for injuries caused by a defective highway located in McPherson county.
In Olsson v. Lawrence Township, 93 Kan. 440, 144 Pac. 997; 99 Kan. 42, 160 Pac. 995, the action was against adjoining townships, in adjoining counties, for damages caused by a defective culvert in a road on a county line between the two townships. The township in which the defect was located and in which the injury occurred, was held liable (Olsson v. Lawrence Township, 99 Kan. 42, 45, 160 Pac. 995), and the other township not liable. In Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010, the city was held not liable for injuries caused by a defective bridge located just outside the city limits, although the city contributed to its maintenance. The question of maintenance is distinct from that of liability. The statute (R. S. 68-507) provides for improvement and maintenance of intercounty roads, but does not change the statute (R. S. 68-301) with respect to liability; hence the statute last cited governs.
Some other questions are argued, but it is hot necessary to consider them. The judgment of the court below is affirmed. | [
-44,
104,
-32,
124,
11,
-22,
64,
8,
121,
-79,
-28,
83,
-23,
-53,
5,
107,
-22,
61,
64,
59,
101,
-73,
87,
-104,
-110,
-13,
-15,
-59,
-78,
-37,
102,
-10,
76,
48,
-118,
-43,
70,
72,
-115,
-100,
-114,
10,
-119,
-20,
89,
-126,
-76,
107,
54,
15,
117,
15,
-30,
42,
60,
-29,
-83,
44,
-39,
-83,
-103,
-80,
-56,
-105,
94,
1,
-95,
-92,
-98,
-125,
72,
58,
-104,
-71,
8,
-4,
114,
-90,
-122,
-12,
47,
-103,
8,
-66,
103,
35,
29,
-51,
-24,
-104,
15,
-2,
13,
-90,
-122,
89,
107,
15,
-106,
-99,
93,
118,
10,
-8,
-17,
69,
91,
104,
7,
-54,
-112,
-79,
-51,
53,
18,
1,
-21,
13,
48,
113,
-51,
-10,
91,
-57,
50,
27,
15,
-70
] |
The opinion of' the court was delivered by
Mason, J.:
A verdict for the plaintiff in an action for the recovery of money was set aside by the trial judge because in his opinion it was contrary to the evidence. A new trial was had, and again a like verdict was set aside for the same reason. The plaintiff appeals on the ground that where there is some substantial evidence to support a verdict but the trial court sets it aside because of a belief that a wrong decision has been made, and upon a new trial another verdict to the same effect' is returned, the court has no authority to set it aside — that its power in this respect has been exhausted. We cannot approve this contention.
The fourth of the statutory grounds upon which a new trial may be granted is “that the verdict . . . is in whole or in part contrary to the evidence.” (R. S. 60-3001.) This does not mean merely that a verdict may be set aside if there is no evidence tending to support it — a matter involving a pure question of law, subject to review on appeal — but that a new trial may, and indeed must, be granted unless the judge is able to give his approval to the finding of the jury as a matter of fact. Nothing in the statute either expressly or by fair implication justifies confining the application of this provision to a single trial or verdict, or removing from its operation a verdict which is like one to which it has already been applied.
“It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the juiy are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. When a trial judge overrules a motion pro forma, and declines to look into the facts or pass upon its sufficiency, he misconceives his duty and commits fatal error. He has no right ‘to stand out of the way’ and against his judgment overrule such a motion. He must approve or disapprove the verdict. If he approves, he may overrule the motion for a new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts.” (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108.)
That is the settled law of this state, and there is nothing novel in it.
“ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.” (Capital Traction Company v. Hof, 174 U. S. 1, 13.)
The trial judge is not only authorized but required to exercise an independent judgment upon the issue of fact presented. This does not mean that he is to give no weight to the decision reached by the jury. As a matter of course that is an important element in the solution of the problem presented — is one of the matters requiring careful consideration. And where the same verdict is reached by two successive juries its persuasive force is obviously increased. But its weight in this connection is to be determined in the district court and not by this court on appeal, as is attested by many decisions showing reluctance to reverse an order granting a new trial on the ground of the verdict being contrary to the evidence. The reasons back of the policy of having the judge, in the familiar phrase, act as the thirteenth juror, apply in subsequent trials as well as in the first. Such difference as exists is one of degree and not of kind, and relates to the cumulative strength of successive verdicts.
There are jurisdictions in which, without statutory provision, the authority of the trial judge to grant a new trial because he disagrees with the jury as to the weight and credibility of evidence is exhausted by being exercised in a single instance, soi far as concerns other verdicts of the same kind. Cases bearing upon this are collected in 14 Enc. of P. & P. 993-994, some of which, however, are controlled by statute. So far as they are in conflict with what has already been said herein we do not accept their reasoning or conclusion. The appellant’s brief cites a number of cases to the effect that where successive juries have passed upon the facts with the same result a court will hesitate to grant a new trial. This is merely another way of saying that the court will give weight to the opinions of jurors — the more jurors the more weight. The brief also quotes from Johnson v. Leggett, 28 Kan. 590, to the effect that the court should not substitute its judgment for that of the jurors. What is there said, however, applies as well to first trials as to later ones, and has to do with the force to be given to the opinion of the jury. One of the cases contains this quotation:
“In this commonwealth there is no rule of law limiting the number of times that a judge may set aside a verdict as against the evidence. On the other hand, it has been recognized that in an extraordinary case the court may set aside any number of verdicts that might be returned.” (Clark v. Jenkins, 162 Mass. 397, 398.)
The judgment is affirmed. | [
-80,
-8,
-44,
-84,
10,
96,
34,
-40,
65,
-123,
103,
-77,
45,
-45,
20,
127,
-110,
-37,
85,
99,
-34,
-73,
23,
1,
-30,
-46,
-48,
-41,
117,
-20,
-9,
126,
77,
48,
-118,
-43,
70,
75,
-43,
80,
-124,
-122,
-72,
71,
-8,
-88,
48,
32,
126,
31,
21,
-98,
-29,
46,
24,
-57,
-56,
56,
91,
61,
81,
88,
-104,
15,
109,
0,
-77,
39,
-98,
-29,
120,
110,
80,
57,
1,
-24,
115,
-74,
-126,
84,
109,
-103,
40,
98,
96,
-111,
125,
111,
-72,
-103,
63,
46,
-81,
-90,
-112,
24,
75,
41,
-74,
-7,
100,
52,
46,
-2,
-18,
21,
-36,
100,
31,
-105,
-106,
-77,
-49,
124,
-70,
98,
-62,
-125,
16,
97,
-52,
-24,
92,
71,
91,
91,
-98,
-90
] |
The opinion of the court was delivered by
Dawson, J.:
These appeals are concerned with the questioned regularity of certain proceedings undertaken by the city of Independence and the county of Montgomery to pave a street and highway situated on the western limits of that city and extending a short distance out into the country.
In case No. 27,080, pursuant to the statute (R. S. 12-647 et seg.) authorizing the county and city governments to cooperate in the construction of improved streets or highways which bound the city on one side and the open country on the other and in certain situations analogous thereto, the defendant boards of commissioners of the city and county determined to pave part of West Laurel street in Independence in the western part of the city and extending five-eighths of a mile beyond the city limits.
The usual preliminaries attendant on such project were complied with, and the two governing boards met and adopted the requisite resolutions and made timely compliance with all the directions of the statute down to receiving of bids for the construction of the improvement.- At that point trouble bégan. One A. G. Sherwood submitted a bid to pave the street and road with brick for $27,-546.71 or with-concrete for $24,138.20. The city and county boards accepted Sherwood’s offer to pave with brick at the higher figure, and a contract to that effect was awarded him on December 16, 1925.
The plaintiffs, who claim to be property owners and taxpayers specially affected by the improvement, filed this action, setting up the fact that the bid and its acceptance, and the contract of December 16, 1925, for the improvement made in conformity therewith, were for a sum in excess of the engineer’s estimates to the extent of some $3,805.51. They alleged that their properties were threatened with an unlawful burden of taxation on account of such illegal letting of the contract, and prayed for an injunction.
Demurrers on behalf of the city and county boards were filed and overruled. It was agreed between the parties that the cause should be tried on the pleadings, and the trial court held:
“That the contract let by the defendants, the city of Independence, Kan., and Montgomery county, Kansas, to A. G. Sherwood upon December 16, 1925, was and is null and void for the reason that said contract was let to said contractor at a price that exceeded the estimate made for said public improvement by the county engineer.
“The court further finds that all proceedings by the defendants, the municipal corporations, were regular and legal except the letting of said contract.”
Judgment was entered accordingly. In part the decree reads:
“It is therefore . . . ordered, adjudged and decreed that the said defendants be and they are permanently restrained and enjoined from proceeding with the paving . . . under their said contract with the said A. G. Sherwood; and it is further ordered, . . . that . . . [defendants] may, if they so elect, repeal and rescind the orders, proceedings, resolutions and contract made upon December 16, 1925, and may proceed to call for new estimates, plans and specifications from the city or county engineer and . . . may proceed in conformity with the laws of Kansas in letting contracts for said paving.”
Defendants appeal, assigning error on the trial court’s ruling on the demurrer, and on the order granting the injunction. A painstaking brief is presented in defendants’ behalf, but counsel for plaintiffs raise the point that the legal questions have become moot because defendants have so far acquiesced in the judgment of the trial court as to adopt resolutions repealing and rescinding the orders, proceedings, resolutions and contract with Sherwood of December 16, 1925, and have called for new estimates, new bids, and have awarded a new contract for the improvement of the street and road.
Plaintiffs’ point is well taken. A judgment which is acquiesced in, in whole or in part, is not open to appellate review. (Bank v. Bracey, 112 Kan. 677, and citations, 212 Pac. 675.)
We pass then to the consideration of case No. 27,081, which is in effect a sequel to the one just discussed.
The county and city officials caused new estimates to be made, new bids to be invited. Two contractors made bids as follows:
$26,759.70 Lester Hudson ..
27,679.75 A. G. Sherwood
These bids were opened on February 15, 1926, and taken under advisement until February 19, at which time A. G. Sherwood submitted a proposal in writing in which he agreed to construct the improvement for the sum of Lester Hudson’s bid, $26,759.70, and further agreed:
“To' waive any and all claims that he may have against said city and said county for any damage or losses sustained by him in the nullification and cancellation of said contract of December 16, 1925, [contract involved in case No. 27,080] the performance of which was enjoined by the district court.”
This offer was accepted. The city and county officials adopted a pertinent resolution, which in part reads:
"Whereas, It is the further opinion of said commissioners, in joint meeting assembled, that the said A. G. Sherwood, having been awarded the first contract, dated December 16, 1925, and having incurred great expense in making provisions to carry out same, and having made contracts for material, and having assembled same and employed labor for the performance of said contract and having entered into the performance of said contract and placed on said improvement more than 300,000 brick, and having offered, in writing, to enter into a contract for the making of said improvement at the aforesaid sum of $26,759.70, and having agreed to waive all claims for damage or losses sustained by him, by the cancellation of said contract of December 16, 1925, should be awarded this contract; and,
“Whereas, The joint board, upon due investigation, and due consideration of the qualifications of said contractors, for the proper performance of said improvement, finds: That said A. G. Sherwood has had more experience in paving highways and streets with brick, and possesses greater skill and ability in constructing such improvement, and is more fully equipped with the latest approved machinery for making said improvement than the said Lester Hudson, and is therefore the lowest responsible bidder for the making of said improvement.
“Now therefore be it resolved, by said joint board, That the amended bid of said A. G. Sherwood, in the sum of $26,759.70, be and the same is hereby accepted and he is hereby awarded the contract to pave and hard-surface said street and road with brick, in accordance with the plans, specifications and estimates of the county engineer, adopted therefor.”
This action by the same plaintiffs followed. Their petition and attached exhibits set up the pertinent facts and alleged:
"The plaintiffs allege that the defendants rejected the bid of Lester Hudson, arbitrarily, without making an investigation and that the said defendant boards did not find that Lester Hudson did not possess skill, ability, integrity and financial responsibility but arbitrarily rejected his bid, well knowing that the said Lester Hudson did possess skill, integrity and financial responsibility, but on account of having been enjoined by the above entitled court decided to give said contract to A. G. Sherwood regardless of the wishes of the people in the benefit district and the laws on the statute books of Kansas. . . .
“That said joint boards had no authority to permit A. G. Sherwood to amend his bid so that as to equal that of his only competitor; such an act being illegal, against public policy, and that it destroys the right of competitive bidding.
“That the offer or proposal submitted by Sherwood on February 19, 1926, was not a bid, but was an offer to compromise his claim for damages against said joint boards provided he was awarded said contract; that a joint board has no authority in law to accept such a bid with such a proviso attached thereto, it being against public policy.
“That the joint boards acted arbitrarily in finding that Lester Hudson did not possess reasonable skill and financial responsibility or be possessed of sufficient integrity to carry out his contract and that said finding was made without any investigation, and that the statement in said resolution that said finding was made upon due investigation is untrue. . . . ”
The petition contained a good deal of matter in criticism of defendants’ plan of improving the road, and found fault with the quality of the materials to be used in the case, the proposed “scarification” of the roadbed, and with the proposal to give the contractor credit for that work, and the petition likewise contained a prophecy that the proposed improvement—
“Would only result in said street having to be repaved within five years, and that to proceed to pave said street in such a manner would be to deprive the taxpayers in the benefit district and in the city and county at large of their property in the way of taxes.”
Plaintiffs concluded with .a prayer for an injunction restraining the defendants from proceeding with the improvement and restraining them from assessing plaintiffs’ properties to raise money in payment therefor.
A hearing was had upon plaintiffs’ application for a temporary injunction. Defendants’ objection to the introduction of evidence on the ground that no cause of action was stated was overruled. Plaintiffs introduced their evidence. Defendants’ demurrer thereto was overruled. The trial court held—
“That the court has no jurisdiction to hear and determine the kind or quality of paving; and that there was no fraud, corruption or oppression in the proceedings prior to, or in the letting of, said contract; that temporary injunction should issue for the reason that the contract was let without competitive bidding; that as a condition precedent to the issuance of a temporary injunction, plaintiffs should file with the clerk of this court, within ten (10) days from this date, a good and sufficient bond, in the sum of five thousand dollars ($5,000).”
Plaintiffs failed to file the bond required by the court, and in due time defendants filed formal demurrer, raising these points of law:
“1. That the court has no jurisdiction of the subject of the action.
“2. The plaintiffs have no legal capacity to sue.
“3. That several causes of action are improperly joined.
“4. That the petition does not state facts sufficient to constitute a cause of action.”
This demurrer was overruled, and defendants dictated into the record a general denial except as to the accuracy of the exhibits attached to plaintiffs’ petition.
Among other matters covered by the evidence the qualifications of Lester Hudson, whose bid was rejected, were presented. It was shown that Hudson’s contracting experience pertained to-drainage, grading, and earthwork, and that his only experience in paving work was the construction of two blocks of a city street in Coffeyville fourteen years ago. Hudson did not have the requisite tools for paving — a roller, concrete mixer, tar kettle, and the like. He did, however, have a good rating in the county as to his financial responsibility and a creditable record as to the quality of the work he was accustomed to do. His reputation for honesty was also good.
At the conclusion of the plaintiffs’ evidence, the record reads:
■ [Counsel for Defendants]: “We demur to the evidence on the ground that the petition does not state facts sufficient to constitute a cause of action; that the evidence offered does not prove, tend to prove or disprove any issues in the pleadings; that the court has no jurisdiction of the subject matter of this action, and that the plaintiffs have no legal capacity to sue, and that several causes of action are improperly joined. . . .
“Further that the testimony does not show that the plaintiffs are entitled to the relief prayed for or to any other relief.
■“The Court: Overruled.
[Counsel for Defendants] : “If the court please, we elect to stand on our demurrer to the evidence, and our objections, and do not desire to offer any evidence, but we request that the court make findings of fact and conclusions of law in his decision. We are perhaps not entitled to ask that; we would like it if you will.
“The Court: I refuse to make any findings of fact or conclusions of law. The court is of the opinion that the injunction should be made permanent, that the joint board should be enjoined from proceeding under this contract.”
Judgment was entered accordingly, and defendants appeal.
On defendants’ behalf several points are argued at some length, but counsel for the appellee, with some regard for this court’s time, concedes that “the only question necessary for the court to determine in this cause is whether or not the road contract let to A. G. Sherwood upon the 19th day of February, 1926, is valid.”
That being the controlling point, we can settle it in short order. Under this statute (R. S. 12-647 et seq.) a petition of taxpayers praying for a concrete road was of no legal significance. The matter is vested exclusively in the discretion of the city and county officials. Moreover, the matter of determining who was the lowest responsible bidder was vested in the discretion of the public officials (Williams v. City of Topeka, 85 Kan. 857, 118 Pac. 864), and the trial court’s finding of fact pursuant to the hearing of plaintiffs’ application for a temporary injunction was a virtual elimination of any issue of fraud or favoritism. The fact that this contract was let to Sherwood at the same figure as Hudson’s bid did not hurt these plaintiffs. (Dillingham v. Spartanburg, 75 S. C. 549, 8 L. R. A., n. s., 412.) Since the city and county officials in their discretion determined that Sherwood was the lowest responsible bidder, the contract might lawfully have been let to him at the precise figure of his own bid. The reduction of that bid to a lower figure did not vitiate his selection as the lowest responsible bidder. Moreover, the adjustment, compromise and settlement of his ostensible claim for the repudiation of the contract of December 16,1925, was no justiciable concern of plaintiffs. The state has an attorney-general, a county attorney, and a city attorney, charged with the responsibility of scrutinizing the acts of public officers and boards so far as concerns matters of this sort. (Elting v. Clouston, 114 Kan. 85, 217 Pac. 295; Clark v. George, 118 Kan. 667, 236 Pac. 643.) It is only in cases peculiarly affecting the pocketbooks of taxpayers that they are authorized to challenge acts, faults, or departures from statutory formulas, committed by public officials. (Civ. Code, § 265; R. S. 60-1121.) The scaling down of Sherwood’s bid and the compromise and settlement of his claim under his contract of December 16,1925, was not a substantial departure from the directions of the statute.
Counsel for appellees call our attention to Surety Co. v. Brick Co., 73 Kan. 196, 84 Pac. 1034, but while we adhere to what was there said in condemnation of fraud and' favoritism in the letting of contracts for public improvements, there is no substantial analogy between that case and the one at bar. Nor do we find any close analogy between the present case and Fairbanks, Morse & Co. v. City of North Bend, 68 Neb. 560, or Diamond v. City of Mankato, 89 Minn. 48, to which the trial court attached some significance. They merely state the general rule that proposals and specifications must be framed to permit free and full competition, and that the public officials, after selecting the lowest and most responsible bidder, may not enter into a contract with him by yielding substantial concessions beneficial to him which were not included in or contemplated in the terms and specifications upon which bids were invited. Nothing was done in this case in violation of that rule.
We note what plaintiffs have to say about defendants’ plans and specifications for the improvement. It will be a pity, indeed, if plaintiffs’ prophecy comes true that the specifications are so defective that the street and road will have “to be repaved within five years,” but discretion and responsibility on such matters must be vested somewhere. Under this statute they are vested in the city and county governing bodies, not in these plaintiffs, and not in the courts. The courts cannot interfere with the exercise of that discretion and responsibility where, as here, no substantial showing of fraud is disclosed by the record. In Root v. City of Topeka, 104 Kan. 668, 180 Pac. 229, it was said:
“The courts are not authorized to adjudicate a mere difference of opinion between a taxpayer and a city government touching the necessity or desirability of a public improvement, so long as there is no issue raised attacking the city’s good faith.” (p. 670.)
In case No. 27,080 the appeal is dismissed; and in case No. 27,081 the judgment is reversed and the cause remanded with instructions to enter judgment for defendants. | [
-16,
106,
-76,
127,
-38,
-64,
24,
-120,
89,
-95,
-28,
95,
-87,
-53,
5,
115,
-97,
125,
80,
123,
-59,
-109,
119,
-38,
-110,
-13,
-5,
-51,
-69,
93,
-12,
84,
76,
33,
74,
-107,
102,
66,
-59,
-98,
-50,
-124,
-119,
-52,
-35,
96,
54,
111,
50,
10,
81,
-114,
-13,
40,
56,
-61,
-24,
44,
-37,
-88,
17,
-16,
-124,
-43,
126,
4,
1,
100,
-98,
-121,
-40,
47,
-104,
117,
9,
-72,
117,
-90,
-122,
-11,
7,
-55,
8,
-10,
98,
33,
57,
-17,
-24,
-36,
14,
-14,
-115,
-89,
-78,
24,
27,
73,
-106,
-99,
93,
22,
67,
-2,
-3,
4,
91,
60,
-125,
-117,
-80,
97,
-49,
62,
-125,
21,
-21,
45,
48,
96,
-121,
-30,
110,
-41,
50,
27,
-97,
-72
] |
The opinion of the court was delivered by
Johnston, C. J.:
This was an attack upon a judgment on the ground that it was void. It appears that E. H. Pattison obtained the judgment on October 18,1923, enjoining the Kansas State Bank and the sheriff from selling a tract of land which he held under a tax title and of which he had possession through a tenant. In the petition for the injunction it was alleged that Pattison had procured a valid and legal tax deed under legal proceedings, and that no creditor of the owner of the legal title had a cause of action to defeat the action or prevent the premises from being liable therefor; that his ownership under the tax deed was paramount and not subject to any claim of the defendant. It was alleged that the bank was proposing to sell the land under an attachment process in violation of his rights and without authority of law. A summons was served upon the defendants, who made default, and the matter was presented to the court. It was found on the pleadings and testimony that the plaintiff was the owner of the land, that it was not subject to the claims of the defendants, and thereupon a permanent injunction was granted. On January 30, 1925, a year and three months after the rendition of the judgment, a receiver for the Kansas State Bank filed a motion asking that the judgment and injunction be vacated and hold for naught on the ground that the pleadings failed to state a cause of action against the defendants, and recited facts which show that the judgment was void. The petition contained a copy of the tax deed, and it is contended that on its face it appeared to be void for the reason that the acknowledgment thereof did not show the name of the officer and was not acknowledged as required by law. The sale on which the tax deed was based was to begin on September 1, but was not actually made until October 28, fifty-six days too late; further, that it recited a resolution of the board of county commissioners made prior to October 28, adopting the provisions of a certain act, and showed no authority for sale at that time, and based on these alleged defects it is said that the petition alleged no cause of action and therefore the judgment should be set aside.
On the other side it is contended that the receiver showed no interest which entitled him to attack the judgment, that even if the petition was defective the judgment of the court was not void because the court had jurisdiction of the parties and the subject matter, and cannot be set aside in this collateral way even if the petition was subject to attack by demurrer.
The motion of the defendants is a collateral attack upon a final judgment. In the action in which the judgment was rendered, the bank and the sheriff were duly served with process, but did not appear or answer, nor did they appeal from the judgment, and the time for appeal has long since passed. Although they did not assert any rights they may have had, or contest the claims of plaintiff, a judgment by default is now as binding upon the defendants as if they had appeared and contested with plaintiff at every step in the trial. (Miller v. Miller, 107 Kan. 505, 192 Pac. 747, and cases cited, 3 Freeman on Judgments, 5th ed., 2690-2692.)
Passing over the objection of plaintiff that the receiver had no right to attack the judgment, and assuming that he had an interest, it must be held that the judgment is not open to the attack that was made. He contends that a cause of action was not stated, in that it did not allege that plaintiff was in possession of the land and insists that possession was essential to a cause of action. Plaintiff did allege that he was the owner of the land, had acquired it by a tax deed which, was regular and valid, and that it was not subject to any claims of the defendants or to that of any creditor of the former owner. While there was no specific averment of possession, the ownership alleged implied that he had the legal title to the land with all the incidents of ownership, which would include possession, and also all that was required to defeat the claims of defendant. The pleading may have been open to challenge by a motion to make more definite and certain and also to a demurrer, but the averment was at least such as warranted proof of possession in the trial that was had. Testimony was produced, but the record does not disclose what evidence was received. However, it is stated and not denied that there was proof that defendant was and had been in possession of the land for some time previous to the trial. Defects in the acknowledgment of the execution of the tax deed and supposed defects as to the time when certain steps were taken by the taxing officers are called to attention; but assuming that there were real defects it would not warrant the inference that the tax deed was void. It has been determined that even if the tax deed is so defective as to be void it at least gives the purchaser rights and equities in the land, and whether it conveys title or only a lien is a question for the determination of the court, and if the court should err in its judgment, from which no appeal is taken, it is conclusive upon the parties. (Brenholtz v. Miller, 80 Kan. 185, 101 Pac. 998, and cases cited.) Here the court had jurisdiction of the parties and of the subject matter, and the allegations in the petition were sufficient at least to invoke the action and deliberation of the court upon the merits of the case. It did consider and determine not only the sufficiency of the petition, but also the force of the evidence, and gave judgment for plaintiff. If the court wrongly decided either as to the facts or the law, its error did not render the judgment void. The error, if any was committed, must be corrected upon appeal and cannot be collaterally reviewed. (Randolph v. Simon, 29 Kan. 406; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001.) In Wyandotte County v. Investment Co., 80 Kan. 492, 103 Pac. 996, the syllabus is:
“Where a court has jurisdiction of the subject matter of an action and of the parties, a petition which alleges sufficient facts to challenge the attention of the court as to its merits, and to authorize the court to deliberate and act, is sufficient to sustain a judgment rendered in the action upon evidence, as against a collateral attack on the ground that the judgment is void; and this although the petition may have been demurrable on the ground that it did not state facts sufficient to constitute a cause of action.”
In the opinion it was said:
“The defendant, having been summoned into court, was compelled to take cognizance of all subsequent proceedings, and if it was aggrieved by the action of the court its remedy was by appeal; and it could not lie dormant until all remedy in the way of appeal had become unavailable and then go into court and ask that the judgment be set aside as void.” (p. 495. See, also, Johnson v. Jones, 58 Kan. 745, 51 Pac. 224; Horner v. Ellis, 75 Kan. 675, 90 Pac. 275; Brumbaugh v. Wilson, 82 Kan. 53, 107 Pac. 792; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; 15 R. C. L. 864; 1 Freeman on Judgments, 5th ed. 761.)
The judgment is affirmed. | [
-14,
-4,
-8,
28,
106,
-32,
42,
-101,
65,
-79,
-75,
83,
-53,
-118,
4,
109,
118,
45,
116,
104,
-18,
-77,
15,
106,
-42,
-45,
-45,
-35,
-79,
76,
-12,
-58,
12,
32,
-54,
21,
-26,
-126,
-63,
-108,
-50,
37,
-88,
-28,
-39,
40,
52,
107,
80,
71,
-43,
-86,
-13,
42,
29,
66,
-23,
44,
91,
-89,
-48,
-16,
-65,
-123,
93,
22,
49,
38,
-104,
97,
88,
-82,
-112,
49,
-124,
-24,
86,
-90,
6,
-12,
45,
-103,
41,
102,
98,
24,
117,
-17,
124,
-104,
15,
-2,
-115,
-90,
-106,
88,
-93,
42,
-74,
-103,
-3,
80,
71,
108,
-26,
5,
-99,
108,
7,
-37,
-46,
-45,
-113,
-8,
-110,
27,
-41,
-127,
48,
97,
-49,
-60,
92,
-9,
122,
59,
-113,
120
] |
The opinion of the court was delivered by
Harvey, J.:
This is an appeal from a judgment confiscating an automobile belonging to appellant, Andy Anderson, on the ground that it had been used in the unlawful transportation of intoxicating liquor.
Appellant makes two points:
First, that ‘the intoxicating character of the liquor was not sufficiently shown. The witnesses testified that it was corn whisky, and that corn whisky is intoxicating. Whisky is presumed to be intoxicating without further proof. The evidence on this point was sufficient to sustain the judgment.
Second, it is argued that there is no evidence that the appellant Anderson knew that his companion, Ong, had intoxicating liquor in the automobile. The facts concerning this, as disclosed by the evidence, .are substantially as follows: Anderson and Ong lived at Madison. On the day in question they drove to Emporia and were there in the evening. After dark a police officer observed a man, probably Ong, deposit something by a fence near the alley back of a restaurant. He called .another officer and the two watched to see if ■anyone came for it. Later in the evening Anderson drove his automobile along the alley. Ong was in the car with him. As he neared the place where the deposit had been made Anderson slowed the speed of his car, but did not stop. Ong jumped from the automobile, ran to the place where the deposit had been made, picked up the bottle, which later proved to contain com whisky, ran back and got into the automobile, and Anderson speeded up. The officers called upon him to halt, but Anderson drove faster. The officers fired several shots at the automobile, when Anderson concluded to stop, and did so. The bottle of corn whisky was thrown or dropped upon the pavement and broken, but the officers obtained a part of its contents.
The case was tried to the court. The only witnesses were the two officers. Neither the appellant nor Ong testified. From these facts appellant argues that Ong was an invited guest of Anderson and that the proof fails to show that Anderson knew for what purpose Ong jumped out of the automobile, or that he picked up and had carried in the automobile the bottle of com whisky. The evidence is just as well open to the construction that the parties were engaged in a joint enterprise to obtain and transport the whisky. It is reasonable, at least, to presume that Anderson knew why he was driving down the alley, why he slowed down without stopping, what Ong was getting when he jumped out, what he brought back to the car, and why he hastened away and failed to heed the first commands of the officers to halt. This is a civil action, and if either Anderson or Ong knew of any facts which would tend to rebut this reasonable presumption they were at liberty to place them before the court by their testimony. The fact they did not do so indicates their testimony on this point would not have been to their advantage. If Anderson knew that the whisky had been deposited and drove down the alley on purpose to get it for himself and Ong, the fact that Ong got out of the car and got it instead of Anderson getting out to get it. himself, would make no material difference. We think the evidence ample to justify the judgment of the court.
Appellant relies upon State v. Metz, 107 Kan. 593, 193 Pac. 177, but the evidence here does not' bring the case within the rule there announced.
The judgment of the court below is affirmed. | [
-16,
-18,
104,
-116,
58,
112,
42,
-70,
64,
-121,
-9,
83,
-85,
-61,
1,
99,
-20,
127,
116,
43,
-35,
-89,
7,
1,
-46,
-45,
-6,
-123,
53,
-18,
-51,
124,
12,
-92,
-117,
85,
102,
88,
-47,
-44,
-114,
1,
-80,
-24,
120,
24,
36,
59,
7,
15,
97,
-97,
-61,
46,
24,
-45,
-23,
56,
75,
-67,
-48,
-8,
9,
-99,
15,
22,
-78,
52,
-99,
-91,
-40,
26,
28,
-79,
16,
-8,
113,
-92,
-124,
116,
47,
-103,
-116,
98,
99,
4,
89,
43,
-19,
-119,
45,
-18,
-97,
-89,
92,
25,
73,
97,
-105,
-99,
126,
17,
-81,
116,
-37,
85,
95,
100,
7,
-117,
20,
-111,
73,
56,
18,
19,
-49,
-93,
48,
113,
-51,
122,
92,
85,
82,
27,
-114,
-46
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover $3,275 rent for a business building situated at Tonkawa, Okla., and recovered judgment for $1,600, from which the defendant Henry Leben appeals.
At the close of the evidence for the plaintiff, Henry Leben demurred thereto. That demurrer was overruled. Of the order overruling the demurrer Henry Leben complains.
The plaintiff alleged that he leased the property to J. M. Pollatschek and Henry Leben, as partners, for a monthly rental of $125; that the property was occupied from March 1, 1923, to December 1, 1923; and that the property had been leased for three years from March 1, 1923. The lease was in writing, and was from the plaintiff to J. M. Pollatschek, and was signed by the plaintiff and Pollatschek, but not by Henry Leben; his name was not mentioned in the lease nor was any partnership mentioned in it. The partner ship was put in issue and likewise the authority of Pollatschek to act for Leben. Henry Leben contends that there was no evidence to show that he was a partner with Pollatschek nor that Pollatschek was the agent of Leben. To show some of the evidence of the plaintiff, we quote from the abstract of the appellant as follows:
“Mr. Porter introduced over the objections of the defendant, Henry Leben, and had admitted in evidence the telephone directory, being that part of page 46 of telephone directory of March, 1925, which shows no Henry Leben, but shows R. Leben, 735 S. Lawrence. Thereafter Mr. Porter, over the objection of the defendant, Henry Leben, introduced in evidence and was admitted that part of page 373 of the city directory of the city of Wichita for 1923, being as follows: H. Leben, b. 735 S. Lawrence. At page 492 the directory of the same volume: Joseph M. Pollatschek (Anna), manager State Army and Navy Store, r. 735 S. Lawrence avenue. P. 584 of the same directory is, the State Army and Navy Store, J. M. Pollatschek, manager. Army goods. 409 E. Douglas. Following that is the State Army and Navy Store, Roy Leben, manager, 502 E. Douglas. . . .
“Witness identified book dated March, 1925, as a telephone directory of the city of Wichita, published by the Southwestern Bell Telephone Company, and that the 1923 city directory, issued by R. L. Polk and Company for the year 1923 and distributed throughout Wichita. . . .
“Thereafter Mr. Porter, over the objections of the defendant Henry Leben, introduced in evidence page 398 of the city directory of 1923, and two items being as follows: Bessie Leben, widow of R. Leben, r. 735 S. Lawrence; Henry Leben, manager State Army and Navy store, b. 735 S. Lawrence ave. Page 590 of the same volume was introduced and read as follows: State Army and Navy Store, J. M. Pollatschek, mgr. Army goods. 409 E. Douglas, 502 E. Douglas.
“Thereafter, over the objections of the defendant Henry Leben, page 507 of the same volume of 1924 was admitted in evidence under the name of Joseph Pollatschek (Anna), manager State Army and Navy Store, b. 735 S. Lawrence ave.”
The business conducted at Tonkawa was known as the State Army and' Navy Store. There was evidence which tended to prove that some of the checks received by the plaintiff for rent were signed “The State Army and Navy Store,” and some were signed by “R. Leben.” At the time of the trial, which occurred April 19, 1925, R. Leben had been dead about five years. R. Leben and Henry Leben were different persons. The defendant’s evidence disclosed • that Henry Leben was the administrator of the estate of R. Leben. We quote again from the abstract of the appellant:
“W. M. Schaeffer, on behalf of the plaintiff, testified as follows: . . .
“Witness operates a truck line, and on a few occasions witness’ trucks hauled tents and tarpaulins from Wichita to Tonkawa for the State Army and Navy Store. Had a hard time to collect his money, for the reason each end wanted the other end to pay the freight. Witness moved considerable goods back from Tonkawa to Wichita about the 20th of October, 1923. The goods was taken to the State Army Store, where Mr. Leben appeared to be in charge, and the goods was mostly piled up in the storeroom in the back end of the building, and some of the goods was placed in the main building. Witness was paid for hauling the merchandise by Mr. Leben, but could not state whether it was Henry Leben.”
There was no other evidence to prove a partnership between J. M. Pollatschek and Henry Leben or that Pollatschek acted as the agent of Leben. That evidence was not sufficient to warrant the court in submitting to the jury the question of partnership or of agency. These involve the same proposition as that involved in the demurrer to the evidence.
The judgment is reversed, and the trial court is directed to enter judgment in favor of the defendant Henry Leben.
Johnston, C. J.-, dissenting. | [
-16,
110,
-24,
-49,
26,
96,
46,
-38,
120,
-128,
55,
83,
105,
-45,
5,
121,
83,
93,
-48,
105,
-2,
-73,
6,
-30,
-42,
-13,
-5,
-59,
-72,
-51,
-27,
-58,
76,
32,
66,
-105,
-122,
-64,
69,
-36,
-50,
4,
-86,
-32,
-39,
0,
52,
89,
116,
73,
49,
13,
-13,
40,
28,
-33,
-83,
60,
-49,
-8,
-112,
-15,
-53,
13,
-1,
19,
16,
20,
-100,
5,
88,
26,
-48,
-79,
8,
-87,
123,
-90,
-122,
116,
103,
-71,
44,
38,
99,
34,
85,
-21,
-20,
-84,
47,
-5,
-99,
-89,
-80,
88,
-93,
101,
-66,
-99,
49,
20,
6,
-2,
-2,
20,
25,
109,
15,
-113,
-108,
-79,
15,
50,
-98,
-101,
-1,
-109,
-79,
112,
-59,
-92,
92,
70,
90,
-69,
-121,
-80
] |
The opinion of the court was delivered by
Hopkins, J.:
These actions involve the construction of section 19-806 of the Revised Statutes, enacted in 1923, providing for the appointment in certain counties of deputy sheriffs to patrol the highways. The cases were tried together on agreed statements' of fact. In one, Toland sought to recover for services as deputy sheriff and road patrolman. In the other the county sought to recover possession of a motorcycle which had been furnished Toland for use in the performance of his duties. Toland prevailed, and the commissioners appeal.
The statute under consideration reads:
“That the sheriff of any county-in the state, having a population of 65,000 or more, is hereby authorized to appoint, with the approval of the board of county commissioners of'his county, such number of deputy sheriffs, not exceeding three, as in his judgment and the board of county commissioners’ judgment may deem necessary to patrol the highways in their county, and the board of county commissioners of such county are authorized to fix the salaries of such deputy sheriffs, in a sum not to exceed $120 monthly for the first year, $130 monthly for the second year, and $140 monthly for the third year, and to provide such deputy sheriffs with motorcycles, or'other suitable means of conveyance, for the proper discharge of their duties in enforcing the traffic laws and regulations for the operation of vehicles and motor vehicles on the public highways of the county and state. Where the compensation is dependent upon the period of service, it shall be established by the length of time each of said members has continuously served in such work.” (R. S. 19-806.)
On March 29,1923, the sheriff requested the board of county commissioners to fix the number of deputies necessary to patrol the highways in Sedgwick county. On April 14 following, the board adopted .a resolution providing that the county adopt the road-patrol system “for at least six months, for the purpose of seeing if it proves beneficial to the citizens of the county.” On June 3, the sheriff appointed Toland as one of three deputies. On June 18 the commissioners adopted a resolution confirming the appointments for a period of not to exceed six months. Some time later difficulties arose between the sheriff and one of the commissioners, and an action was •commenced by the commissioner against the sheriff for $25,000. A little later Toland had trouble with one of the commissioners, and the •commissioners procured Toland’s arrest. On November 28 the commissioners adopted a resolution providing for a discontinuance of the services of the three patrolmen, effective December 17,1923, and had a copy of the resolution served on Toland. The patrolmen were employed as deputy sheriffs at a monthly salary of $120. They continued in their work until May 31, 1924. Toland sued to recover salary from December 17, 1923, to May 31, 1924.
When Toland began work as patrolman he was furnished with a motorcycle of the value of $300 to be used in the performance of his duties. The commissioners demanded possession of the motorcycle on December 17, 1923. At that time it was of the value of $250. At the time of the trial it had a value of $150. Toland had possession and control of the motorcycle from the time of its delivery to him until .May 31, 1924. During the time he used it in his patrol work it became necessary to have it repaired. Repairs were made amounting to $99.47. With the knowledge and consent of the sheriff, when Toland quit work as deputy sheriff he left the motorcycle with the repair company until a claimed lien for the amount due had been paid. Afterwards, and before the trial, it was delivered into the possession of the commissioners. A change occurred in the personnel of the board of county commissioners January, 1925. Three deputy sheriffs were appointed under the statute to patrol the highways of Sedgwick county, who ever since have been and now are patrolling such highways and drawing their salaries as provided in the act under consideration.
Toland contends that the word "authorized” used in the statute is mandatory; that since the commissioners determined the necessity of deputy sheriffs to patrol the highways, it was within the power of the sheriff to appoint such deputies; that he (the sheriff) is responsible for their acts; and that they are under his supervision and ■control.
The commissioners contend that the statute empowers the board of county commissioners to employ the necessary deputies and to discharge them at any time, and that such matter of employment is left entirely to the judgment of the county commissioners as to whether such deputies are needed, the length of time they are needed, and whether their services are satisfactory.
“In determining the intent of the legislature the court is not limited to a mere consideration of the words employed, but may properly look to the purpose to be accomplished, the necessity and effect of the statute, under the different constructions suggested.” (City of Emporia v. Norton, 16 Kan. 236.)
“In construing a statute the court may look to the history of the times, to the causes which induced its enactment and to the object sought tg be attained.” (State, ex rel., v. Davis, 114 Kan. 270, 287, 217 Pac. 905.)
The question in the instant case is, Why was the statute enacted, and what was its purpose? It is a matter of common knowledge that during the past several years transportation over public highways has undergone a radical change. The dirt road has given way to the hard-surfaced road. Horse-drawn vehicles have almost entirely given way to motor'vehicles. Instead of traveling from three to seven miles an hour over public highways, the public is now traveling from twenty-five to seventy-five miles an hour. Many drivers of motor vehicles have shown a reckless and total disregard for the rights of others upon the highways, causing innumerable accidents, loss of property, and in some instances loss of life. Confronted with this situation, the legislature sought to restrict and regulate traffic on public highways, and in an endeavor so to do passed the act under consideration.
Did the legislature intend the word “authorize” as used in the statute to be mandatory? We think not. The primary meaning of the word “authorize” is to empower, to give a right to act. The more reasonable view in our opinion is that the word as here used is permissive only. The legislature doubtless considered that there might be counties having a population of 65,000 where a road patrol would be needed, and others where it would not, and decided that the authorization should be granted in those counties where the sheriff and the board of county commissioners considered the conditions were such as to require patrol. While it is true that in many statutes the word authorize may imply a command, we think if the legislature had so intended here it would undoubtedly have used other words to express such intention. A mandatory construction has prevailed only in cases where the statute under consideration, when taken as a whole and viewed in the light of surrounding circumstances, indicated a purpose on the part of the legislature to enact a law mandatory in its character. (State v. Franklin County, 84 Kan. 404, 114 Pac. 247; City of Cottonwood Falls v. Chase County, 113 Kan. 164, 213 Pac. 648.) The act specifies “that the sheriff ... is hereby authorized to appoint, with the approval of the board of county commissioners of his county, such number of deputy sheriffs, not exceeding three,” etc.
We are of the opinion the act does not give the commissioners the power to fix the term of such deputy sheriffs, and in the instant case, while the commissioners passed a resolution attempting to fix the term, they did not do so. The resolution reads:
“Kernan moved that the county adopt the road-patrol system as provided for by the 1923 legislature, for at least six months, for the purpose of seeing if it proves beneficial to the citizens of the county.”
Although the resolution did not fix the term of the deputies appointed by the sheriff, yet it may be said to have fixed a minimum time, but did not prohibit a maximum time.
The resolution approved the request of the sheriff that a patrol be established; that is to say, the board joined with the sheriff in the establishment of the patrol. Whether or not the patrol once established could be discontinued by the commissioners without the con sent of the sheriff need not be decided, inasmuch as both the sheriff and commissioners are now of the opinion it should be continued.
The sheriff and commissioners had the right and power under the act to create the road patrol and to fix the number of members of the patrol, not exceeding three. The commissioners had the power to fix their salaries, while the appointing power, supervision, direction and control of the deputies was in the sheriff. (R. S. 19-808; Jones v. Simmons, 115 Kan. 505, 223 Pac. 284.)
The judgment is affirmed. | [
-16,
-18,
-12,
-98,
75,
32,
27,
-95,
88,
-79,
-25,
83,
-85,
-54,
17,
49,
-69,
103,
-43,
105,
-27,
-14,
83,
35,
-78,
-45,
-101,
-49,
55,
77,
-12,
53,
72,
48,
-54,
-43,
70,
64,
-123,
84,
-50,
7,
-71,
-27,
82,
2,
56,
45,
18,
-49,
117,
-113,
-93,
42,
16,
119,
105,
104,
-37,
33,
17,
-15,
-97,
-107,
111,
14,
-77,
32,
24,
1,
-8,
46,
-119,
49,
-60,
-5,
123,
-122,
-110,
-12,
77,
-103,
8,
6,
110,
1,
60,
-51,
-20,
-71,
12,
-70,
-113,
-90,
-99,
25,
75,
10,
-106,
-99,
118,
20,
2,
124,
-29,
69,
-33,
100,
37,
74,
-106,
-93,
77,
-74,
-128,
17,
67,
1,
16,
49,
-58,
-10,
87,
69,
80,
23,
-121,
-96
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action for rent on farm land. It was tried to the court. A general judgment was rendered for plaintiff, and defendant has appealed.
The controversy depends upon whether plaintiff was the owner of the farm land in question, and arises in this way; In 1913 the plaintiff purchased lot five (5) and the northeast quarter of section ten (10), township ten (10), range eleven (11), in Pottawatomie county, and the land was conveyed to him by general warranty deed. The Kansas river runs through section ten. At the time the land was originally surveyed by the government in 1862 the Kansas river entered section ten from the northwest on the north line of the section, the east bank being about twenty-five rods west of the center of the section on the north line, and ran through the northwest quarter of the section almost directly south, into the southwest quarter of the section, where it turned east. According to the government survey the northeast quarter of the section was a full 160 acres. Lot five was that tract of land between the west line of the northeast-quarter of the section and the river bank. It all lay in the northwest quarter of the section, and was a half mile long north and south and contained about thirty-six acres. From the time of the government survey until plaintiff purchased the land the flow of the river through the northwest quarter of the section had changed to the east until all of lot five, except a few acres in the northeast corner, had become either a part of the river bed or had at some time been overflowed by the water. Much of this change was caused by the floods of 1903,1905 and 1908. About 1915 the river made a radical change in its course, so that the main flow of the stream entered section ten on the north line twenty-five or thirty rods east of the center of the north line of the section and flowed southeasterly for some distance and then southwesterly, through the northeast quarter of section ten, connecting with the old river channel in the southeast quarter of the section. In 1917 plaintiff’s father, proceeding under R. S. 72-2128, purchased from the state what was claimed to be a part of the old river bed in the southwest and southeast quarters of section ten, and also 2.49 acres in the shape of a triangle in what was the southwest corner of the northeast quarter and the southeast corner of lot five of section ten. This 2.49 acres is not in the abandoned river bed, between the meandered lines of the stream as shown by the United States survey. Much of lot five and all of that part of the northeast quarter of section ten lying west of the late river channel grew up in willows and brush of various kinds. About 1920 defendant went upon the land and cleared away the brush and put under cultivation about forty acres of this land and raised corn thereon in the farming seasons of 1922 and 1923. It is for the rent of this land that this action is brought. Plaintiff contended he had an agreement with defendant by which he was to farm the land as tenant of plaintiff and pay to him the usual crop rent or its value. Defendant denies having made such an agreement. But irrespective of any agreement concerning the matter, if the land really belonged to plaintiff, and was in fact farmed by defendant, he would be liable to plaintiff for the reasonable rental value. (R. S. 67-520; Mortgage Co. v. Elsea, 85 Kan. 106, 116 Pac. 249.) Defendant did not claim to own the land. He claimed the right to occupy and farm the land without paying rent to plaintiff, on the ground that he leased from his father the 2.49 acres above, mentioned, which his father purchased from the state, and that the remaining portion of the ground which he cultivated belonged to the state as an old river bed, and hence that the plaintiff was not entitled to rent from any of the land farmed by him.
It seems clear from the evidence that when the land was patented by the government there .was conveyed to the grantee all of the northeast quarter of section ten and lot five, which was about thirty-six acres of land east of the then bank of the stream and west of the center line of the section, and that this title has pássed to plaintiff by mesne conveyances. If plaintiff has lost title to any of this land it has been because of the change of the river bed by erosion; that is, by gradual and imperceptible change. If the change in the channel of the stream was made by avulsion, the title of the plaintiff would not be affected. (Wood v. Fowler, 26 Kan. 682; McBride v. Steinweden, 72 Kan. 508, 83 Pac. 822; Fowler v. Wood, 73 Kan. 511, 85 Pac. 763; Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845; State, ex rel., v. Akers, 92 Kan. 169, 140 Pac. 637; Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060; Craig v. Leonard, 117 Kan. 376, 232 Pac. 235.) Hence it became a question of fact as to how the change in the channel of the stream came about. Although the trial court made no specific findings of fact, its general judgment in favor of plaintiff can be sustained only upon his finding that the change was made by avulsion. Appellant contends that this view is not supported by the evidence. The evidence upon this question was conflicting. As to part of the change, especially that made in 1915, there is no doubt about that having been effected by a radical change, properly called avulsion. That'can also be said of the changes made in 1903, 1905 and 1908. As to the changes made in prior years, the evidence is conflicting. As to a part of the land, the finding of the court might have been the other way, but there is evidence to sustain the finding made, and that is conclusive on this court.
As to the 2.49 acres, which defendant claims to have leased from his father, who had purchased it from the state, appellee contends it was not in the abandoned bed of the stream, between the meander lines as shown by the government survey, hence that the state had no authority to sell it under R. S. 72-2128. This contention is sustained by the evidence.
Finding no error in the record, the judgment of the court below is affirmed. | [
-15,
110,
-72,
77,
-104,
-24,
104,
-102,
73,
-79,
-12,
83,
109,
-54,
8,
97,
98,
45,
113,
121,
-58,
-77,
31,
-64,
-112,
-13,
-7,
77,
-69,
93,
-12,
71,
76,
16,
10,
-107,
-58,
-62,
-59,
-36,
-50,
6,
-119,
65,
-43,
66,
60,
107,
114,
78,
53,
15,
-13,
44,
29,
-61,
-119,
44,
-53,
44,
17,
-8,
-68,
30,
63,
4,
33,
36,
-108,
3,
72,
42,
-112,
57,
-96,
-20,
127,
38,
-122,
117,
15,
-101,
40,
-90,
103,
3,
44,
-49,
108,
-119,
14,
-37,
-119,
-90,
-108,
72,
99,
-128,
-68,
-99,
125,
20,
71,
122,
-31,
5,
29,
-20,
7,
-114,
-108,
-79,
-113,
-92,
-128,
3,
-5,
3,
49,
112,
-51,
-30,
76,
71,
112,
27,
-113,
-71
] |
The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages for false arrest. The parties resided at Paola. Defendant Altman held a chattel mortgage executed by the plaintiff, covering two horses, a wagon, and a set of harness. Altman also loaned the plaintiff another team of horses to keep for their feed. The plaintiff left Paola, taking with him the property mentioned, went first to Olathe, then to Jackson county, Missouri, near Kansas City. On March 5, 1924, the defendants, and one Borovicka, appeared at the place where plaintiff was working and compelled.him to leave his work and return with them to Paola. Altman was a retired farmer, owning forty or fifty head of horses and mules. Fleming was a constable of the city of Paola. The plaintiff recovered judgment for $2,250, and defendants have appealed.
There was evidence that some time after execution of the mortgage the plaintiff had a conversation with Altman, in which he stated to Altman that he would like to go and work on a pipe line that was being constructed through Johnson county to Freeman, Mo.; that Altman said, “You go anywhere you can get work”; that the plaintiff went first to Olathe, then worked at the Bell Memorial Plospital, Thirty-ninth street, Kansas City, Kan., and next went, with the property in question, to his sister’s home near Swope Park, and on March 4, 1924, hired to John Weston, yard foreman of the P. P. Lewis Lumber Company; that the defendants and Borovicka drove to where plaintiff was working on March 5. Among other things, the plaintiff testified that Altman said to him, “We will have to take you back”; that the plaintiff said he would lose his job, that he was in bad shape, and that his family needed the money; that Fleming said, “We are going to take you back to Paola with us”; that on the journey back Fleming threw back his coat and showed his gun; that after they arrived at Paola they drove to the home of Sam Shively, county attorney; that Altman and Shively had some conversation while the others sat in the car; that Altman returned to the car, and Fleming said:
“ ‘What are you going to do?’
“Altman says, ‘Sam can’t give me a warrant; take him up and throw him in jail.’
“So they came on to the jail, drove down to the jail door. Bill (Fleming) went up and rang the door bell. Jack Barnes, the sheriff appeared in the door. Lon (Altman) says, ‘Now, Gariety, you have never been in jail, you have never been arrested, you know that will be an awful disgrace on your family and a disgrace on your parents for me to throw you in jail here. What can you do about it?’
“I said, T can’t do nothing.’
“Lon says to Bill, ‘Throw him in jail.’
“Bill said, ‘We are already in trouble, you had better let that man go home.’
“The sheriff was standing in the little entrance where they take them in. Borovicka and Lon and I were in the car and Bill was out. Lon says, ‘I don’t want to throw you in jail. If you will go up and bring that stuff back and pay Mr. Fleming $15 for this trip up there and put that back in Paola, I mil let you go home.’
“And I said,'All right, I will do that! ”
The defendants- contend that the court erred in admitting evidence that the plaintiff had a wife and eight children. In support of their contention they cite: Kansas Pacific Rly. Co. v. Pointer, 9 Kan. 620; City of Parsons v. Lindsay, 26 Kan. 426; City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217; Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887; Union Pac. Rly. Co. v. Hammerlund, 70 Kan. 888, 79 Pac. 152.
The cited cases were all actions for damages for personal injuries negligently inflicted. They are not applicable here. Bodily injuries to one’s person are to be distinguished from injuries arising from false imprisonment where malice is claimed and revenge the motive, and where mental distress, suffering and loss of wages are elements of recovery. Inconvenience, disgrace, worry and humiliation are elements of damage in cases of false arrest. However, it appears that the defendants themselves developed part of the evidence that the plaintiff was a man of family, and are hardly in position to complain.
The defendants contend that the court erred in admitting evidence that the plaintiff lost his position because of being taken from it to Paola. There was evidence that after the plaintiff was taken from his work, Mr. Weston, the foreman to whom he had hired, procured another man to take his place. Loss of time and interruption of business are elements of actual damage for false imprisonment (Zimmerman v. Knox, 34 Kan. 245, 8 Pac. 104), and evidence of the loss of plaintiff’s position through the acts of the defendants was not improper.
Complaint is made of the instructions, first, that the court erred in using the word “coerced.” The instruction in which “coerced” was used, reads:
“The first and principal question for your consideration is \yhether the plaintiff was unlawfully arrested, coerced, or his liberty restrained by the defendants as alleged in his petition, and the burden is upon the plaintiff to prove this by a preponderance of the evidence.”
The argument is made that the word “coerced” could have been understood by the jury as something other and different from the actual allegations in the petition.
The actions of the defendants from the time they approached the plaintiff where he was working until after they released him at the jail were sufficient basis for the use of the word “coerced.” Certainly, under all the circumstances, no prejudice could have resulted, nor was the word improper in the sense in .which it was used. In another instruction the court told the jury:
“It is sufficient to show that the defendants at any time or place in any manner restrained the plaintiff of his liberty, or detained him in any manner from going where he wished or prevented him from doing what he wished, provided this is done without legal authority.”
The defendants argue that this instruction widened the field far beyond the allegations in the plaintiff’s petition; that the words, “any time,” “any place,” “in any manner,” “from going where he wished or prevented him from doing what he wished,” and with vague language, emphasized that the defendants were without legal authority, unless they had a requisition or warrant or something of that kind.
In our opinion, the instruction, considered in connection with the other instructions, is not subject to the criticism offered. The gist of the action of false arrest or false imprisonment is the illegal detention of the person without lawful process, or it might be the unlawful execution of lawful process.
False arrest or imprisonment is any unlawful physical restraint by one of another’s liberty, whether in prison or elsewhere. (S. H. Kress & Co. v. Roberts, 129 S. E. 244 [Va.]. See, also, Comer v. Knowles, 17 Kan. 436; Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005, post; Note in 20 L. R. A., n. s., 968; Schultz v. Enlow, 205 N. W. 972 [Ia.]; Bragg v. Hatfield, 124 Me. 391; Vernon v. Plumas Lumber Co., 234 Pac. 869 [Cal.].)
Complaint is made of instruction No. 5, which reads:
“You are advised that there is evidence that the defendant Fleming was: a constable in Miami county, Kansas, and you are advised that as such constable in Miami county, Kansas, said Fleming would have no legal authority to go into the state of Missouri and make an arrest, and if the de fendants did go into the state of Missouri and arrest the plaintiff without lawful process from any court of Missouri, then this would constitute an illegal arrest and restraint.”
The defendants argue that the conditions of the mortgage prevented the plaintiff from taking the property not only from the county but from the state, and that defendants were justified in attempting to recover it, and that the instruction as given is clearly a misdirection to the jury. In Garnier v. Squires, supra, it was said:
"An arrest by an officer of the law without warrant will not constitute false imprisonment if the officer arresting had reasonable grounds to believe that a felony had been committed; but a private person arrests without a warrant .at his peril, and it will be false imprisonment unless it can be shown that a felony has actually been committed.
“The law contemplates that an arrest, either by an officer or a private person, with or without a warrant, is a step in a public prosecution, and it must be made with a view of taking the person arrested before a magistrate or judicial tribunal for examination or trial; and if the purpose of the arrest and detention is forcibly to compel the pajunent of money, and not to accomplish the prosecution and punishment of the prisoner by legal methods, the restraint is unjustifiable and illegal.” (Syl.)
In this connection the plaintiff directs attention to the fact that the defendants neither pleaded nor attempted to prove any justification of their actions. Any justification of defendants’ actions must necessarily have been submitted to the trial court before being .available for review.
Other complaints with respect to the instructions have been given ■careful consideration, but no error is discerned.
It is contended that the court erred in overruling the motion for .a new' trial. Among other things it is argued that the verdict was so excessive as to show that it was given under the influence of passion and prejudice. While in some respects the amount appears to be large, we cannot say,- under all the facts and circumstances, that it showed passion and prejudice on the part of the jury, or was .so large as to shock the conscience of the court.
Various other complaints have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
112,
102,
-80,
47,
74,
-64,
46,
-104,
-13,
-111,
-74,
83,
105,
-63,
4,
109,
104,
61,
85,
105,
-60,
-74,
5,
-66,
-46,
-13,
57,
-43,
-71,
77,
-28,
-57,
77,
112,
74,
95,
-90,
16,
-59,
92,
-114,
0,
-88,
-20,
-37,
88,
48,
121,
0,
74,
49,
-113,
-21,
42,
81,
-10,
44,
46,
-53,
63,
-80,
-16,
-101,
-51,
111,
6,
-95,
36,
-104,
39,
88,
44,
-104,
113,
1,
-88,
114,
-12,
-122,
84,
101,
-103,
44,
38,
102,
33,
93,
-49,
-24,
-103,
15,
120,
-113,
-122,
-112,
88,
75,
100,
-66,
-99,
121,
16,
6,
-2,
-9,
29,
-99,
104,
7,
-113,
-108,
-77,
15,
50,
-102,
11,
-5,
5,
37,
97,
-124,
98,
77,
70,
120,
-101,
15,
-15
] |
The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of. murder in the first degree, and appeals.
About ten o’clock on the morning of March 31, 1925, the defendant shot Arthur Seals with a shotgun on a public highway two miles west of the north part of Pleasanton; according to the defendant’s claim, in self-defense. Seals died in a hospital at Fort Scott about 1:45 p. m. the same day. The defendant and a brother, N. D. Snow, lived with Mrs. Lena Snow, their sister-in-law, in a house near the scene of the tragedy. Mrs. Snow is the widow of Ira Snow, who died in 1919. The Snows owned and controlled about 800 acres of land in that vicinity. Seals lived with his family on an adjoining farm to the north and across a public road which runs east and west. The shooting occurred on a highway which intersects with the east-and-west road and which runs north and south between two tracts of land owned by Mrs. Snow; one tract of fifty acres on the west, on which was located the house in which the Snows lived; the other tract, a forty-acre pasture, on the east side of the north-and-south road.' Along the south side of the pasture land, running in an easterly direction, is a small creek. The south part of the pasture land is also covered with timber. On either side of the north-and-south road was a wire fence, and along the east side were scattering hedge trees of what had once been a hedge fence. These trees were from six to ten feet on the inside of the fence which marks the boundary of the east side of the road. Mrs. Snow’s house was located on the side of a hill, a distance of about 750 feet west of the place of the crime. At the time of the tragedy the defendant was sixty-three years old and had resided in that vicinity all his life. Arthur Seals had moved with his family to the farm north in the fall of 1922. The defendant had been married in his early life, but had been single for some thirty years. He suffered several strokes of apoplexy, the first, a slight one, in 1920. He was afflicted by these strokes, as are most persons who have so suffered. He could not talk as ordinary persons, was unable to run or to walk fast, and had not been able to do ordinary farm work for a number of years. Seals kept hound dogs, which caused ill feeling between the families. The Snows had posted signs prohibiting hunting on their ground. While the evidence did not show that Arthur Seals actually hunted on the land of the Snows, it showed that when he went back and forth on the roads that the dogs ran over the Snow land, hunted through the pasture, and committed annoying depredations about the Snow farm.
The morning of the tragedy Mrs. Snow discovered the dogs eating eggs from a nest in a pile qf cornstalks and fodder near her barn. She told the defendant, who took a 12-gauge shotgun and some shells, went out and shot at the dogs near the barn. The dogs were frightened away and went in a southeasterly direction towards the creek and timber on the south part of Mrs. Snow’s pasture land. The defendant followed them in that direction down into the pasture, where he again shot one of the dogs, which howled and ran away. The defendant then started on his return toward the house. Arthur Seals on the. morning of the tragedy was plowing for corn in the field immediately across the road north of this pasture land. At the time the defendant shot the dogs near the creek, Seals was near the south end of the field and heard the shot. His father, L. H. Seals, was near by. When Arthur heard the dogs howl he left his plow and went to the fence alongside of the field and called loudly several times, in substance, “What is going on down there?” He then asked his father to hold his team, stating that he was going down to see what was going on. He went west along the east-and-west road to the intersection of the north-and-south road and then south, where he met the defendant. There was a dispute in the evidence as to just where the tragedy occurred on the north-and-south road; the defendant claimed it was about 495 feet south of the intersection of the two roads; the state that it was about 248 feet south of the intersection. The tragedy was witnessed by Mrs. Snow and by the elder Seals, Mrs. Snow being between 750 and 800 feet and Seals between 416 and 617 feet distant therefrom — depending on* the location, which was in doubt because of the dispute — the defendant contending Mrs. Snow; had a better view than the elder Seals. The state contends that the crime was just as great if Martin Snow killed Arthur Seals two hundred feet farther south in the public highway as at the spot identified in the state’s evidence; that the opportunity for the elder Seals to have seen, even at the farthest point fixed by the defense, was muc„h better than the opportunity for seeing by Mrs. Snow. The fact that the deceased was standing at or near the center of the public highway, and that the defendant had just crawled through the fence on the east side of the public highway almost opposite him, was undisputed. The fences were about the same in both locations; that after all it was a disputed question of fact resolved by the 'jury in favor of the state. Mrs. Snow testified that—
“After Martin had got a short distance coming back, I saw Arthur Seals coming down the road toward the south. . . . During that time Martin Snow was coming, back along the road home. Arthur Seals was walking fast and Martin Snow was walking slowly. When Arthur Seals reached this point furtherest south, Martin Snow was on over east in the pasture. . . . After Seals reached the southernmost point, he walked back along this road and about then Martin Snow changed his direction to a more northerly direction.’r They “were about even and Arthur Seals was pretty nearly west of Martin Snow. . . . Martin Snow stopped for some time and Arthur Seals continued to walk on down the road north. He was walking slowly and was looking back and was talking in a loud voice. After he had passed this gap in the fence going north, then Martin came across to the fence and there stopped and crawled through the fence coming west into the road, and after he crawled through the fence, took a few steps out into the road from the fence in a northwest direction, which was in the direction of the gap in the fence on the west side of the road and in the direction of the house. . . . Arthur Seals was out in the road about a hundred feet north of that place. . . . When Martin Snow crawled through the fence and took two or three steps out in the road towards the gap on the west side of the road, Arthur Seals turned around and went back toward Martin Snow. . . . He went faster than he did when he was going north. ... I heard some loud talking, but I could not hear Martin Snow’s voice until after' he had got through the fence and Seals had walked part way back to him. Martin was pointing toward the barn in a westerly direction with his left hand, and while he was pointing toward the barn I heard him say the word ‘eggs.’ I could not distinguish any other word that Martin Snow said. I could not distinguish any of the words that Seals said, but I could hear his voice. When Martin Snow was standing there two or three steps out in the road from where he had crawled through the fence Arthur Seals had walked a ways back toward Martin Snow at the time Martin Snow was pointing toward the barn, and then Arthur Seals ran his hand into his pocket and started in a fast gait toward Martin Snow. When Arthur Seals first ran his hand into his pocket and started in a fast gait towards Martin Snow, I would estimate that Arthur Seals was forty-five or fifty feet away from Martin Snow. After Arthur Seals did that, then I saw Martin Snow raise his gun and after a short space! of time he fired. When Martin raised his gun he stepped back two or three steps and that put him' right up against or nearly against the fence, and Arthur Seals was rushing toward him, and Arthur Seals was within ten or twelve feet of Martin when Martin fired. There were two explosions from the gun. . . . The best of my judgment is that the length of time between the shots was one second. It seemed that the first shot knocked Seals around toward the left, and at the time of the second shot he was just turned slightly around with his elbow slightly thrown out. I did not hear anything else just at that time. After the shots were fired, Seals stood there just a little while and then sauntered away to the north. He probably stood there two or three seconds before he -started north, at a walking gait. About eighty or eighty-five feet north of where he was shot I heard him holloa just as if to attract attention, and he said nothing, but continued to walk along. After he had walked about two rods and a half he holloaed, but I could not distinguish what he said. One time it sounded like he said ‘Pa.’ After Arthur Seals had started back north and had gone a short distance, Martin Snow crossed the road to the gap in the fence and came on up the path to the house.”
L. H. Seals testified that—
“When Martin Snow got up to the fence he walked right up to the fence and crawled through the wire and made a step or two or maybe three toward Arthur to the west. Arthur Seals was standing just west of Snow. After Martin Snow took the step or two out in the road, he pulled up his gun and shot Arthur. Then Martin Snow lowered his gun and Arthur made a little start away from there and he raised up his gun and shot him again. When Snow fired the first shot, Arthur was facing him just a little sideways. After the first shot Arthur started to run north. . . . He had only got started when the second shot was fired. When the second shot was fired Arthur was running and holloaing. I met Arthur at the hedge there, them hedge trees on Fisher’s.place, at the north side of the intersection of the north-and-south road with the east-and-west road. One side of Arthur’s lower jaw was tom away.”
The evidence of the doctors was substantially that the whole left side of the deceased’s lower jaw up nearly as high as the ear was completely shot away, also a greater part of the neck nearly down to the collar bone, also a wound in the back side of his upper right arm. The one in the face and neck was a mortal wound; that there were probably forty or fifty shots in the right arm.
The defendant complains of the- court’s instructions with reference to self-defense, especially instruction 14, which reads:
“The defendant, in connection with his plea of not guilty, has also interposed the plea of self-defense. The court instructs the jury that the right to defend one’s self against danger, not of his own making, is a right which the law not only concedes but guarantees to all men. The defendant may therefore have shot the said Arthur Seals and still be innocent of any offense against the law. If at the time he shot the said Arthur Seals he had reasonable cause to apprehend on the part of Arthur Seals a design to do him, defendant, some great personal injury and there was reasonable cause for him to apprehend the immediate danger of such design being accomplished, and to avoid such apprehended danger he shot, and at the time he did so he had reasonable cause to believe and did believe it necessary for him to use the shotgun in the way he did to protect himself from such apprehended danger, then and in that case the shooting was not felonious, but was justifiable, and you should acquit him on the ground of necessary self-defense. It is not nec essary to this defense, that the danger should have been actual or real or that the danger should have been impending and immediately about to fall. All that is necessary is that the defendant had reasonable cause to believe and did believe these facts. In the exercise of his judgment he must act rationally, but he is justified in acting upon the facts as they appeared to him, and is not to be judged by the facts as they actually were; but before you acquit on the ground of self-defense you ought to believe that the defendant’s cause of apprehension was reasonable, and in this connection it is your duty and you should consider whatever threats were made, if you find any were made, by Arthur Seals of personal violence to the defendant, and which threats were communicated to the defendant, if you so find they were communicated to him. Whether the facts constituting such reasonable cause have been established by the evidence you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the case you cannot acquit on the ground of self-defense, even though you believe that the defendant really thought that he was in danger. But, on the other hand, you are instructed that the law does not permit a person to voluntarily seek or invite a combat or put himself in the way of being assaulted, in order, when hard pressed, he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right to attack, and it will not avail in any case where the difficulty is sought for or induced by the party by any willful act of his own, or where he voluntarily and of his own free will- enters into it, no matter how imminent his peril may become during the progress of the affray. The necessity, being of his own creation, shall not operate to excuse him. Nor is any one justified in using any more force than is necessaiy to get rid of his assailant, but if he does not bring on the difficulty or provoke it or voluntarily engage in it, he is not bound to flee to avoid it, but may resist with adequate and necessaiy force until he is safe.
“If you find and believe from the evidence that prior to the shooting the deceased had made threats against the defendant, you may consider such threats and the reputation of the deceased, together with all the other evidence, in determining who was the aggressor.”
The defendant contends that the instructions should have read:
“Nor is anyone justified in using more force than reasonably appears to him to be necessaiy to get rid of his assailant.”
It will be noted that the court used substantially the words contended for by the defendant. The instructions contained this statement:
“In the exercise of his judgment he must act rationally, but he is justified in acting upon the facts as they appeared to him, and is not to be judged by the facts as they actually were.”
The language used by the trial court was in accordance with what was stated by this court in the opinion, State v. Keehn, 85 Kan. 765, 792, 118 Pac. 851. The law of self-defense was there well treated. It was said:
“The law of self-defense cannot be presented, illustrated and applied all at once in a single statement to the jury. There must be arrangement and sequence in the presentation of declaration and limitation, proposition and qualification, statement and supplementary statement. It is not necessary that such a presentation conform to the rules of rhetoric or that any particular order be followed. It is sufficient if all the necessary statements clearly appear, and when they do so appear they will be read together for the true scope and sense of each.” (Syl. ¶ 6. See, also, State v. Schwenk, 101 Kan. 408, 167 Pac. 743.)
We are of opinion the instruction in question correctly and fairly stated the law applicable to the facts.
The defendant complains of that part of the instruction which states:
“If you find and believe from the evidence that prior to. the shooting the deceased had made threats against the defendant, you may consider such threats and the reputation of the deceased, together with all the other evidence in determining who was the aggressor.”
He argues that it was prejudicial and erroneous to instruct the jury to consider the reputation of the deceased.
“In homicide cases the character of the deceased, as a general rule, is not in issue, and in such cases evidence of his general reputation for having been a dangerous and violent man is excluded; but when the evidence tends to show that the accused committed the homicide in self-defense, under a reasonable apprehension of danger, or when the nature of the killing is in doubt and the evidence wholly circumstantial, such evidence is held admissible.” (Hughes on Evidence, p. 41.)
“If accused undertakes to justify the homicide on the ground of threats made by deceased it is held that the state may prove that the general character of deceased was that of an inoffensive man, and one not reasonably to be expected to execute the threats.” (30 C. J. 173.)
“Where the defense is self-defense, the character of the deceased, especially if known to- the defendant, is material and may be shown by the state.” (Dukes v. State, 11 Ind. 557.)
Where defendant, on trial for murder, testifies “that the deceased assaulted him, and that he apprehended great injury from the assault,” the peaceable character of deceased may be shown in rebuttal. (Fields v. The State, 134 Ind. 46. See, also, State v. Truskett, 85. Kan. 804, 820, 118 Pac. 1047, and Phipps v. The State, 34 Tex. C. R. 560.)
Under the circumstances narrated, the instruction was not improper. Numerous other objections to the instructions have been considered. We are of opinion that they are without substantial merit, and that the instructions as given fairly cover the issues in the case.
Complaint is made of the admission of the dying declaration of the deceased, the question being whether he realized that he was in a dying condition. We think from all the circumstances he could well know from his own physical condition that he could not live. His entire left jaw had been shot away, his neck was tom and lacerated, and he was bleeding profusely. The fact that the local doctor at Pleasanton, to whom he was taken, immediately put him on the train and rushed him to a hospital may well have impressed him with the seriousness of his condition. He told his wife at parting with her at Pleasanton that he would never live. The doctors told him he should make a statement, and called the county attorneys of both Linn county and Bourbon county in reference to the matter. One of the doctors told him at that time that he would not get well. When he was told a statement should be taken he told the doctors that he would not get well, or he knew he would not get well. The statement was taken from him at 12:10 p. m. and he was dead at 1:45 p. m. The declaration, taken in form'of question and answer, reads:
“Who shot you? Mart Snow. Did you assault him in any way? No, sir. How many times did he shoot at you? Twice. Did you threaten to kill him? No, sir. Did you put your hand in your pocket to get your knife? No, sir. I didn’t have any knife. Did not cuss him.”
“It is immaterial how or by what means deceased became conscious that he was dying. . . . And even the expression of hope or of a belief that decedent would recover by a physician does not affect the admissibility of the declaration if the declarant nevertheless believed that he was about to die, and was without expectation or hope of recovery.” (30 C. J. 256.)
In our opinion it was not improper to admit the declaration.
The defendant complains that the court overruled his challenge of the juror J. T. Myers. It appears that the juror first indicated that he had formed or expressed an opinion concerning material issues in the case. On full examination by the court, however, he was determined to be qualified. In our opinion the court committed no error in overruling the challenge. (State v. Stewart, 85 Kan. 404, 116 Pac. 489; State v. Pearce, 87 Kan. 457, 124 Pac. 814; State v. Mullins, 95 Kan. 280, 147 Pac. 828; State v. Smith, 103 Kan. 148, 174 Pac. 551; State v. Henson, 105 Kan. 581, 185 Pac. 1059; State v. Elftman, 116 Kan. 214, 226 Pac. 795.)
Other complaints have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
-15,
120,
-108,
-67,
58,
32,
-54,
-40,
82,
-96,
-79,
95,
-85,
-97,
77,
105,
40,
39,
65,
105,
-122,
-77,
23,
-127,
-110,
83,
122,
-59,
51,
-20,
116,
85,
74,
96,
74,
85,
102,
8,
-59,
84,
-114,
-124,
-87,
-15,
95,
82,
56,
111,
-94,
14,
113,
-114,
-13,
34,
84,
-61,
9,
44,
-37,
-85,
-48,
113,
-54,
5,
-39,
18,
-93,
-29,
-98,
-125,
80,
58,
-39,
49,
0,
-4,
115,
-90,
-124,
116,
101,
-85,
12,
98,
102,
37,
93,
-55,
32,
9,
15,
-6,
-119,
-89,
29,
81,
11,
36,
-98,
-103,
121,
116,
30,
120,
-9,
-43,
93,
32,
69,
-37,
-76,
-111,
79,
42,
-108,
-109,
-5,
-123,
32,
97,
-115,
-26,
92,
69,
124,
-77,
-115,
-78
] |
The opinion of the court was delivered' by
Hopkins, J.:
The plaintiff sued to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant. A verdict was returned for the defendant and against the plaintiff, who filed a motion for a new trial. The motion was sustained, and the defendant appeals.
It was alleged that the defendant railway was negligent in the following particulars: (1) In backing a freight train over the railroad crossing at an unreasonably high rate of speed; (2) in failing to give warning of the train’s approach; (3) in failing to display a light on the rear end of the train as it approached the crossing; and (4) in failing to have a flagman or watchman at the crossing. The answer was: (1) a general denial; (2) that the death of plaintiff’s husband was caused by his own negligence and not'by reason of any negligence on the part of the defendant; and (3) that the deceased and one R. H. Bird were engaged in a-joint enterprise.
The facts were substantially as follows: The deceased was a passenger in a Ford coupé.owned and driven by R. H. Bird. They drove from Hutchinson on the evening of October 11, 1923, en route to Newton. Difficulty with the lights on the car was encountered, and upon reaching Halstead they drove into a garage and had the lights repaired. From there they drove to a restaurant, where they ate lunch, and then started for Newton. They approached the railway crossing at Halstead from the south. At that place are two main tracks, north of which is a spur track to a mill and elevator. The collision occurred at this spur track. Bird testified that when they approached the railroad crossing it was misting or raining; that he stopped his car at the south main line track, got out and wiped the windshield in order to get a better view; that they then proceeded north and ran into a freight train standing upon the crossing ; that he did not see any signals or lights and heard no warning signals; that he could have stopped his coupé on a dirt road traveling at a speed of ten or twelve miles an hour, at which rate he was traveling at the time of the collision; and that he was ten or twelve feet from the train when he first saw it. He denied that either he or the deceased had been drinking that evening. He .also testified that there was nothing the matter with the deceased as they approached the crossing or at the time of the collision, and that the deceased made no complaint of the manner in which he drove the car, and said nothing as they approached the crossing. There was evidence introduced by the defendant that after the deceased and Bird left the restaurant they approached the crossing at a high rate of speed, estimated at twenty-five to thirty-five miles an hour; that the street lights were burning brightly; that it was not raining at the time; that Bird did not stop his car to wipe the windshield as claimed; that the lights on Bird’s car were bright; that the train had backed in on the spur to spot a car at the mill, and at the time of the collision had been occupying the crossing for approximately two minutes; that the defendant’s brakeman was in the middle of the street with a lighted lantern in his hand; that he attempted to stop the approaching coupé with his lantern by waving it across the street; that when the eoupé struck the train the deceased fell out and was caught by the brakeman, who smelled alcohol on his breath; that deceased handed another brakeman a quart bottle of intoxicating liquor, which was turned over to the sheriff and produced at the trial; and that the deceased was taken to a hospital, where a physician who dressed his wounds smelled alcohol upon his breath. Evidence that the deceased was “groggy” and seemed to be drunk while at the garage, and that conversation by him at the restaurant showed he was intoxicated, was rejected by the court because defendant's answer contained no specific allegation of the. deceased’s intoxication.
In McIntosh v. Oil Co., 89 Kan. 289, 131 Pac. 151, it was said:
“Upon the issue whether at a particular time a person was exercising due care for his own safety, evidence that he was intoxicated is ordinarily admissible, not as constituting or conclusively establishing negligence on his part, but as being a circumstance to be considered in determining the matter.” (See, also, Cook v. Railway and Bridge Co., 101 Kan. 103, 165 Pac. 803.)
It has been held in an action against one for operating an automobile at a dangerous rate of speed that evidence of intoxication is admissible though not specifically pleaded. (Milhouse v. Stroud, 190 N. C. 754.) The defendant’s answer in the instant case alleged contributory negligence by the deceased, and that deceased and Bird were engaged in a joint enterprise. Intoxication-in any degree is a circumstance to- be considered in determining the question of contributory negligence. (Hughes v. Chicago, R. I. & P. Ry. Co., 150 Ia. 232.) Evidence of the intoxication of the deceased at the time of the injury complained of was admissible. (29 Cyc. 534, 620.)
In Jensen v. Chicago, Milwaukee & St. P. Ry. Co., 133 Wash. 208, it was said in the opinion:
“Objection is also made to an instruction upon the matter of Sonnabend’s intoxication. This instruction was to the effect that if Sonnabend was at the time of the accident or immediately before under the influence of intoxicating liquor to such an extent as to dull his sense of sight and to prevent, or tend' to prevent, him from exercising the care and caution which a sober and prudent man would have exercised under the circumstances, and that Jensen knew or should have known of Sonnabend’s condition, and thereafter continued to ride with him, that this would constitute negligence on Jensen’s part. The particular objection to the instruction is, not that it does not correctly state the law, but that there is no evidence to justify the giving of an instruction on that subject. Two doctors who appeared at the scene of the accident about twenty minutes after it occurred testified that Sonnabend’s breath smelled strongly of intoxicating liquor. The nurse who took care of Jensen after he was taken to the hospital testified that his breath smelled of liquor. Another witness who was at the scene of the accident soon after it occurred testified that in the wreckage of the car there were found bottles of Canadian beer and broken bottles, and also a whisky bottle that was empty. Broken beer bottles containing the same label as the ones that were found in the car were lying to one side. There was sufficient evidence to justify giving the instruction.” (p. 213.)
In L. & N. R. Co. v. Howser's Administrator, 201 Ky. 548, it was said:
“It was competent for appellant to prove that deceased was intoxicated, if it could do so, or to introduce evidence from which' the jury might reasonably deduce the conclusion that deceased was under the influence of liquor, and therefore not as alert for his own safety as a sober man under like circumstances would have been.” (p. 558.)
In St. Louis, S. F. & T. Ry. Co. v. Morgan, 220 S. W. 281, 282 (Tex.), it was said in the opinion:
“That he was under the influence of intoxicants would be a fact the jury had a right to take into consideration in determining whether he was guilty of contributory negligence or not, but would not of itself convict deceased of such negligence.”
In 22 C. J. 599 the writer says:
“A witness . . . may state whether a person was intoxicated and the extent of his intoxication; and whether he had been drinking or was just recovering from a state of drunkenness.” (See, also, Phillips v. Davis, 3 F. [2d] 798; Schwartz v. Johnson, 280 S. W. 32 [Tenn.]; Guhl v. Warroad, Stock, G. & P. Co., 147 Minn. 44; Pittsburg &c. R. Co. v. O’Connor, 171 Ind, 686; Limbaugh v. Forum Lunch Co., 258 S.W.451 [Mo.]; American Bauxite Co. v. Dunn, 120 Ark. 1; McGowan v. W. & P. Traction Co., 5 Boyce, 281 [Del.]; Wise v. Cleveland C. C. & St. L. Ry. Co., 103 N. E. 866 [Ind.]; Kirby Lumber Co. v. Youngblood, 192 S. W. 1106 [Tex.]; Buddenberg v. Chonsteau Trans. Co., 108 Mo. 394; City of Aurora v. Hillman, 90 Ill. 61; and Wright v. City of Crawfordsville, 142 Ind. 636.)
The verdict being for the defendant, the court sustained plaintiff’s motion for a new trial on the ground that the verdict was procured by the misconduct of defendant’s attorneys. The record shows these proceedings:
“The Court: I will hear from the railroad as to why I should not set the verdict aside for misconduct of the attorneys.
“Mr. Armstrong: Well, for the reason that there was no misconduct.
“The Court: Well, I think there was; and the finding of the court will be to that effect. The motion for a new trial will be allowed. Let the record so show.
“It is therefore by the court considered, adjudged, ordered and directed, that said plaintiff’s motion for a new trial be and the same is hereby sustained, for the reason and upon the ground of misconduct of counsel for defendant during the trial of the case.”
While the trial court did not specify of what the misconduct consisted, it is clear that it was the defendant’s offers to prove that the deceased was intoxicated at the time of the accident.
“The recital in the record that the plaintiff’s motion for a new trial was granted solely upon the ground stated necessarily implies that the trial court was of the opinion that none of the other grounds set out in the motion was well taken. Therefore we can not presume in support of the ruling that the court thought the special findings were contrary to the evidence.” (Sutter v. Harvester Co., 81 Kan. 452, 454, 106 Pac. 29.)
While there appears to have been some controversy between the court and attorneys, largely in the absence of the jury, over the offers of evidence of the deceased’s intoxication, such offers did not constitute misconduct. The evidence should have been received.
One driving an automobile in the nighttime must so operate the car that he may stop within range of vision of his headlights. (R. S. 8-122; Giles v. Ternes, 93 Kan. 140, 153 Pac. 491; Fisher v. O’Brien, 99 Kan. 621, 126 Pac. 317.) The general verdict of the jury was equivalent to a finding that Bird was not so operating the coupé and that the deceased made no objection or complaint of the manner in which Bird operated it. (See, also, Serfas v. Lehigh & New Eng. R. R. Co., 270 Pa. St. 306; Worden v. Chicago & N. W. R. Co., 180 Wis. 551; Yano v. Stott Briquet Co., 184 Wis. 492; Sandoval v. Atchison, T. & S. F. Ry. Co., 233 Pac. 840 [N. Mex.].)
The judgment is reversed, and the cause is remanded with directions to set aside the order granting a hew trial and enter judgment for the defendant. | [
-16,
110,
-80,
-65,
42,
98,
42,
-40,
117,
-95,
-91,
-13,
-113,
-61,
21,
107,
-18,
-99,
-47,
43,
119,
-77,
7,
-94,
-45,
-45,
115,
-52,
-109,
90,
-26,
-9,
77,
32,
-118,
85,
102,
74,
69,
84,
-114,
22,
-23,
-27,
25,
24,
-80,
121,
-42,
79,
17,
-98,
-37,
46,
28,
-29,
108,
41,
123,
-87,
-48,
112,
-118,
7,
93,
2,
51,
32,
-100,
-89,
88,
44,
-40,
49,
8,
-68,
115,
-90,
-121,
-44,
105,
-39,
8,
38,
103,
33,
77,
-17,
-20,
-72,
46,
-6,
15,
-89,
58,
25,
105,
5,
-105,
-99,
124,
114,
7,
-4,
-18,
21,
89,
-92,
1,
-117,
-76,
-103,
-41,
36,
-102,
28,
-21,
-127,
17,
113,
-51,
50,
93,
5,
122,
-101,
-97,
-106
] |
The opinion of the court was delivered by
Johnston, C. J.:
The real matter in controversy in this action was the liability of J. Ralph Dodsworth on a $7,000 note executed and delivered by him to F. M. Liston, payable ninety days after date, secured by a deed on land which contained a clause that it was given “as collateral security for $7,000 to be paid on or before ninety (90) days from date of this deed.” The action by Charles E. Sutton was fi> foreclose a second mortgage on the same land, and he made H. W. Skinner, to whom the $7,000 note and security had been transferred, as well as others, parties to the action. Skinner filed an answer and cross petition alleging the priority of Skinner’s lien and asking for a recovery against Dodsworth on the $7,000 note and the foreclosure of the deed given as security for the note. Dodsworth answered, admitting that he executed and delivered the note to Liston, but he alleged that it was transferred to Sutton as secur ity for a loan of $1,500; that Skinner did not purchase it in due course for a valuable consideration, but took the note and deed as security for the loan to Liston. In reply Skinner denied that he agreed to take the note as a mere security for a loan or that he was to return the note on payment of $1,500, and he further alleged that it was purchased for value and before maturity from Liston, the payee. Verdict and judgment were given in favor of Skinner, and Dodsworth. appeals.
In his behalf it is insisted that the note and deed should be treated as a security for a loan of $1,500, the amount of cash Liston obtained from Skinner uppn the transfer of the note. This contention is based largely upon the clause that the deed was given as collateral security for $7,000 to be paid ninety days from date. It is argued that the note and deed must be regarded as one transaction, and that the clause mentioned was notice to Skinner that the instruments were mere collateral for a loan of money and could not be taken for any other purpose. The note was an absolute and unconditional promise to pay Liston the amount named. The recital in the deed formed no part of the note and did not put Skinner on inquiry as. to. the consideration of the note or that Liston was' the agent of Dodsworth to procure a limited loan on the security of the note. The clause carried the information that the deed was not an outright conveyance, but was in fact a mortgage given as security for the $7,000 obligation. It tended also to show that in addition to the responsibility of the maker of the note the deed was given as security for its payment. Liston was the payee of the note. He had full authority, to transfer it as. the owner of the paper. It was transferred for money and other obligations assumed by Liston in a contract for the purchase of cattle. Nothing on the face of the note which Dodsworth put in circulation suggested an inquiry into the matter of consideration. It appears, too, that before Skinner purchased the note he made inquiry as to the credit of Dodsworth and the nature of the security furnished by the mortgage deed, and Dodsworth, after describing the security, wrote Skinner that as soon as he secured a loan on a Missouri ranch for which he was negotiating he intended to take up' the $7,000 note about which the inquiry was made. His letter contained no' hint that consideration for the execution and delivery of the note had not been received by him, no suggestion that it had been executed and delivered for a special purpose, nor of any restriction on the right of Liston to transfer it. A purchaser of negotiable paper has a right to assume that the relations of the parties whose names appear on it are precisely what they appear to be. Dodsworth says the note was delivered to Liston to obtain $6,000 for him, and the balance received was to' be regarded as commission for Liston’s services in negotiating the note. Assuming that Dodsworth signed and delivered the negotiable instrument to Liston to have it discounted for the benefit of both, he took the risk that it might be passed into the hands of an innocent purchaser before maturity. The fact that Liston may have transferred the paper and used the proceeds for his own benefit in violation of the arrangement is no defense against a bona fide purchaser who obtained the note without notice of such an arrangement. There was testimony that Liston entered into a contract for the purchase of cattle, and that the proceeds of the note were used by him in obtaining an amount of cash, and the balance was applied to payments for feed and other expenses arising out of the cattle transaction. So far as the consideration was concerned, the payments so made amounted to $7,000, the face value of the note purchased.
We find no trial errors nor any ground for a reversal of the judgment. It is affirmed. | [
-14,
124,
-104,
-81,
74,
96,
-86,
-104,
-55,
-80,
-74,
83,
-23,
-61,
20,
97,
-27,
45,
85,
106,
-57,
-77,
23,
99,
-45,
-13,
-15,
93,
-75,
77,
-12,
-41,
76,
54,
-54,
21,
-26,
-62,
-63,
84,
-50,
-121,
8,
69,
-35,
72,
48,
63,
20,
73,
69,
-97,
-13,
47,
29,
78,
109,
42,
107,
61,
-48,
-72,
-101,
-121,
95,
7,
-109,
103,
-100,
71,
-38,
-84,
-112,
23,
-127,
-24,
115,
-90,
-122,
84,
109,
57,
41,
98,
98,
0,
-11,
-5,
-8,
-103,
38,
-26,
-115,
-90,
-108,
88,
1,
4,
-65,
-99,
124,
16,
-58,
118,
-18,
29,
29,
-19,
7,
-49,
-42,
-77,
13,
124,
-104,
11,
-41,
-93,
-80,
112,
-50,
-96,
92,
71,
91,
-101,
-114,
-48
] |
The opinion of the court was delivered by
Harvey, J.:
This is an action to construe the will of Colonel Everard Bierer, late of Brown county. The testator was a practicing attorney for years, and the will is in his own handwriting. The provisions of the will, so far as they are necessary to be noted in this case, are in substance as follows: The first paragraph relates to the erection of a mausoleum for the interment of the testator and his family. The second paragraph gives all of the testator’s property to his wife, should she survive him, for her use during her life or her widowhood. The third paragraph provides:
“Should my dear wife survive me, then after her decease or remarriage, I will and direct that all my real and personal estate with the exceptions hereinafter provided, shall descend and be distributed among all my children in equal shares, the children' or descendants of any of my children who may have deceased taking and inheriting their parent’s share by representation.”
The exceptions noted are: (a) That a son, Samuel, for reasons stated, should have an additional $1,000. (6) A daughter, Retta Shadel, should have the piano, (c) Any advancements which the testator charged on his books should be considered in making the distribution, (d) In the event any child of the testator'died before the death of the testator and his wife, the share of such child should go to that child’s children, if he or she left children, and if not, the same should become a part of the testator’s estate, with a provision that the surviving wife or husband of such deceased child should receive $1,000. (e) In the fourth paragraph a provision is made that the daughter, Anna E. Bokaye, should have, if she desired it, a certain quarter section of land as her distributive share, the value to be determined by appraisement and adjusted in the distribution. (/) In the fifth paragraph an exception is made as to his son Daniel, as follows:
“The sha® of my estate coming to my son, Daniel Bierer, if he survives his mother and myself, shall not go into his possession but shall remain under the control of my executors or their successors as trustees during his life, unless he adopts better habits and shows better aptitude for business and taking care of money and property than he has ever heretofore done, in the judgment of my executors, he to enjoy the proceeds of his share of my estate for himself and children, the principal to be invested in real and personal property for his use, and said property to be distributed to his children in equal shares after his decease. Thereafter should his habits and business qualifications justify my executors in their judgments, as his trustees to do so, they may turn over to him all or part of his share of my estate, or the property in which they may have invested it. Under no circumstances whatever, nor at any time during his lifetime oh afterwards, shall any part of the estate so left to him, ever go to or be possessed by the woman now, or once his wife, or any other woman he may many.”
In other parts of the will the testator nominated executors and authorized them to collect the estate, sell the real or personal property, and distribute it according to the terms of the will. There was also a provision that any of the sons or daughters according to their ages should be entitled to have the family home in Hiawatha at a moderate estimate of value for the same, to be agreed upon by the executors and the one entitled and desiring to take it, so that it may remain in the family.
This will was executed in February, 1907. The testator died December 10, 1910. At the time of his death he left surviving him his widow, seven children, and a grandson, a child of a deceased son. The widow died in May, 1913; she did not remarry. The executors named in the will took charge of the estate and collected and dis tributed it in accordance with the provisions of the will. The executors later qualified as trustees of Daniel Bierer, as provided in the fifth paragraph of the will, and continued in the possession of the share of the property which, had it not been for this paragraph of the will, would have passed to Daniel, until his death. Daniel Bierer died in January, 1925, and left surviving him a widow and two children by his first wife and two grandchildren, being the children of his deceased daughter, Ellen Bierer. The controversy in this case is between the widow of Daniel Bierer, on the one hand, and the children and grandchildren of Daniel Bierer, on the other. The widow claims one-half interest in the sum, about $12,000, in the hands of the trustees, and the children and grandchildren claim it all. The trial court decided against the widow, and she has appealed.
It is argued on behalf of appellant that the fifth paragraph of the will should be disregarded, for the reason that under the third paragraph of the will, upon the death or remarriage of testator’s widow, the estate is to be divided among the children of the testator share and share alike, and that the testator, having, by this provision of the will, given Daniel Bierer a share of the estate equal to his other children, it was not within the power of the testator to make limitations upon that by a later provision of the will. This argument overlooks the fact that by the third provision of the will the property, upon the death of the testator’s widow, “with the exceptions hereinafter provided,” is to descend to his children share and share alike. Appellant contends that the exceptions referred to pertain only to those set out in the third paragraph of the will, but this contention cannot be sustained. The provisions of the fourth and fifth paragraphs of the will should be considered exceptions to the same extent as though separate paragraphs concerning them had not been made, but all of them had been placed in the third paragraph of the will. A testator is not required to write all the provisions of his will in one sentence, or in one paragraph (Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950; Morse v. Henlon, 97 Kan. 399, 155 Pac. 800), and the will should be construed as a whole for the purpose of determining the intention of the testator. (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280; Brown v. Brown, 101 Kan. 335, 166 Pac. 499; Markham v. Waterman, 105 Kan. 93, 181 Pac. 621.)
Appellant cites Johanson v. Johanson, 118 Kan. 103, 233 Pac. 1039, in support of the view that the words, “with the exceptions hereinafter provided,” cannot refer to the fifth paragraph. In that case there was an outright devise of property to the wife. In a later provision the testator attempted to dispose of the wife’s property at her death — a thing he could not do in any event. Here the gift to children is subject to “exceptions herein provided,” and the will states the exceptions in consecutive order, and as to share coming to Daniel, the exception is that this “shall remain under the control of my executors ... as trustees during his life, ... . he to enjoy the proceeds ... for himself and children, the principal to be invested in real and personal property for his use, and the said property to be distributed to his children in equal shares after his decease.” This amounts to the gift of the principal to Daniel’s children, the income only to be distributed to Daniel during his life. Appellant calls attention to the wording, “The share of my estate coming ... to Daniel,” and “his share,” as recognizing the full ownership of this share in Daniel; but it is clear these terms are used as a name for the one-eighth of the testator’s estate then being considered, rather than denoting full ownership of such share in Daniel. So construed these terms are not inconsistent with the other language used in the will.
We need not in this case consider what the rights of the parties would be had the widow of the testator remarried, or had the trustees concluded to turn over to Daniel the possession of the share of the estate which, by the will, was to go to him or to his children, for these situations are not before us. Under the terms of this will this share or portion of the testator’s estate became finally vested in the children of Daniel Bierer, and never at any time vested in Daniel. (Hurst v. Weaver, 75 Kan. 758, 90 Pac. 297.) He received only the income or profits from the investment thereof by the trustees.
Appellant contends that the fifth paragraph by its wording is not sufficient to create a trust. With this contention we cannot agree. The paragraph created what is commonly known as a spendthrift trust, for the benefit of Daniel Bierer and his children, and the language is sufficient for that purpose. (Everitt v. Haskins, 102 Kan. 546, 171 Pac. 632; Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884.) Jt is clear from the will that no part of the testator’s estate was devised or bequeathed to any widow of Daniel Bierer.
It is not necessary to review the many cases which the industry of able counsel has called to our attention. We have examined all of them, and others; there is nothing in any of them in conflict with' the conclusion here reached.
Another point must be noted.' On January 1, 1916, when the executors closed the estate in probate court, that court made a finding and adjudged who were the heirs of Everard Bierer and entitled to share in the distribution of his estate and the amounts to be paid to each. This included “Daniel Bierer, son, $1,039.48,” and. the executors were ordered to distribute the respective sums to the persons named, taking their receipts therefor to be filed with the final report. Whether this sum was paid to Daniel or to his trustees is not shown by the record. Neither does the record show whether this $1,039.48 is a part of the money now in the hands of the trustees, a share of which plaintiff seeks to obtain in this action. In previous orders of the probate court making partial distribution of the estate, the orders were to pay “to Samuel Bierer, trastee, for Daniel Bierer” the sums distributed. Appellant contends that the finding and judgment of the probate court of January 1, 1916, is a final adjudication that Daniel Bierer, in his own right, rather than his trustees or his children, is entitled to his distributive share of the estate, the same as the other children of Everard Bierer, and since there was no appeal from that judgment, the other parties to this action are estopped thereby from contending that he is not the owner in fee of such share. But the probate court at that time was closing the account of the executors. It was not dealing with a trust created by the will. The district court is the proper court to administer a trust. (In re Hyde, Petitioner, 47 Kan. 277, 27 Pac. 1001.) It will not be presumed that the probate court was attempting to make an order inconsistent with the terms of the will; but the order and the terms of the will should be construed together. The receipt of Samuel Bierer, as trustee for Daniel Bierer, would have been a sufficient receipt to comply with the final order of distribution. Hence, the finding and judgment of the probate court is not controlling in this case.
The judgment of the court below will be affirmed. | [
-13,
108,
-39,
-2,
58,
112,
42,
-102,
112,
35,
-89,
115,
107,
-38,
16,
105,
50,
45,
80,
123,
-10,
-13,
23,
-112,
80,
-13,
-15,
-37,
49,
-56,
-9,
-42,
77,
32,
10,
-43,
-26,
-18,
69,
20,
12,
76,
10,
-27,
-37,
112,
52,
59,
86,
75,
117,
-113,
-13,
46,
29,
-25,
40,
44,
-39,
-71,
80,
-72,
-81,
-122,
-49,
23,
-112,
34,
-104,
-89,
72,
42,
-104,
53,
-128,
-24,
115,
-74,
6,
84,
15,
41,
41,
98,
103,
17,
77,
-27,
-40,
-104,
15,
-10,
-115,
-89,
22,
88,
-128,
104,
-76,
-97,
124,
16,
7,
-2,
-25,
21,
28,
108,
13,
-113,
-42,
-95,
-115,
124,
-120,
2,
-29,
-63,
32,
117,
-49,
50,
92,
67,
121,
-109,
-98,
-14
] |
The opinion of the court was delivered by
Hopkins, J.:
A decision in this case was rendered February 6, 1926, and is reported in 120 Kan. 183. A petition for rehearing was granted. The case has been reargued and, upon due consideration, we find no reason to change the views previously expressed. What was said in the former opinion sufficiently covers the questions presented.
The original decision is adhered to. | [
-75,
-24,
-75,
127,
10,
64,
97,
-104,
64,
-95,
-90,
115,
-23,
91,
5,
121,
30,
29,
85,
123,
-60,
-73,
86,
-55,
-46,
-13,
-5,
-35,
-79,
-36,
-26,
124,
76,
56,
74,
-11,
-26,
-54,
-39,
28,
-82,
6,
40,
-51,
-47,
114,
52,
99,
82,
10,
117,
30,
-13,
42,
25,
81,
105,
44,
-53,
33,
120,
-40,
-98,
-121,
111,
6,
49,
32,
-100,
-59,
74,
62,
-104,
49,
13,
-24,
115,
-90,
-122,
116,
69,
-87,
12,
98,
102,
3,
-7,
-50,
60,
-104,
111,
-6,
-99,
-90,
-111,
88,
-61,
-128,
-98,
-69,
85,
16,
7,
126,
-25,
5,
-97,
60,
9,
-113,
-78,
-77,
71,
60,
-110,
2,
-5,
-63,
48,
113,
-115,
114,
92,
-57,
18,
-77,
-106,
-100
] |
The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction for the violation of the prohibitory liquor law, complaining that the court erred in overruling a plea in abatement of former jeopardy.
The facts were substantially as follows: A deputy sheriff, passing defendant’s premises about ten o’clock one night in May, 1925, heard music and unusually loud talking. He procured other officers, two of whom went to the front door and two to the back door of her. house. The defendant answered the knock at the front door and admitted them. Two other women and three men were in the house with the defendant. On a table was a pitcher and a glass of water. The pitcher smelled as though it might have contained liquor. One of the officers started for another room. Defendant ran ahead of him into a bedroom, went to the bed, threw back the pillow, and grabbed a bottle. The officer grappled with her in an attempt to get the bottle. She threw it into an adjoining room, where it hit the floor and broke. The officers took a handkerchief, mopped up what they could of the liquid and squeezed, it into an empty bottle. It proved to be corn whisky. Several other empty bottles were found on the premises, some being marked cognac, apricot liquor, etc. Complaint was filed against the defendant in justice court for possessing intoxicating liquor. A jury was selected and a trial was had, resulting in a disagreement. Afterwards the state filed an information in the district court and dismissed the complaint in the justice court. The defendant before trial in the district court filed a plea in abatement, setting up the proceedings in justice court as a bar to further prosecution. A demurrer to the plea in .abatement was sustained, the trial was had, and the defendant was convicted.
The defendant contends that her plea in abatement, which was supported by affidavit, stated sufficient facts to show that she had been placed in jeopardy for the same offense as that for which she was thereafter tried and convicted upon a new information filed in a court of separate and distinct jurisdiction. We cannot agree with the contention. Justice of the peace courts have concurrent original jurisdiction with the district court in cases of misdemeanor in which the fine cannot exceed $500 and imprisonment cannot exceed one year. (R. S. 63-101.) The jury in justice court having disagreed and having been discharged, another trial was in order. The defendant was then in precisely the same position as if no trial had occurred. The state could have had another trial before the justice of the peace; or it could, at its option, dismiss the action there and file another directly in the district court. The latter procedure, which it followed, was in conformity with the principles adopted in the early decisions of this court and adhered to through the years. (State v. Curtis, 29 Kan. 384; State v. McKinney, 31 Kan. 570, 3 Pac. 356; State v. Hart, 33 Kan. 218, 6 Pac. 288; State v. Spendlove, 47 Kan. 160, 28 Pac. 994. See, also, 22 Cyc. 223, 226, and 275.) Trial in the instant case in the district court occurred some six months after the case had been dismissed in the justice court. No other action was pending against the defendant at the time of the trial and conviction in the district court.
The judgment is affirmed. | [
-15,
-18,
-35,
-99,
42,
96,
43,
-4,
66,
-111,
-9,
115,
-31,
82,
1,
107,
-69,
127,
85,
121,
-53,
-90,
23,
65,
-74,
-45,
-112,
-43,
-73,
111,
-28,
-3,
77,
-80,
-57,
-3,
102,
-54,
-45,
92,
-114,
1,
-71,
-59,
99,
58,
56,
59,
19,
15,
49,
15,
-29,
46,
93,
83,
105,
44,
-55,
61,
112,
-16,
-98,
29,
47,
22,
-77,
115,
-100,
-123,
-40,
62,
-104,
49,
1,
-8,
115,
-90,
-122,
116,
15,
-119,
-116,
98,
98,
1,
125,
-21,
-84,
-87,
38,
62,
-99,
-90,
24,
80,
75,
-128,
-68,
-99,
60,
48,
14,
112,
-1,
-43,
95,
108,
-121,
-53,
-68,
-79,
9,
56,
-110,
86,
-63,
-93,
48,
117,
-59,
-22,
92,
117,
80,
27,
-116,
-105
] |
The opinion of the court was delivered by
Mason, J.:
The Oil-Well Supply Company, a defendant in an action, obtained a judgment for the enforcement of a lien upon an oil and gas lease and its appurtenances, owned by H. N. Roberts and E. N. McGregor. The rights of the company passed by assignment to Gabriel Frank. The judgment was set aside and the issue between Frank on the one hand and Roberts and McGregor on the other was tried out, resulting in a judgment against the lien claimant, from which this appeal is taken. Objection is made to the vacation of the judgment, but the order setting it aside was justified by an inadvertence which had prevented a full hearing, and the whole matter was thereafter determined on its merits. The controversy is as to the validity of the lien.
For convenience the appellant will be spoken of as the plaintiff and the appellees as the defendants, these terms indicating their relation toward each other. The lien is claimed for material sold by the plaintiff to one A. J. Fisher, who was drilling a well upon a lease owned by the defendants under an arrangement embodied in a writ ten contract. The lien is asserted against some casing furnished by the defendants to Fisher and used in the well, which, however, turned out to be dry, the casing being withdrawn. The lien statement was filed March 22, 1923, seventy days after the last item of material was- furnished. The defendants urge that this was too late. The present statute, which became effective December 27, 1923, allows statements for liens on oil and gas leases to be filed within four months after the furnishing of the last item. (R. S. 55-209.) When the transaction referred to took place, however, the statute concerning liens on oil and gas leases (Laws 1909, ch. 159, § 3) referred to the mechanic’s lien law for the rule fixing the time of filing statements, and it allows four months where the material was furnished to the owner (R. S. 60-1402), but only sixty days where it was furnished to the contractor (R. S. 60-1403). The filing in the present case was therefore too late if the relation of the defendants and Fisher is to be treated as that between an owner and contractor. The plaintiff contends that this is not the case, that if the defendants and Fisher were not partners they were at least engaged in a joint venture on such terms that their interests were identical and material sold to Fisher was lienable on that account.
The contract between the defendants and Fisher was in writing. It contained these provisions: Fisher agreed to drill to a depth of 3,000 feet, and if paying oil or gas was found, to drill through the sand and equip the well at his own cost except that the expense of material required should be shared equally between the defendants on the one hand and Fisher on the other. If a forty-barrel well were produced, the casing used in connection with it was to belong to the parties in the same proportion; if the production were less, the casing necessary for the operation of the well was to remain in the well as joint property. Fisher was to have complete management of the well until its completion. Thereafter the management of this well and others on the same quarter section was to be joint. If the well proved dry, Fisher was to plug it and was entitled to the salvage. Fisher was to receive $4,000 from the defendants in four installments at stated depths. As soon as he had spudded in a well a number of leases were to be assigned to him (and were so assigned) , including a half interest in the lease on which the well already referred to was to be drilled and was drilled.
We think the contract was one by which Fisher was to drill a well on a lease owned by the defendants, receiving as compensation therefor various enumerated benefits. The circumstance that the payment was to be made in something besides money does not alter the substantial character of the contract or the relation of the parties. The clauses regarding the effects of a producing well being drilled never operated to change conditions because only a dry hole resulted. However, Fisher was to receive and did receive, before the plaintiff furnished him the material, an assignment of a half interest in the very lease on which the well in question was being drilled. This altered his relation to the lease, and it would seem that his interest at all events should be subject to a lien.
The right of the plaintiff to a lien on the casing in controversy is affected by another consideration. The lien statement was filed as already stated March 22, 1923. It alleged that the plaintiff claimed a lien upon the lease, and upon appurtenances, fixtures, appliances, etc., “which are now upon said land or which have been thereon at any time since the 23d day of December, 1922.” About this time Fisher had found himself unable to carry out his contract .and the defendants furnished him the casing in controversy as a loan to enable him to carry on the work. If a producing well had resulted, requiring the retention of the casing, it might be regarded as having become a permanent part of the lease, subject to the preexisting materialman’s lien, just as permanent improvements on real estate would inure to the benefit of the holder of an existing mortgage as an addition to his security. But this well never became anything but a dry hole. The use of the casing was a mere temporary expedient and never became anything more. If it had been in use when the lien statement was filed it would have been subject thereto under the liberal provisions of the statute extending such liens to equipment of various sorts. (Skinner v. Oil Co., 112 Kan. 742, 212 Pac. 684.) But having been brought upon the lease after the accrual of a lien which only purported to cover property already there, we think the trial court committed no error in holding it free from the plaintiff’s claim. Circumstances not here detailed were brought out justifying a conclusion that the decision was in accordance with substantial justice.
The judgment is affirmed. | [
-16,
126,
-4,
-100,
42,
96,
106,
-103,
81,
-95,
-27,
19,
-83,
-33,
12,
109,
107,
105,
117,
106,
-41,
-77,
23,
112,
-61,
-77,
113,
-35,
57,
79,
-10,
-33,
76,
32,
-54,
-43,
-26,
-54,
-59,
84,
-50,
37,
-103,
-28,
89,
0,
52,
122,
48,
79,
97,
-84,
-29,
44,
24,
-49,
40,
44,
-21,
125,
-48,
-80,
-102,
-115,
111,
16,
49,
70,
-100,
71,
104,
14,
-104,
48,
8,
-24,
114,
-74,
86,
-12,
43,
-71,
40,
102,
99,
1,
21,
-17,
-56,
-72,
31,
-34,
-115,
-90,
-80,
48,
-85,
96,
-74,
-99,
-8,
8,
-89,
118,
-18,
5,
95,
60,
7,
-117,
-42,
-95,
15,
117,
-104,
5,
-22,
-125,
52,
100,
-51,
-70,
92,
71,
115,
-97,
-121,
-14
] |
The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of manslaughter in the first degree for having caused the death of a young woman, Lorean Franklin, by divers means which he feloniously used upon her to destroy an unborn quick child with which she was pregnant.
Defendant assigns various trial errors, the most serious of which relates to the fact that while he was charged with an offense which by statute is defined as manslaughter in the second degree and which carries a punishment of penal servitude for a term of three to five years, he was convicted of the offense of manslaughter in the first degree for which the penalty is five to twenty-one years in the penitentiary.
The information, which was in one count, alleged that—
“D2\ C. C. Keester, ... at and within the eou2ity of Sedgwick, in the state of Ka2isas ... on the 31st day of July, a.d. 1924, did then and thei’e unlawfully, feloniously, willfully, intentionally and knowingly make an assault in and upon Lorean Franklin, a pregnant woman with a quick child, with certain medicine, drugs, substance and instruments, and did use and employ certain dmgs, instruments and other means with the intent thereby to destroy such quick child; that the destruction of such child was not necessary to preserve the life of the said Lorean Franklin, and that the same had not been advised by a physician as being necessary for that purpose; that the informant is unable to give a more particular description of said medicine, drugs, substance, instruments and other means used by the said Dr. C. C. Keester, as aforesaid; that the same were use.d with the intent thereby to. destroy the aforesaid unborn quick child; that the destruction of the said quick child ensued from the said means employed and by reason of the acts of the said Dr. C. C. Keester, heretofore alleged; that from the effects of said assault made by the said Dr. C. C. Keester, as aforesaid, the said Lorean Franklin did languish, and languishingly did live until on or about August 3, 1924, when the said Lorean Franklin at and within the county of Sedgwick and state of Kansas aforesaid, did then and there die from the effects of said assault inflicted as aforesaid; and that the said Dr. C. C. Keester, in the manner and form and by the means aforesaid, at and within the county of Sedgwick and state of Kansas, aforesaid, did then and there unlawfully, feloniously, willfully and intentionally kill and murder her, the said Lorean Franklin, contrary to the for-m of the statute,” etc.
The pertinent section of the crimes act which denounces this offense reads:
“Eveiy person who shall administer to any woman pregnant with a quick child any medicine, drug, or substance whatsoever, or shall use or employ any instrument or other means) with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessaiy for that purpose, if the death of such child or mother thereof ensue from the means employed, shall be guilty of manslaughter in the second degree.” (R. S. 21-410.)
The statute which defines the penalty for manslaughter in the second degree reads as follows:
“Persons convicted of manslaughter in the first and second degrees shall be punished as follows: First, if in the.first degree, by confinement and hard labor for a term not less than five years nor more than twenty-one years; second, if in the second degree, by confinement and hard labor for a term not less than three nor more than five years.” (R. S. 21-421.)
It will be noted that, measured by the severity of the punishment imposed, the offense of manslaughter in the first degree is one of much greater gravity than that of manslaughter in the second degree. And it will also be observed that the information in this case was drawn in conformity with the terms of R. S. 21-410 quoted above, and the facts pleaded constituted a charge of manslaughter in the second degree. On what theory, then, can the conviction and sentence imposed on Doctor Keester for the graver offense than that charged against him be upheld?
Counsel for the state argue in this wise: The crimes act provides:
“Every physician or other person who shall willfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall upon conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.” (R. S. 21-437.)
And the statute defining manslaughter in the first degree reads thus:
“The killing of a human being without a design to effect death, by the act,.procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.” (R. S. 21-407.)
It is the state’s theory that Doctor Keester’s original offense, that of committing an abortion on Lorean Franklin, was a misdemeanor, and that the unintentional death of the woman which was brought about through the perpetration of that misdemeanor operated to render him guilty of manslaughter in the first degree. But here the defendant was expressly charged with an offense which the statute denounces as manslaughter in the second degree. Moreover, it is 'unthinkable in this enlightened age that one expressly accused of a specific offense which on conviction would subject him to a punishment of three to five years in the penitentiary can be convicted of a much graver offense and sentenced to the penitentiary for an indeterminate term of five to twenty-one years.
In 16 C. J. 1103 it is said:
“The verdict must be responsive to and cover the offense charged in the indictment or information. Defendant cannot be charged with one crime and convicted of another merely because the latter is developed out of the proof, which fails to establish the crime charged in the indictment.”
In the same treatise, page 1303, it is said:
“The judgment and sentence must be responsive to and based upon the offense with which defendant is charged. Thus on a verdict or a plea of guilty of a particular crime the court must impose the punishment provided for that crime, and a sentence for an offense with which defendant was not charged is void.”
Under our statute regulating procedure in criminal cases, a person accused of a more serious offense may be convicted of a less serious offense where the essential elements of the lesser crime are included in those constituting the graver crime (R. S. 62-1022), but neither statute, precedent nor principle known to our jurisprudence can be cited to support the converse of that rule. We do not overlook the concluding language of the charge against the defendant which alleges that “in the manner and form and by the means aforesaid” the defendant did “feloniously . . . kill and murder her the said Lorean Franklin.” The “manner and form” and “means aforesaid” had already been stated in the information, and its closing verbiage was merely the legal conclusion of the pleader, and contributed nothing towards altering or raising the degree of the crime charged from that of manslaughter in the second degree to manslaughter in the first degree. (1 Wharton on Criminal Procedure, 10th ed., § 196.) There is, of course, ample authority for the doctrine that where the allegations of the information are sufficiently comprehensive to warrant a conviction of one of several offenses of varying degrees of gravity, the defendant may be convicted of any offense warranted by the evidence so long as it.is fairly included within the terms of the charge. Nor was there anything in the. evidence or circumstances, so far as disclosed by the record, to. hinder the prosecuting attorney from charging defendant in separate counts with the offenses of manslaughter in the first and second degrees. But here the single charge in the information was that a felonious assault was made upon Lorean Franklin, “a woman pregnant with a quick child,” with the intent “thereby to destroy such quick child.” That intent “to destroy the aforesaid unborn quick child” is reiterated in the information, and it is further charged “that the destruction of the quick child,” as well as the death of the mother, “ensued from the means aforesaid and by reason of the acts of the said Dr. C. C. Keester.” The state, of course, is bound by its pleadings, and the recitals in the information just quoted bar consideration of any theory that there was no quick child, or that the mother was not pregnant with a quick child, or that Doctor Keester had no intent to destroy a quick child, or that his offense was that of unintentionally bringing about the death of the woman through the unlawful perpetration of that sort of abortion which another section of the crimes act defines as a misdemeanor. (2 Wharton’s Criminal Procedure, 10th ed., § 1398.)
It thus becomes too clear for cavil that this case cannot be brought within the reasoning of the cases where abortions of women pregnant with “vitalized embryos” not developed to the state of quickening have been unlawfully committed and followed by fatal consequences to human life. The verdict and judgment in this case will have to be set aside.
It is needless to consider the other errors assigned. We do note the curious anomaly in our crimes act in this respect: One who willfully commits any act intended to cause an unlawful abortion of a woman, in the early stages of her pregnancy, before the quickening of the foetus, is guilty of manslaughter in the first degree if the woman dies as a result of such unlawful act (State v. Harris, 90 Kan. 807, 136 Pac. 264; State v. Patterson, 105 Kan. 9, 181 Pac. 609; and see, also, State v. Watson, 30 Kan. 281, 1 Pac. 770), while a similar unlawful act perpetrated on a woman in the later stages of her pregnancy, after the quickening, “when she is pregnant with a quick child,” says the statute, is guilty of manslaughter in the second degree if the woman dies as a result of such unlawful act. However, as was remarked in State v. Harris, supra, this anomaly is one which concerns the legislature, not the judiciary; and we must expound and apply the statutes as we fin'd them.
The judgment of the district court is reversed and the cause remanded for a new trial. | [
-80,
106,
-40,
46,
26,
96,
42,
88,
83,
-31,
-96,
115,
-115,
-35,
5,
57,
59,
109,
-48,
121,
-15,
-73,
23,
113,
-74,
-13,
-80,
-41,
51,
93,
-4,
-4,
77,
34,
-118,
-43,
-30,
10,
65,
82,
-118,
16,
-87,
-31,
90,
2,
-92,
56,
-10,
14,
113,
30,
-93,
42,
30,
-49,
41,
40,
74,
44,
-128,
-80,
-119,
-123,
43,
18,
-94,
-122,
-100,
37,
88,
55,
-38,
49,
0,
-4,
115,
-122,
-122,
116,
109,
-119,
28,
98,
-30,
33,
29,
109,
-88,
-120,
47,
47,
-115,
-89,
24,
80,
65,
-116,
-98,
-35,
39,
116,
-118,
120,
-19,
71,
89,
124,
65,
-101,
-76,
-111,
-51,
58,
-112,
-70,
-21,
35,
33,
117,
-49,
98,
92,
69,
122,
-101,
-33,
-44
] |
The opinion of the court was delivered by
Mason, J.:
C. W. Goodin acted for some eleven years as agent for Anna B. Walsh, a widow, making investments for her, collecting interest and rents, paying taxes and making repairs. He died July 28, 1922. In March, 1923, she filed a claim against his estate for $1,952.92, based upon a note for $1,200 given by him to her, and a balance of $752.92 shown by the books kept by him to be due her. This claim was allowed and is involved here only for the possible bearing its presentation may have upon a claim against the estate for $16,768.85, which she filed June 25, 1923, based upon the contention that in two instances he had made investments professedly in her behalf under such circumstances that she should not be charged with them. This claim was disallowed and she appealed to the district court. She died February 8, 1924, and her administrator was substituted as plaintiff. Upon a trial without a jury the court rendered judgment for the plaintiff upon one of the items and for the defendants on the other. The defendants appeal and the plaintiff by way of cross appeal asks that the judgment be modified so as to. grant a recovery upon both branches of the claim.
Full findings of fact were made, which the defendants urge require judgment in their favor upon the item concerning which the court ruled against them, referred to as the Schone claim, as well as upon the other, called the Wimmer claim. The facts as found in regard to the Schone claim may be thus summarized: For many years Goodin acted as general agent for Mrs. Walsh in the matter of investments, buying with her money, left in his hands for the purpose, notes, mortgages and other securities in his own discretion, making entries showing the transactions in two books, retaining one and giving the other to her. Before April 25, 1922, one C. D. Darnell owned a tract of land in Heathwood addition to Kansas City, Kan., subject to a first mortgage of $1,000 to a bank, and to an 'option contract given by him to Hugh L. Schone, contemplating its purchase for $7,000. Prior to the date named Darnell conveyed by deed and assignment his interest in this land and in the option contract to Goodin. The deed was acknowledged June 29, 1921, and the assignment was dated July 5, 1921. On April 25, 1922, Goodin entered upon the duplicate books referred to a charge of $6,618.85 against Mrs. Walsh, for “Hugh L. Schone contract bought and accrued int.,” the papers in relation to the matter being at that time labeled as her property and placed with others belonging to her. What Darnell received from Goodin in exchange for the Schone contract was property belonging to Goodin personally, in which Mrs. Walsh had no interest, her name not being mentioned in the transaction and she having no knowledge of the matter until after Goodin’s death.
Under these findings the court was justified in giving the plaintiff judgment for the amount charged against Mrs. Walsh on account of the Schone deal. Irrespective of the value of the contract or the land, and conceding freely that Goodin was not liable for losses to his principal through any mistake of judgment, he could not in this manner unload his own property upon his principal, and the trial court was right in eliminating this charge against Mrs. Walsh and saying that “under the facts in this case O. W. Goodin could not place among the securities belonging to Anna B. Walsh the Schone contract and take credit for the value thereof in the manner that he did.”
The defendants urge that the filing and allowance of the claim of Mrs. Walsh against the Goodin estate for $752.92, the amount shown by Goodin’s books to be due her, is fatal to her recovery here on the grounds of ratification, res judicata, and the rule against the splitting of a single cause of action. At the time the claim against the estate for $752.92 was filed Mrs. Walsh knew of the features of the Schone deal on which the objections to the charge against her in that connection are made. But it by no means follows that by asserting her claim for that amount she intended to ratify, the charge. There was a controversy over that matter and also over the Wimmer transaction. These controversies did not in the least affect the validity of the demand for $752.92, except possibly in a way to be hereinafter referred to. That demand was due or was naturally supposed to be due in any event. It was not contested. Its presentation was largely a matter of form, and whatever effect it might have upon the Schone claim by reason of any other principle, it did not show — that is, it did not conclusively show — a purpose on her part to ratify the unloading upon her of Goodin’s own investment in the Schone land.
The Schone deal was not actually litigated in the proceeding begun by the filing of the claim for $752.92; and as the second claim had been filed before the allowance of the first one, no one could have been misled into supposing it was involved in that allowance. Of course a judgment in an action to recover the balance of an unsettled account will ordinarily be. a bar to an attempt to litigate later a separate item, as shown in Manley v. Tufts, 59 Kan. 660, 54 Pac. 683, relied upon here by the defendants. But that case recognizes that the rigidity of the rule against the splitting of actions may be affected by special circumstances, as shown by this language:
“As has been held, a party cannot split up his causes of action or defense and present them by piecemeal in successive suits; nor can he, after judgment, relitigate matters which were or should have been litigated in the former action. . . . There is a greater reason for applying the doctrine of res adjudicata in this case than in the ordinary action for recovery upon account. Here a detailed account of the mutual dealings between the parties was set forth in the plaintiff’s petition; the defendant, in its confession of judgment, set forth the account in detail, giving the items, both of debit and credit, of the mutual dealings between the parties, and then upon oath admitted that there was a balance due the plaintiff from it of $8,585.53. It was a settlement of the mutual claims between the parties, and was like unto an account stated between them. The balance having been struck, and the amount due agreed upon, they have foreclosed an inquiry into all the antecedent items of the account, unless it is alleged or shown that they were omitted through mistake or fraud.” (pp. 663, 664.)
In the present case the only controversy between the parties had to do with the two specific matters, having no relation to any other entries in Goodin’s book. The practice followed was readily suggested by and reasonably adapted to the existing situation, and had no tendency to defeat substantial justice. We do not regard it as a sufficient ground of reversal.
In a reply brief the defendants urge that the books kept by Goodin showed that the balance of $752.92 was due to a credit given Mrs. Walsh in connection with the Wimmer and Schone deals. If this be so we do not think the books revealed this fact with sufficient clearness to charge her with such actual or constructive knowledge thereof as to require a change in the conclusions we have already announced.
The evidence was introduced and arguments of counsel made at the September, 1924, term of court, the case then being taken under advisement. Judgment was rendered at the January term, findings of fact and conclusions of law being then made. Each party filed a motion for a new trial. At the April term the plaintiff, by leave of court, filed a motion asking for changes in the findings and conclusions. At that term the latter motion was overruled except that some addition was made to one finding, and the motions for new trials were also overruled. The defendants contend that .the findings, being a part of the judgment, or the basis of it, could not be changed after the expiration of the term at which they were made. It is held that a court has no authority at a later term to change its findings (except in accordance with a statute) without granting a new trial. (Holm v. Davis, 41 Utah, 200, cited in 26 R. C. L. 1094.) Assuming this to be true, we do not think the modification of the finding in the present case would justify a reversal. The new matter added was in no way inconsistent with the original finding; it merely went more into detail. The substance of the additional statements could doubtless have been implied from the general decision and the other findings. At all events if the new matter inserted were entirely disregarded as a finding the judgment could still be upheld.
The plaintiff’s contention that judgment should also have been rendei’ed in their favor with respect to the Wimmer matter we consider not well founded. Goodin fexchanged some securities in his hands belonging to Mrs. Walsh for an interest in land of doubtful value. The plaintiff characterizes the venture as a speculation l’ather than an investment. The situation hei'e, however, is very different from that presented by the Schone deal. The trial court found that Goodin’s purpose was to exchange Mrs. Walsh’s securities for others of greater value, and that what he obtained for them was of at least as much value as what he gave up. Under such circumstances, there being no intentional wrong and no actual loss, we think the court rightly held there was no liability.
The plaintiff also complains of the refusal of the trial court to make further changes in the original findings. There could be no ground of reversal in this. If there was room for a difference of opinion as to what the evidence showed concerning the matters involved, the trial court was the final judge of what should be found; if there was no room for such difference, its findings could serve no purpose in this appeal. A claim that any of the findings were without support in the evidence was one properly to be presentéd by the motion for a new trial.
The judgment is affirmed. | [
-16,
108,
-3,
-20,
10,
32,
10,
-38,
64,
-127,
-91,
83,
73,
-38,
64,
111,
-14,
9,
81,
104,
-13,
-77,
23,
-5,
-46,
-13,
-55,
-35,
-71,
92,
116,
-41,
77,
32,
-54,
-43,
102,
-126,
5,
28,
14,
4,
8,
-55,
-39,
64,
52,
125,
18,
77,
81,
-17,
-29,
40,
29,
-61,
9,
44,
-21,
32,
-64,
-80,
-85,
-121,
-33,
23,
19,
4,
-104,
-93,
-56,
10,
-112,
61,
8,
-23,
115,
54,
-42,
116,
71,
-119,
8,
102,
102,
49,
-123,
-17,
-32,
-104,
47,
117,
-115,
-89,
-78,
88,
-125,
41,
-99,
-101,
108,
80,
7,
-12,
-18,
85,
93,
-24,
-115,
-117,
-42,
-79,
-115,
122,
-103,
11,
-17,
-123,
55,
113,
-49,
-30,
77,
71,
125,
-101,
-113,
-67
] |
The opinion of the court was delivered by
Johnston, C. J.:
A question of subrogation is involved in this controversy. M. R. Amerman was engaged in constructing and repairing certain streets of the city of Eureka, and was operating under the workmen’s compensation law. Ole Branson was employed by him and was at work on the streets on September 9, 1922, and while at work he was struck by an automobile alleged to have been negligently operated by Claude Ladd, and was so severely injured that he was wholly incapacitated to perform any labor and died about four months later as the result of his injuries. At the time of the injury Branson had a wife living who was wholly dependent upon him for support, and Amerman, the employer, became liable to Branson for compensation until his death and thereafter to his widow under the provisions of the workmen’s compensation act.
The questions in the case arise upon the sustaining of a demurrer to plaintiff’s petition. The Maryland Casualty Company brought the action against Ladd, pleading that Amerman had procured from the company a policy under which the plaintiff agreed to indemnify Amerman on account of any injuries that might be suffered by his employees- in the course of their employment for a period which included the time of Branson’s injury. It is further alleged that Amerman required the company to save him harmless from liability for the injury and that in compliance with the demand it had paid to the widow of Branson $1,392, and is obliged to pay an additional sum under its liability which, with that paid, will amount to $3,750. The plaintiff alleged that the defendant Ladd negligently caused the injury by driving his automobile at an excessive rate of speed without keeping a lookout for persons on the street in which Branson was at work and in a manner which imperiled the lives of people, and that because of his negligence Branson was injured, and thereby a liability for damages was created against Ladd and in favor of Branson and his widow. It was further averred that under the indemnity contract the plaintiff became liable and was required to pay $3,750, and that under the law the plaintiff is entitled to subrogation to the rights of Branson for damages against Ladd, and asked a judgment against the defendant for that sum. Plaintiff’s action was brought more than two years and less than three years after the injury was inflicted upon Branson. The demurrer to the petition was sustained by the court upon the ground that the right acquired by the plaintiff against Ladd is one in the nature of tort for the recovery of damages, and hence was barred by the two-year statute of limitations. (R. S. 60-306, subdiv. 3.) Plaintiff contends that the action is one upon a liability created by statute which may be brought within three years.after the cause of action has accrued. (R. S. 60-306, subdiv. 2.) The statute under which the plaintiff asserts a right of recovery provides:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages in respect thereof: (a) The workman may take proceedings against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and (b) if the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the workman to recover damages therefor.” (R. S. 44-504.)
Under this statute a workman having a cause of action for compensation against his employer and also a cause of action against a third person for damages for the injury sustained may maintain an action against both, but is not entitled to recover both damages and compensation. (Swader v. Flour Mills Co., 103 Kan. 378, 176 Pac. 143.) Under the second subdivision of the section, if compensation has been recovered by the workman under the section relating to subcontracting, an indemnitor who has been called on to pay the compensation is entitled to recover damages from any third person who caused the injury and is legally liable in damages to the injured person, and in such a case the indemnitor “shall be subrogated to the rights of the workman to recover damages therefor.” As to the indemnity paid, the statute authorizes“the substitution of the indemnitor for the injured employee. In the action brought under this statute the plaintiff was put in the place of Branson with all the rights and remedies which Branson had against Ladd. Ladd, as we have seen, was a stranger in the case, having no relation to the compensation act, the contract of employment or the contract of indemnity. There was no privity of contract between him and the injured party nor yet between him and the indemnitor or employer. According to the petition, Ladd had committed a tort against Bran-son and was primarily responsible for the injury, and was therefore liable in damages to Branson for his tortious act. Branson could look to his employer for compensation for the injury or to Ladd for his wrongful act which caused the injury. The plaintiff is seeking to enforce the right of action which Branson had. It was given, and had, no greater or different right against Ladd than Branson had. By the substitution permitted under the statute plaintiff became entitled to the rights and remedies possessed by the injured party. Branson’s only right of action was one for damages for a wrongful personal injury. The substitution placed the plaintiff in the shoes of Branson who was entitled to recover from Ladd not compensation but damages, and in such an action the defendant could make any defense that would have been open to him if the action for damages had been brought by Branson, including the one that the right of action against him was barred by the statute of limitations. The substitution did not change the nature of the action nor the liability of Ladd. This liability and the fact that plaintiff acquired only the rights and remedies possessed by Bran-son against Ladd makes it clear that the two-year period of limitations applicable to a recovery for a wrongful personal injury is the governing limitation in this action, and hence the ruling of the district court must be affirmed. | [
112,
104,
-72,
30,
90,
98,
10,
90,
81,
-117,
-91,
-45,
-119,
-53,
13,
101,
-22,
63,
-48,
107,
-74,
-93,
23,
58,
-46,
-77,
-15,
-59,
-72,
72,
100,
125,
77,
48,
10,
-11,
-26,
-53,
93,
22,
70,
4,
-88,
-19,
-39,
80,
48,
110,
80,
79,
1,
-98,
-45,
47,
28,
-57,
45,
46,
123,
51,
-48,
-16,
-118,
5,
109,
16,
-111,
4,
-104,
37,
88,
12,
-104,
-79,
9,
-8,
114,
-90,
-58,
-12,
99,
-103,
8,
98,
103,
2,
53,
103,
-24,
-104,
15,
-6,
-115,
-91,
-108,
88,
35,
105,
-74,
29,
25,
28,
6,
126,
-6,
93,
92,
44,
3,
-117,
-74,
-79,
-113,
120,
-98,
3,
-53,
-127,
54,
117,
-50,
-78,
93,
7,
114,
-109,
23,
-112
] |
The opinion of the court was delivered by
Johnston, C. J.;
This is a habeas corpus proceeding in which Arthur J. Baxter, who was charged in seventeen counts with violations of the bank act, asks to be discharged from further prosecution upon the ground that more than three terms of court have passed since the filing of the information without bringing him to trial.
It appears that' the information was filed on July 14, 1923, and that the next term of court began on November 13, 1923, and ended March 10; 1924. During that term and on December 6, 1923, the petitioner applied for a continuance stating that he had not had sufficient time to fully examine the letters, books and papers of the bank in order to prepare his defense, and the application was granted and the case continued to the next term of court, which began March 11,1924. On the trial docket there is an entry as of the first day of the next term that by consent the case was passed for the present. At the March, 1925, term, is an entry “by consent passed to next term, on the same bond as heretofore, being a continuing bond.” At the June term, 1925, the petitioner applied for a continuance. The case had been assigned for trial at that term and the state was insisting upon a trial, but the court, for -reasons given, set aside the assignment, but ordered that all preliminary pleas and motions should be presented at the close of the jury trials of that term. Later in the term, on a motion to quash the information, the court gave the state permission to amend it in some particulars and then the court sustained the plaintiff’s application for a continuance to the next term. In some of the entries passing the case from term to term, it is not stated that the continuances were granted upon the application or with the consent of the petitioner, but the court in deciding the application of the petitioner for a continuance at the June, 1925, term, referred to the continuance of the case previously had and stated that all of them “were consented to by the defendant in open court. It appears from the evidence that a prosecution had been begun in the federal court against the petitioner and others on charges of the violation of the federal laws in matters pertaining to the bank transactions, and that letters and documents and records material to the defense of the petitioner had been turned over to the federal officers for presentation to the federal court. It appears that when the case was called in the state court in November, 1923, an arrangement or agreement was made between the state and the petitioner that in view of the prosecution in the federal court and as the records and documents pertaining to the transactions in the bank had been surrendered to the United States attorney, the state case should be passed along from term to term to await the trial of the case in the federal court. The petitioner insists that there was no such an agreement, but we find in his application to procure a continuance of the case in June, 1925, his statement that—
“An understanding and agreement between the parties to the action, the trial or other proceeding therein has been postponed from term to term since November, 1923, to await the action' of a case pending in the U. S. district court for the district of Kansas, wherein he and others were defendants,”
and that relying on that agreement he had not made preparation for the trial. In support of the application for a continuance, counsel for petitioner stated that such a plan had been agreed upon and had been followed up to that time, and by reason of the understanding he had not made necessary preparation; and further, that the letters, documents and records relating to the transactions involved were in the hands of the United -States attorney, and were not then available to him to make a defense, and that he had not been given notice that the state had abandoned the plan mentioned and would insist on a trial at that time. In its decision, granting a continuance in the June, 1925, term the judge recites:
“It has been the understanding of this court that it was not desired to try this case until after the federal case had been disposed of for the reason that the entire transaction could be more thoroughly tried in the federal court and more complete justice meted out to all who should be guilty than could be hoped for in this court. This court has consented to such plan because it was deemed the wise thing to do. Nothing has occurred to alter this plan or the wisdom of such plan other than applications for continuance by defendants in the federal court. The delay occasioned by these things has evidently irritated the persons prosecuting this case. It may be that there was sufficient provocation to cause this irritation. No notice has been served upon the defendant or his attorney of the change in the inclination of the prosecution in this case which had heretofore existed, to defer this action until after the trial of the federal court case. In all fairness, the court believes this should have been done. There have been no particular reasons for the continuances in this ease, although all of them were consented to by the defendant in open court, other than the desire to try all defendants in the federal court before this case should be called for trial.”
Shortly after obtaining the continuance in 1925 the petitioner filed a motion in the district 'court asking for a discharge because more than three terms had intervened between the filing of the information and the application for a discharge, but that motion was overruled. He then brought this proceeding. In that county there were three regular terms of court each year, and that more than three terms had elapsed without a trial since the filing of the information is beyond question, but in view of the circumstances related is he entitled to a discharge? The constitution requires that those accused of crime shall have a speedy public trial, and for the enforcement of this provision the legislature has provided in effect that if the accused is not brought to trial before the end of the third term after the information is filed, he shall be entitled to a discharge unless the delay was had on his application or occasioned by lack of time to try the case at the third term. (R. S. 62-1432.) From the facts stated, including the admissions of the petitioner and the statements of the trial court in its rulings, it is clear that he is not entitled to a discharge because of the delay in a trial. The delay was caused by the acts of the petitioner. The provisions for a speedy trial are made for the benefit of the accused and to protect him against the procrastination or oppression of prosecutors; but important as the right is, it is one which the accused may waive. He is not entitled to¡ a discharge for a delay occasioned by his own act, application or agreement. When he joined in stipulating for delay and brought this agreement to the attention of the court he effectually waived the. right to a discharge on the ground that the case had not been tried within the time covered by the agreement. While he did not make formal application for some of the continuances his agreement on which continuances were granted is the equivalent of an application by each of the parties to the agreement. By his act and stipulation he as effectually prevented a trial as if he had purposely absented himself from the trial after being admitted to bail. In Healy v. The People, 177 Ill. 306, a discharge was asked by a prisoner on account of the delay in bringing on a trial. The statute under which the application was made provided, as ours does, that the defendant is not entitled to a discharge if “the delay shall happen on the application of the prisoner.” The case had been continued by the consent of all the parties without a formal motion by the defendant for a continuance. It was held:
“Delay occasioned by the continuance of a criminal case by the consent of all parties, when called for trial within four months of the day of commitment, must be deemed as happening on the application of the prisoner within the meaning of the statute.” (See, also, People, ex rel., v. Matson, 129 Ill. 591.)
Here, as we have seen, the petitioner joined in an agreement to postpone the trial, and by that means the case was continued from term to term for about two years. At the 1925 term he insisted that the agreement should be observed by the prosecution and enforced by the court. It was observed and enforced, and the final continuance in 1925 was based on the existence and continued obligations of that agreement. The discharge asked is denied and the petitioner remanded. | [
112,
112,
-67,
-98,
10,
96,
42,
-70,
80,
-127,
-90,
83,
-23,
-62,
4,
73,
-45,
125,
117,
105,
-52,
-77,
54,
67,
-45,
-13,
91,
-43,
49,
127,
-12,
-106,
12,
-68,
-54,
17,
102,
-56,
-61,
30,
-50,
-127,
-71,
-19,
-39,
72,
56,
63,
122,
15,
81,
126,
-29,
42,
17,
82,
105,
41,
75,
-99,
-48,
-15,
-117,
13,
-19,
23,
-77,
-89,
-102,
-123,
104,
60,
-40,
49,
6,
-7,
114,
-106,
-122,
-76,
111,
-69,
40,
118,
98,
0,
77,
-21,
-100,
-120,
62,
-70,
-67,
-122,
-110,
80,
-117,
96,
-66,
29,
114,
16,
6,
-2,
127,
-59,
52,
108,
5,
-53,
-106,
-77,
-113,
125,
-102,
27,
-13,
-95,
-80,
113,
-116,
-29,
76,
-10,
121,
-79,
-122,
-103
] |
The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment convicting him of the larceny of an engineer’s transit of the value of more than $20.
The complaint on which the defendant was arrested was filed November 12, 1925. The information charged that the larceny had been committed on June 1, 1921. To avoid the statute of limitations, the information charged—
“That ever since the commission of the offense herein charged, the said defendant Frank Heinz concealed the fact of the crime, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
It is contended by the defendant that there was no evidence which tended to prove that he concealed the crime. There was evidence which tended to show that the larceny had been committed on February 23, 1921; that on the following day the transit was missed from the place in which it had been deposited and was not thereafter seen by anyone, except possibly the defendant, until about November 3, 1925, when it was found in his possession. He then claimed to have had it for forty years. On the stand he testified that he had bought the transit at a second-hand store in Kansas City from fifteen to seventeen years before it was stolen.
So far as material, section 62-504 of the Revised Statutes reads;
“If any person who has committed an offense . . . conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.”
Did the evidence tend to show that the defendant concealed the fact that a crime had been committed? That fact was known the morning after the transit was taken. The circumstances revealed that it had been stolen. There was no concealment of that fact. The circumstances did not show who committed the crime. The defendant did not at any time state that he had committed it, and from the time the transit was taken until it was found he kept it secreted. But his secretion of the transit did not conceal the fact that it had been stolen.
In 16 C. J. 230 the writer says:
“Where the statute precludes accused from availing himself of the limitation in cases where he ‘conceals the fact of the crime’ it must appear, in order to prevent the limitation operating in his favor, that he concealed the fact of the crime, and not merely his connection with it, and that the concealment was the result of his positive affirmative acts, designed and calculated to prevent the discovery of the commission of the offense with which he is charged; mere silence and inaction are not enough.”
Section 62-503 provides that a prosecution for grand larceny must be commenced within two years after its commission. This prosecution was not commenced for more than four years after the crime was committed. The evidence was not sufficient to prevent the statute of limitations from running.
The judgment is reversed, and the defendant is discharged. | [
112,
106,
124,
-67,
58,
-32,
42,
-72,
97,
-81,
-28,
83,
-19,
64,
5,
57,
95,
61,
-12,
123,
-26,
-105,
7,
-109,
-14,
-9,
-40,
-44,
60,
89,
102,
-58,
76,
48,
-62,
21,
70,
72,
65,
88,
-118,
4,
-88,
66,
89,
96,
36,
107,
4,
14,
113,
14,
38,
42,
28,
78,
9,
40,
-53,
-71,
-64,
-16,
-77,
-91,
127,
18,
-93,
6,
-76,
5,
120,
31,
-100,
115,
32,
104,
115,
-90,
-126,
-4,
105,
-119,
-128,
98,
99,
48,
69,
-89,
-4,
-120,
46,
-13,
-97,
-89,
52,
64,
3,
-27,
-66,
-99,
101,
16,
38,
-2,
-28,
4,
83,
108,
11,
-113,
-80,
-110,
9,
116,
-122,
90,
-5,
-91,
49,
112,
-52,
-26,
93,
51,
122,
-101,
-98,
-107
] |
The opinion of the court was delivered by
Mason, J.:
William T. Gann executed to his brother, George I. Gann, a note for $40,000 secured by a mortgage upon real estate. George Gann brought an action against his brother to foreclose the mortgage, and obtained a default judgment on which an order of sale was issued. The Garden City National Bank, a judgment creditor of William T. Gann, brought this action to set aside the judgment and the mortgage on the ground of fraud, and to subject the land to the payment of its claim. The district court set aside the judgment and reduced the mortgage to $30,000, but denied other relief. The bank appeals.
Through the fault of a former court stenographer the plaintiff has been unable to procure a transcript, and the evidence is not before us. The plaintiff contends that a judgment setting aside the entire mortgage should be ordered upon the undisputed facts shown by the journal entry, the pleadings, and certain exhibits. The court found that three items entered into the mortgage, two of which were valid; that a third item, consisting of $20,000 agreed to be paid by William T. Gann to make up for the greater value of land received by him in the course of an agreed partition between them, was excessive by $10,000. With respect to this matter the journal entry reads:
“The court further finds that said mortgage for forty thousand ($40,000) dollars is fraudulent and void as to the excess over thirty thousand ($30,000) dollars, and should be set aside to that extent, but should remain in full force and effect as to thirty thousand ($30,000) dollars.”
If the language quoted is to be interpreted as meaning that the mortgage was actually fraudulent — that the parties to it intended thereby to defraud the creditors of the mortgagor, even if only to the extent of $10,000, then the whole instrument should have been set aside. (27 C. J. 464, 465, 545, 546, 673.)
On the other hand, if the Journal entry is construed as meaning the court found the mortgage to be constructively but not actually fraudulent to thevextent of the $10,000, the vice of the mortgage in this respect could be cured by reducing it to this extent. The situation would then be substantially the same as where an insolvent debtor without intentional wrong prefers a creditor by conveying to him property worth more than the amount of the debt. In such a case equity will subject the property to the claims of the creditor to the extent of -the excess. (12 R. C. L. 478, 479; 27 C. J. 544, 545; see, also, 27 C. J. 464, 465, 674, 675.)
The use of the word “fraudulent” without qualification) and particularly in connection with the term “void,” suggests actual and intentional wrong. That is its “common, direct sense.” (Laithe v. McDonald, 7 Kan. 254, 264.) If less than the full and ordinary meaning were in contemplation it might naturally be expected that some explanation would have been made. On the other hand, “void”' is used almost interchangeably with “voidable,” and “fraudulent”' without a prefix is sometimes applied to conduct which, although not actuated by wrongful intent, will not be upheld by the courts. Merely for illustration, conveyances without consideration, made by insolvent debtors where there is no actual purpose to defraud or delay, are spoken of simply as “fraudulent” without prefixing “constructively.” (27 C. J. 500.) Moreover a construction that sustains the judgment is to be favored over one having the contrary effect.
The determination of the case therefore turns upon just what is meant by the language of the judgment. There is room for doubt and difference of opinion on that matter. There is no occasion, however, to accept a doubtful conclusion where the means are readily at hand to reach certainty. The difficulty arises from indefiniteness of expression which can easily be made specific. The cause will be remanded in order that the district court may enter a supplemental order making clear the meaning intended — whether the word “fraudulent” in the judgment already rendered is intended to signify the existence of actual fraud or merely constructive fraud. In the former case the judgment will be modified so as to set aside the entire mortgage; in the latter it will be affirmed. This practice is similar to that adopted in Butler v. Milner, 101 Kan. 264, 166 Pac. 478.
The plaintiff contends the admitted facts show conclusively that the mortgage was intentionally fraudulent, and therefore should be wholly set aside. The circumstances before us do tend strongly to support the theory of actual fraud, but we are unable to say the evidence before the trial court may not have so explained the conduct of the parties as to warrant a different conclusion.
Of the other $20,000 of the recited consideration of the mortgage, $5,000 was for notes given by William T. Gann to his brother, the validity of which in themselves is not attacked. The remaining $15,000 is accounted for by a finding of the trial court in this way: The Gann brothers mortgaged a part of the land owned by them in common to an insurance company for $30,000, receiving a loan for that amount, of which William T. Gann received the entire benefit, agreeing with his brother that he would pay off and release the mortgage; in the partition 3,440 acres of the land covered by this mortgage were conveyed to William T. Gann and the remaining 2,960 acres to George I. Gann; of the consideration of the mortgage which the plaintiff attacks as fraudulent $15,000 was found by the court to have been added with the purpose “that in the event the said George I. Gann is compelled to pay one-half of said mortgage, or in the event his land is sold under foreclosure thereof, the said William T. Gann should indemnify George I. Gann in the sum of one-half of the amount of said mortgage.”
George I. Gann in his answer alleged and the court may be regarded as having found—
“That at the time of the division of said ranch, it being understood between this answering defendant and said W. T. Gann that the portion of said ranch so conveyed to] this answering defendant in severalty and which was covered by said [insurance company] mortgage could be sold to satisfy one-half of said mortgage for thirty thousand dollars by said Bank Savings Life Insurance Company, by reason whereof it was then agreed between this answering defendant and said W. T. Gann that this answering defendant should assume and agree to pay one-half of said mortgage for thirty thousand dollars, in consideration whereof said W. T. Gann agreed to repay to this answering defendant one-half of said thirty thousand dollars and secure the payment thereof by the mortgage [here attacked] given by said W. T. Gann to this answering defendant, and that said fifteen thousand dollars, by reason thereof, became a part of said mortgage for forty thousand dollars so given by said W. T. Gann to this answering defendant on said date.”
The meaning appears to be that $15,000 of the $40,000 mortgage was intended to indemnify George I. Gann against being required to pay — personally or through the sale of his share of the land— more than half of'the insurance company mortgage. We see nothing objectionable in this. A mortgage may be given as indemnity against a contingent obligation as well as for the security of a fixed and absolute debt. Such a mortgage cannot be enforced until the mortgagee has been damaged (27 Cyc. 1065, 1067), but that does not interfere with its validity. The judgment for the foreclosure of the mortgage here involved has already been vacated, the action remaining pending, and the lights of all parties can be protected according to the facts upon' the rendition of a new judgment. ■
The cause is remanded with directions that by a supplemental order the language of the judgment be made more definite and that the judgment remain as it is or be modified in accordance therewith, as already indicated. | [
-14,
110,
-104,
-82,
26,
-32,
40,
-38,
73,
-96,
-93,
89,
-19,
-62,
4,
45,
-12,
89,
-11,
106,
-43,
-77,
39,
-53,
-46,
-13,
-48,
-43,
-75,
125,
-28,
87,
13,
32,
-54,
-107,
102,
-126,
-53,
84,
14,
-124,
-72,
69,
-39,
64,
48,
-65,
86,
77,
85,
-1,
-13,
47,
25,
75,
73,
40,
-37,
57,
-48,
-72,
-117,
13,
109,
1,
53,
53,
-100,
67,
90,
-114,
-112,
49,
1,
-24,
114,
-74,
-58,
116,
111,
59,
9,
102,
98,
1,
109,
-49,
-12,
-103,
47,
-27,
-115,
7,
-110,
89,
11,
41,
-74,
-99,
117,
16,
6,
-2,
-20,
-115,
14,
108,
19,
-82,
-42,
-77,
-113,
-10,
26,
-103,
-26,
-109,
49,
112,
-52,
-96,
92,
102,
120,
-103,
-100,
-3
] |
The opinion of the court was delivered by
Wedell, J.:
This is an appeal by a divorced husband from an order overruling his motion -to dismiss garnishment proceedings instituted by his former wife against his employer for the purpose of enforcing an order of separate maintenance which had been made prior to a judgment in her favor for divorce and alimony.
The order for separate maintenance, made in a prior action, provided for monthly installment payments to the wife in the sum of $70 per month until further order of the court. Prior to the decree of divorce appellant had paid $425, and á balance remained due and unpaid on that order in the sum of $415 on the date appellee obtained a decree of divorce and an alimony judgment in the sum of $2,000. The permanent alimony judgment was made payable in semimonthly installments of various amounts, during different periods, until it was fully discharged. It is the balance of $415 which remained unpaid under the separate maintenance order at the time the divorce was granted which appellee sought to collect by garnishment.
Appellant moved to have the garnishment proceedings dismissed upon the ground the trial court, in the action for divorce and alimony, found and determined appellee should be awarded the sum of $2,000 as and for permanent alimony and upon the ground the order for separate maintenance was merged in the subsequent decree of divorce and alimony. The motion was overruled and the husband appeals.
A number of questions are presented for review. The principal question pertains to the ruling on the above motion.
A few additional facts may be helpful. The divorce action was instituted by appellant. Appellee answered and filed' a cross petition in which she sought a divorce and alimony. At the time of trial appellant, with leave of court, withdrew his petition. Appellee introduced evidence in support of her cross petition. The journal entry of judgment does not disclose that appellant introduced any evidence. It is conceded no evidence was adduced by appellee with respect to the balance which was then past due and payable on the previous order for separate maintenance and that no.mention was made to the trial court concerning that subject. The order for separate maintenance and the judgment for divorce and alimony were rendered by trial judges of different divisions of the district court of Shawnee county.
Appellee concedes that an order or judgment for installment payments for child support or for the maintenance of a wife which are not yet due may be modified in accordance with changed conditions but insists past-due installments are fixed, .cannot be reduced, and are enforceable as any other judgment. (Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946.) That is ordinarily true. More recent decisions to the same effect are Burnap v. Burnap, 144 Kan. 568, 61 P. 2d 899; Davis v. Davis, 148 Kan. 211, 81 P. 2d 55; Sharp v. Sharp, 154 Kan. 175, 118 P. 2d 561; McKee v. McKee, 154 Kan. 340, 118 P. 2d 544. But do those decisions reach the specific issue presented here?
The permanent alimony judgment in the sum of $2,000 clearly did not reduce the amount past due on the prior order for separate maintenance. The question of reducing past-due installments is, therefore, not here involved. The only question is whether the order for past-due installments for separate maintenance can'now be enforced. That depends upon whether the subsequent decree of divorce and alimony judgment, in legal effect, constituted a final settlement and adjudication of all obligations, of both husband and wife, which inhered in and grew out of the former marital relation.
No property was involved. The alimony judgment was not for $2,415, the amount appellee now claims appellant owes, but for $2,000. In her cross petition appellee expressly sought and was given a final alimony judgment.- We are informed the alimony judgment in the sum of $2,000 was rendered pursuant to an oral agreement announced in open court. No mention in the divorce and alimony action was made by appellee concerning the previous order for separate maintenance or the amount then due pursuant thereto. In an action for divorce, matters of alimony, division of property and all obligations arising out of or connected with the marital relation may be presented and adjusted. In this state it is the general and well-established policy of the law to require every question properly involved in a divorce action to be finally settled and adjudicated at the time the marital tie is dissolved. A few of the decisions-are Roe v. Roe, 52 Kan. 724, 35 Pac. 808; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Heivly v. Miller, 102 Kan. 313, 169 Pac. 1141; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416; Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409; Mayfield v. Gray, 138 Kan. 156, 23 P. 2d 498.
It expressly has been decided that all matters which properly may be presented and considered in a divorce action must be presented, and if not presented the judgment is as full and complete a bar as if the matter had been fully tried and determined. (McCormick v. McCormick, Pinkerton v. Pinkerton, and Mayfield v. Gray, all supra.) There are other decisions to the same effect. The judgment of divorce, although it may not expressly so declare, excludes everything not expressly mentioned or reserved in it. (McCormick v. McCormick, and Mayfield v. Gray, both supra.) After the divorce has been granted no award of alimony can be made or changed. (Noonan v. Noonan, and Mayfield v. Gray, both supra.)
Most of the decisions, heretofore cited, were reviewed in the May-field case, pertinent portions from the opinions were quoted, and we do not deem it necessary to unduly extend this opinion. In the Mayfield case the husband, after a divorce and alimony had been granted, was barred from maintaining an action on a note against his wife when he had failed to present the note in the divorce action. We there held:
“In an action for divorce, matters of alimony and division of property are open to consideration, and if there is any question with respect thereto, it must be presented and adjusted at that time.
“Where one spouse is indebted to the other at the time of trial of a divorce action, and a decree fixing property rights is rendered, it will be presumed that such indebtedness is settled, adjusted and adjudicated ■ in such decree.” (Syl. Ulf 1, 2.)
In the case of Heivly v. Miller, supra, a prior adjudicated claim of the wife, which was not presented in her action for divorce and property settlement, was declared barred. While it is true the judgment in the Heivly case recited it was a final and full adjudication of all property rights and claims between the parties, it will be observed that express recital was simply in harmony with the well-established general policy of this state in divorce actions. We there said: .
“It is contended by the plaintiff that the allowance by the probate court is as conclusive upon the parties as a judgment of the district court. Assuming that it was as conclusive as plaintiff contends, it must be held that her rights in the claim were finally and fully determined by the judgment rendered when the divorce was granted. The decree purports to dispose of all property rights of the parties and of every claim existing between them. The terms of the decree cover adjudicated claims as completely as claims or rights which had not been determined by a court. The facts in the case bring it within the rule stated in Roe v. Roe, 52 Kan. 724, 35 Pac. 808, that 'the final judgment in an action granting a divorce settles all property rights of the parties, and is a bar to an action afterward brought by either party to determine the question of alimony, or any property rights which might have been settled by such judgment.’ (Syl. If 2.) In this case the plaintiff’s claim might not only have been settled in the action of divorce, but the court in its judgment declares that all property rights have been determined and all existing claims adjusted. The statute authorizes such an adjudication of property rights when a divoi-ce is granted and, besides, as stated in Roe v. Roe, supra, ‘it is the general policy of the law, strongly adhered to by this court in its prior decisions, to require every question properly involved in any suit to be disposed of by the judgment finally rendered in the case.’ (p. 728.) The Roe case must be regarded as a controlling authority in this oné.” (p, 315.)
Appellee directs our attention to a statement in 27 Am. Jur., Husband and Wife, § 429, which on its face would indicate a decree of divorce .has no effect upon the husband’s liability to pay install- merits of separate maintenance or alimony which have already accrued at the time of the divorce decree. In the cross petition of the instant case, appellee sought not only a divorce but also a final alimony judgment. Her request was considered and-allowed in the sum of $2,000. If appellee desired to collect in addition thereto the sum then due on the prior order for separate maintenance she should have presented the claim.
In passing we may observe the reference in support of the text from American Jurisprudence, includes an annotation in 42 A. L. R. 1375, upon the subject: “Decree of divorce in one state as affecting previous order or decree for separate maintenance in another.” Careful reading of the annotator’s preliminary remarks will readily disclose that the principal case to which the annotation is appended and at least some of the cases contained in the annotation involve jurisdictional questions not contained in the instant case. But in the annotation see the case of Gilbert v. Gilbert, 83 Oh. St. 265, 94 N. E. 421, where also alimony was sought, which is in harmony with our own views. Assuming there is a conflict of authority, we are persuaded the long established basic principle here involved and announced in our former decisions is sound and should not be disturbed.
In view of this conclusion upon the principal question presented it is unnecessary to treat other contentions touching subordinate issues. It follows the judgment of the trial court must be reversed. It is so ordered.
Hoch, J., not participating. | [
-48,
96,
-76,
93,
-118,
96,
3,
-116,
120,
-127,
55,
83,
-17,
-30,
0,
121,
-78,
75,
97,
120,
69,
-77,
39,
65,
-2,
51,
-7,
-51,
-75,
111,
-27,
-42,
76,
48,
-86,
-43,
70,
-62,
-59,
84,
-114,
6,
-117,
109,
-47,
-58,
48,
-5,
82,
11,
53,
-122,
-13,
45,
24,
-62,
104,
44,
91,
47,
80,
-78,
-117,
5,
95,
28,
-111,
4,
-42,
-58,
88,
46,
-112,
57,
0,
-24,
115,
38,
-122,
116,
107,
-69,
9,
116,
98,
3,
4,
-17,
-100,
-116,
30,
25,
-97,
-25,
-103,
88,
11,
9,
-74,
60,
100,
62,
-121,
-10,
125,
-123,
95,
108,
3,
-50,
-106,
-109,
-113,
125,
-100,
-120,
-17,
-95,
17,
113,
-49,
-94,
92,
70,
59,
-101,
-58,
-108
] |
The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case. It was presented to the compensation commissioner upon the joint petition and stipulation of the claimant and respondent. This may be summarized or quoted as follows: Claimant and respondent were operating under the workmen’s compensation act. On October 21, 1939, claimant met with personal injuries by accident arising out of and in the course of his employment when he was struck in the eye by a piece of gravel. Claimant’s injuries and disabilities are:
“(a) According to expert medical opinion as set out in medical reports of J. N. Sherman, M.D.
“(b) That according to the consensus of opinion of the parties hereto, claimant’s injuries and disability for which he is entitled to claim compensation are: The total loss of the use of the left eye for a period of 16 weeks followed by partial loss of 80% of the use of said eye for a period of 38 weeks from February 11, 1940, to November 6, 1940, at which time his disability was reduced to 20% loss of the use of said eye by the use of corrective lens furnished by the respondent, and that the parties agree that claimant is entitled to compensation for 57.6 weeks therefor.”
The wages of claimant, notice of accident, claim for compensation, and the reasonable medical and hospital expenses, amounting to $266.75 paid by respondent, and the fact claimant had returned to work, were all stipulated, and no question concerning them is raised. The parties request that the workmen’s compensation commission issue its order making such an award as is just and proper under the facts, and that the costs be taxed to respondent.
The abstracted portion of the medical report referred to in the stipulation may be summarized or quoted from as follows:
“There was a cut through the cornea in which the iris was incarcerated. The anterior chamber of the eye was filled with blood.” The injury resulted in a permanent defect and loss of use, “Impairment of vision. . . . Only partial loss. About 20% with use of glasses. Without glasses, about 85% loss, assuming, of course, the vision was normal in this eye before the accident.” Normal recovery was delayed “by reason of adhesion of the iris of [to] the cornea and absorption of the lens.” Under the head of “Remarks” requesting information of value not previously included: “By reason of the patient having an aphicic [aphakic] eye of course he is permanently disabled being unable to see either at a distance or close without a very strong lens. Even though this lens is put on the patient he will be unable to use it because the uninjured eye is very strong and he will use it regardless of the correction on the injured eye.”
The pertinent finding of the commissioner is as follows:
“The commissioner, having considered the joint petition and stipulation, and the medical reports attached thereto, is of the opinion and finds that the claimant herein has sustained fifteen (15) weeks compensable temporary total disability as the result of his accidental injury of October 21, 1939, which has been followed by eighty (80%) percent permanent partial loss of vision of his left eye, being the loss of vision found to exist without the aid of corrective lens. With the aid of corrective lens the loss of vision in the eye is reduced to twenty (20%) percent. However, there is no evidence whatever to show that this workman was required to wear glasses or corrective lens prior to the date of his accidental injury. The commissioner is of the opinion, therefore, and finds that the loss of vision of the eye should be based on that percentage of loss of vision found to exist without the aid of corrective lens.”
An award was made in accordance with this finding. Respondent appealed to the district court where, after a hearing the court found that a complete statement of the history and facts of the case are set out in the findings and award of the commissioner.
“. . . that all facts were agreed upon by claimant and respondent, and that the only question for determination by the court is a question of law, whether the claimant’s loss of vision of the eye should be based on the percentage of loss of vision found to exist with the aid of corrective lens, or without the aid of corrective lens.
“The court further finds that the findings and award of the workmen’s compensation commissioner should be approved and confirmed and that the loss of vision of the eye should be determined without the aid of corrective lens; that claimant has an eighty percent permanent partial loss of vision of the left eye and that award should be made in accordance therewith.”
Judgment was rendered for the claimant in harmony with these findings.
From the record we understand respondent furnished claimant the corrective lens November 6, 1940; also that the workman was about fifty years of age at the time of his injury.
The parties in preparing the stipulation, and the compensation commissioner and the court in determining the award, followed the method of computation in such a case outlined in Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592. However, that case did not involve a question relating to a decrease of the award because of a corrective device or appliance furnished the workman by his employer.
Respondent has appealed and presents as the only legal question involved whether, in determining the partial loss of the sight of the eye, consideration should have been given to the use of corrective lens.
The parties will have no difficulty computing the amount of compensation either under the judgment of the court or under the theory contended for by appellant.
Counsel for appellant quote excerpts from the opinions in Cramer v. Railways Co., 112 Kan. 298, 211 Pac. 118; Gentry v. Williams Brothers, 135 Kan. 408, 10 P. 2d 856, and Rupp v. Jacobs, 149 Kan. 712, 717, 88 P. 2d 1102, which in differently worded language set out the purpose of the compensation act and state that the public, the employer and employee are interested; that the measure was enacted because of the waste of life and limb in industrial accidents; that the public in the end pays the financial loss in the increased price of the product, and that it was designed to establish a just and equitable basis for compensation of such workmen engaged in hazardous employment. There is no controversy over these general purposes of the act. They cite G. S. 1939 Supp. 44-510, as follows:
“The amount of compensation under this act shall be: (1) Treatment and care of injured employees. It shall be the duty of the employer to provide the services of a physician or surgeon and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus, as may be reasonably necessary to cure and relieve the workman from the effects of the injury; . . . (3) Where death does not result from the injury. . . . (c) Where disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter compensation shall be paid as provided in the following schedule, ...
“(15) For the loss of an eye, or the complete loss of the sight thereof, 60 percent of the average weekly wages during one hundred ten weeks. . . .
“(19) . . . For the permanent partial loss of . . . the sight of an eye . . . compensation shall be paid at 60 percent of the average weekly wages, not in excess of eighteen dollars per week, during that proportion of the number of weeks in the foregoing schedule provided for the loss of . . . the sight of an eye . . . which the partial loss thereof bears to the total loss of . . . the sight of an eye . . . ”
The medical attention provided for in (1) of this section is part of the compensation due the employee. (Richardson v. National Refining Co., 136 Kan. 724, 727, 18 P. 2d 131; Taylor v. Missouri Pac. Rld. Co., 146 Kan. 668, 73 P. 2d 62.) Where medical attention will cure or greatly benefit the injury to the workman caused by an accident it has been held an unreasonable refusal on the part of the workman to receive the medical attention will justify the commissioner or the court in denying compensation. (Strong v. Iron & Metal Co., 109 Kan. 117, 126, 198 Pac. 182; Gentry v. Williams Brothers, supra, pp. 409, 410.) In each of those cases the workman was claiming total permanent disability because of a hernia, which the evidence disclosed could be relieved entirely by an operation, for which his employer was willing to pay and which there was no reason to believe would be a danger to the workman.-
The injury in this case is not of that type; it is a scheduled injury. The statute [G. S. 1941 Supp. 44-510 (3) (c) (1) to (26) ] contains a schedule providing for the compensation to be paid for injuries to specific parts of the body. In Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861, it was said:
“The legislature evidently believed the loss of a specific member or organ deserved the compensation stated, whatever else occurred.” (p. 373.)
Authorities from other states having a similar statute are to the same effect.
“. . . when the injury consists of one of the specified scheduled ones and of that alone, the commission is without jurisdiction to make an award on any different basis than that set forth in the statute, . . . ” (Ossic v. Verde Central Mines, 46 Ariz. 176, 187, 49 P. 2d 396.)
The rule was followed in H. K. Toy, etc., Co. v. Richards, 68 Ind. App. 653, 117 N. E. 260, where it was said:
“It is immaterial that an injury did not seriously impair the employee’s working power or that the employee was able to return to work within a short time after the injury.” (Syl. ¶ 2.)
The same thought is expressed in different language in other cases: Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A. 979: The payment “is not to vary according to his age or the character of his work or his expectation of life.” (Syl. ¶ 2.) National Tank Co. v. Gold, 185 Okla. 574, 95 P. 2d 253: “This schedule is comprehensive, complete, and exclusive.. . . . ” (p. 575.)
To the same effect see: Cresson Co. v. Industrial Com., 90 Colo. 353, 9 P. 2d 295; Lente, Appellant, v. Luci, 275 Pa. 217, 119 A. 132; Catlett v. Chatt. Handle Co., 165 Tenn. 343, 55 S. W. 2d 257; Western Condensing Co. v. Industrial Comm., 234 Wis. 452, 291 N. W. 339; Liberty Mutual Ins. Co. v. Holloway, 58 Ga. App. 542, 199 S. E. 334; Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N. W. 220; Kajundzich v. State Ind. Acc. Com., 164 Ore. 510, 102 P. 2d 924.
We have no case in our state suggesting that compensation for the loss of leg, for the arm, hand, or other member of the body, where such compensation is provided by the schedule, should be decreased by the use of an artificial limb, or that a partial loss of such a member should decrease the compensation because of the use of braces or other artificial appliances. We are cited to no case from other jurisdictions so holding, and our own research has disclosed none.
In Masoner v. Wilson & Co., 141 Kan. 882, 44 P. 2d 265, prompted by arguments in the brief, there is a discussion as to whether a workman’s industrial vision should be computed with or without the use of glasses. It is pointed out that the decisions from other states, some of which have a statute on the subject, are not in harmony; that we have no statute on the subject in this state; and it was said:
“Perhaps it would be governed by the principle which underlies our decisions to the effect that under some circumstances an injured workman should submit to an operation (Gentry v. Williams Brothers, 135 Kan. 408, 10 P. 2d 856), although this point is not suggested.” (p. 884.)
The question was not decided in that case for reasons stated. The quoted portion of the opinion, however, gives appellant some hope. Our conclusion now is that the matter is not governed by the principle which underlies the Gentry case, for the reason that this is a scheduled injury and the amount of compensation payable is to be determined by the schedule applicable thereto. A further reason, if one be needed, is that the use of glasses would not restore the lens of the eye lost by the injury plaintiff received in this case—the physical injury is not cured by the use of glasses as a hernia would be cured by a successful operation.
Appellant cites Washington Terminal Co. v. Hoage, 79 F. 2d 158, where the United States court of appeals of the District of Columbia, construing the federal longshoremen’s and harbor workers’ compensation act, 33 U. S. C. A. § 901 et seq., which is construed to provide compensation for loss or disability in earning power, held assistance of glasses should be considered in determining extent of loss of vision. The court cited Frings v. Pierce-Arrow Motorcar Co., 169 N. Y. S. 309, where the court, construing a state statute identical with the federal one, reached the same conclusion, and other New York cases. Massett v. Armerford Coal M. Co., 82 Pa. Superior Ct. 579, construing a statute identical with that of New York, and Cline v. Studebaker Corporation, 189 Mich. 514, 155 N. W. 519, both reached the same conclusion.
The cases bearing upon the question as to whether compensation for injury to an eye should be computed without or with the aid of corrective lens are collected in 99 A. L. R. 1507 and in previous annotations and in the subsequent decisions. Each of these annotations has noted a conflict in the authorities, which it is said continues to exist. This conflict for the most part results from differences in the statute being considered. Some statutes, it is said, make a specific provision with regard to the question. Where the statute does not specifically or indirectly require a holding that the use of corrective lens must be taken into account the great weight of authority is that the compensation should be computed without the use of such corrective lens. (Johannsen v. Union Iron Works, 97 N. J. L. 569, 117 A. 639; Petrillo Co. v. Marioni, 33 Del. 99 [3 Harr. 99], 131 A. 164; Graf v. Nat. Steel Products Co., 225 Mo. App. 702, 38 S. W. 2d 518; Livingston v. St. Paul Hydraulic Hoist Co., 203 Minn. 62, 279 N. W. 829; Parrott Motor Co. v. Jolls, 168 Okla. 96, 31 P. 2d 925; Fuel Co. v. Appeal Board, 118 W. Va. 565, 191 S. E. 49; Platt-Rogers v. Industrial Com., 101 Colo. 458, 74 P. 2d 673; Schrum v. Upholstering Co., 214 N. C. 353, 199 S. E. 385.)
It is conceded we have no statute in this state which requires the commissioner or the court, in considering the amount of compensation due for an injury to an eye, to take into consideration the aid which might be furnished by corrective lens. On the contrary, our statute with respect to scheduled injuries has been uniformly construed as being the sole guide to determine the amount of compensation when the injury is once determined. See: Hering v. San Ore Construction Co., 130 Kan. 70, 285 Pac. 592; Gallivan v. Swift & Co., 136 Kan. 234, 14 P. 2d 665; Smythe v. Western Star Milling Co., 136 Kan. 416, 15 P. 2d 419; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79; Justice v. A. C. Flour Mills Co., 147 Kan. 402, 76 P. 2d 802; Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684; Amos v. J. E. Trigg Drilling Co., 153 Kan. 617, 113 P. 2d 107, and earlier cases cited therein.
More than that, since the general revision of our compensation law in 1927 compensation commissioners in this state have issued pamphlets concerning procedure and rules. In rating eye injuries they have been using the Snellen method of notation for distance and near vision, together with the adopted percentage of loss of vision and weeks of compensation due as measured by the Snellen standard. This method is accepted and approved by the ophthalmological section of the American Medical Society and the one adopted in many states. With respect to rating eye injuries the following rule among others has been in use:
“Where the injury is to one eye, so that the measurement of compensation is subject to the schedule, the percentage loss of vision is that without the aid of corrective lens, though the employer is required to furnish corrective lens as a part of his medical liability.” (Procedure and Rulings of Kansas Workmen’s Compensation Commissioner, 1941- Revision, p. 65.)
Had the statute, as interpreted by the decisions above mentioned or the practice of the compensation commissioner in rating eye injuries, not been satisfactory to our people the legislature has had frequent opportunity to pass such a statute on the question as would be thought desirable. The fact that no such statute has been enacted indicates that our people are satisfied with previous holdings of the court and the practice of the compensation commissioner upon this question.
Whatever may be the rule in other jurisdictions, or the reasons for it, we are convinced that under our statute when a workman sustains an injury to an eye, compensation for which is subject to the schedule, the percentage loss of vision is that without the aid of corrective lens.
We find no error in the record. The judgment ,of the court below is affirmed. | [
-48,
106,
-108,
-115,
56,
98,
42,
26,
89,
-89,
-89,
91,
-9,
70,
29,
45,
-89,
53,
-47,
43,
-2,
-93,
19,
75,
-46,
-45,
115,
-57,
-71,
105,
-10,
-44,
71,
56,
10,
-111,
-26,
-56,
-59,
84,
-50,
-121,
-85,
-19,
-39,
0,
56,
46,
-112,
67,
17,
-98,
107,
46,
28,
-41,
13,
44,
-53,
41,
-47,
-80,
-120,
13,
-3,
17,
-125,
6,
-100,
71,
-40,
12,
-104,
49,
64,
-20,
114,
-74,
-62,
116,
43,
-103,
28,
98,
102,
48,
21,
-75,
104,
-72,
46,
-42,
-113,
-91,
-105,
16,
-101,
1,
-99,
-103,
126,
84,
46,
120,
-3,
5,
85,
33,
3,
-117,
-74,
-79,
-49,
36,
-100,
-117,
-5,
-117,
-77,
117,
-50,
-74,
84,
7,
123,
-101,
-97,
-102
] |
The opinion of the court was delivered by
Allen, J.:
On April 15,1929, in a court of competent jurisdiction in the state of Colorado, Herbee A. Anderson secured a decree of divorce against Arthur P. Anderson. The care and custody of the minor daughter was awarded the mother, Herbee A. Anderson. The decree provided that the defendant pay into court for the support and benefit of the minor child the sum of twenty-five dollars each month.
In October, 1931, the defendant, Arthur P. Anderson, removed to Republic county, Kansas, where he has since resided.
On July 24, 1939, Herbee A. Anderson brought an action in the district court of Republic county, Kansas, against Arthur P. Anderson, based on the judgment of the Colorado court, in which plaintiff prayed judgment for the unpaid installments for the child’s support for a period of five years immediately prior to the filing of the action. On the 5th day of June, 1940, plaintiff recovered judgment against defendant in the sum of $1,794.35, with interest.
Shortly after defendant Arthur P. Anderson came to Kansas, a farm of 160 acres was purchased and the title taken in the names of Arthur P. Anderson and his father, John A. Anderson. On August 16, 1938, John A. Anderson conveyed his interest in the land to his son Arthur. Arthur and his father lived on the farm until the death of John A. Anderson, which occurred shortly after the date of his deed to his son. Arthur P. Anderson continued to live on the land, and in August, 1939, was married to one Anna Johnson. On September 1, 1939, Arthur conveyed the 160 acres of land to his wife. The consideration mentioned in the deed was one dollar. The deed recited: “No consideration excepting as above shown, hence no revenue required.” Since the marriage Arthur P. Anderson and his wife have occupied the land, claiming it as their homestead.
On January 22, 19.41, a general execution was issued under the judgment of June, 1940, and the sheriff, finding no goods or chattels, levied the same on the 160 acres occupied by Anderson as his homestead.
The petition of plaintiff, after setting forth the facts above outlined, further alleged that during the five-year period on which the judgment for child support was based, the defendant Arthur P. Anderson had no right or claim in the real estate above mentioned; that during the five-year period the defendant owned a large amount of personal property consisting of horses, cattle and farm machinery ; that this pei'sonal property was sold subsequent to the filing of the action, and a part of the proceeds was used in discharging a part of a mortgage lien on the land; that defendant was under a legal and equitable duty and obligation to use the income from such personal property to provide for his minor child, and if the income was insufficient, to sell the same and to use the proceeds for the benefit of his child. The petition further alleged that by reason of the facts set forth, the defendant holds the legal title in trust for the benefit of his minor child to the extent of the accumulated unpaid installments of child support as determined by the judgment of the court, and plaintiff asks that the lien of the judgment be declared prior to the homestead of the defendants.
In the answer of defendants it is alleged that at all times since their marriage they have, lived upon the land, claiming it as their homestead. Trial was had on the issues joined and judgment rendered in favor of defendants. . '
We think the judgment should be affirmed.
The defendant Arthur P. Anderson was the owner of and living on the land in question in August, 1939, when he married the defendant Anna. Since that time the defendants have lived upon the land, claiming the land as their homestead. The judgment against defendant Arthur P. Anderson was entered in June, 1940. It is not contended the lien of the judgment attached to the land prior to the date the homestead was acquired by the defendants, nor that the judgment falls under any exception to homestead exemption statute, G. S. 1935, 60-3501.
. The chief contention is that during the five-year period on which the judgment is based the defendant Anderson had complete use of all of his property; that he made no contributions to the support of his child; that failure to pay for the support of the child resulted in the defendant Anderson being unjustly enriched; that as a result the defendant holds the legal title to the land in trust for the benefit of his minor child to the extent of the accumulated unpaid installments now represented by the judgment.
Our statute G. S. 1935, 60-1510, provides that when a divorce is granted the court shall make provision for the custody, support and education of the minor children of the marriage. The parental duty to care for and support the minor children of the marriage, imposed by the ties of nature and commanded by the statute in case of divorce, has always been enforced by this court. But the notion that this parental duty impresses the property of the recalcitrant father with a trust, which would prevent the alienation of such property until the fulfillment of his obligations, does not, so far as our research reveals, appear to have been presented in this naked form to the courts. However, analogous situations are not wanting. In Rice v. Andrews, 127 N. Y. Misc. 826, 217 N. Y. Supp. 528, the husband secured a divorce against his wife and was awarded the custody of the minor child. Thereafter the father died, leaving a last will in which he totally disinherited the child. The child, by his guardian, asked to have the decree modified by having the estate of the father charged with his maintenance during his minority, and to impress the assets of the estate with a lien. The motion was denied, the court holding it was powerless to interfere with the right of the father to dispose of his estate as he saw fit. In Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A. L. R. 1259, the father of six children had deserted the children and their mother, and had not for a long period contributed to their support. The children by their next friend brought a proceeding in equity against their father to have the chancellor fix in advance allowance for the children, to enter a decree requiring the father to pay the amount fixed, and to adjudge a lien on defendant’s real estate for the sums ordered to be paid. In sustaining a demurrer to the petition, the court stated that the law as known and expounded for centuries failed to sanction any such proceedings. Clearly in these cases the property of the father was not regarded as a trust fund.
On the question of unjust enrichment for failure to pay the child during the five-year period, counsel cite Restatement, Restitution, § 168, which reads:
“Where a person holding property in which another has a beneficial interest transfers title to the property in violation of his duty to the other, the transferee holds the property subject to the interest of the other, unless he is a bona fide purchaser.”
The obvious answer would seem to be that the defendant Anderson was holding his own property, and that he was not holding it in violation of any duty that the law imposed. In University v. Forbes, 88 N. H. 17, 183 Atl. 860, where a claim of unjust enrichment was urged as a ground for restitution, the court stated:
“The doctrine of unjust enrichment is that one shall not be allowed to profit or enrich himself at the expense of another contrary to equity. While it is said that a defendant is liable if ‘equity and good conscience’ requires, this does not mean that a moral duty meets the demands of equity. There must be some specific legal principle or situation which equity has established or recognized, to bring a case within the scope of the doctrine.
“The defendant here, it is true, is better off. by the amount of the plaintiff’s claim than if the latter had not been the victim of misfortune. And it is also true that he paid nothing for his profitable position. But his benefit is not unjust unless it is unlawful. The injustice must be one for which the law gives redress under its rules.”
The theory that the land should be impressed with a trust cannot be sustained.
We think the judgment of the trial court must be affirmed on another ground. In the decree of divorce in Colorado, it was provided that the defendant Anderson should pay for the support of the minor child the sum of twenty-five dollars per month. Under the law of this state such installments when due and unpaid become final judgments. (Sharp v. Sharp, 154 Kan. 175, 118 P. 2d 561.) The law of Colorado was not pleaded and we may assume the law of Colorado on that question is the same as the law of this state. (Trunkey v. Johnson, 154 Kan. 724, 726, 121 P. 2d 247.) The action in Kansas resulting in the judgment of June 5, 1940, was based on the Colorado money judgment. The general rule is that all causes of action upon which suit is brought and judgment obtained are merged in the final judgment, and cannot be the foundation of subsequent action. (Price v. Bank, 62 Kan. 735, 64 Pac. 637; City of Topeka v. Ritchie, 102 Kan. 384, 387, 170 Pac. 1003; Thisler v. Miller, 53 Kan. 515, 36 Pac. 1060; Rossiter v. Merriman, 80 Kan. 739, 104 Pac. 858; Redden v. Bank, 66 Kan. 747, 71 Pac. 578.)
The present action is therefore unlike Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628, where the divorce decree in the foreign state contained no order as to the support and maintenance of the minor children.
Where no provision is made in the divorce decree for the minor children an independent action by the mother may be maintained. (Rowell v. Rowell, 97 Kan. 16, 154 Pac. 243.) But in the case before us the cause of action has been reduced to a money judgment, and any cause of action plaintiffs may have had is merged in, that júdgment. That judgment was not appealed from and is final. It cannot be amended by a bill in equity based upon a nonexistent cause of action.
We hold the homestead exemption right of defendants superior to the lien of the judgment of plaintiffs.
The judgment is affirmed.
Hoch, J., not participating. | [
-15,
108,
-79,
124,
-86,
-12,
42,
-104,
123,
-95,
-75,
83,
-21,
-37,
0,
105,
122,
45,
80,
121,
-60,
-73,
23,
-64,
114,
-13,
-7,
-35,
-79,
-51,
-28,
84,
72,
48,
2,
53,
98,
64,
-63,
24,
-114,
8,
-87,
104,
-56,
-62,
52,
111,
48,
11,
53,
-81,
-13,
42,
125,
-61,
-20,
46,
-37,
-81,
-104,
-8,
-118,
-123,
111,
19,
-79,
37,
-124,
5,
88,
42,
-112,
49,
0,
-24,
51,
-90,
-122,
116,
74,
-71,
8,
118,
103,
37,
84,
-17,
-24,
-120,
15,
-1,
29,
-89,
-98,
88,
43,
37,
-74,
-99,
117,
85,
-117,
-6,
-27,
13,
61,
-24,
5,
-118,
-42,
-111,
-113,
56,
-104,
2,
-5,
-91,
48,
113,
-115,
-94,
92,
71,
122,
19,
-117,
-80
] |
The opinion of the court was delivered by
Smith, J.:
This was a petition for an order permitting an administrator to sell real estate for the payment of debts. Judgment was for an intervening petitioner. The widow, who claims a homestead right in the real estate, has appealed.
The case was here once before. (See Meech v. Grigsby, 153 Kan. 784, 113 P. 2d 1091.) The purchaser of the property under a written contract with the administrator, pursuant to an order of sale by the probate court, claims that he is entitled to the property or if he is not entitled to it he is entitled to a lien on it to the extent of some improvements he placed on'it after he purchased it. The property involved consisted of fourteen lots in the city of Prescott. Some of these lots were on one side of an alley and some on the other. The house stood on one side of the alley and the barn and well were on the other. The widow first caused an application to be filed by the administrator to sell this real estate to pay debts the estate owed. Some proceedings were taken to bring this about. When it was discovered that there had been a mistake in the notice published so that the land was not properly described a second application was made. Sometime thereafter the application was set for hearing on. the question of whether or not the land would be sold to pay the debts. A few days before this second sale occurred the widow for the first time complained to the probate judge that she had a homestead right in this property and when the case came on to be heard she raised that point and objected to an order of salé on the ground that the property was her homestead and not subject to sale for payment of debts. The probate court ruled adversely to her claim and she appealed to the district court. The district court held that she was entitled to a homestead right and found that it included one acre of the real estate on which the dwelling house and improvements were situated.
The trouble about that was that the house was on one side of the alley and the well and barn on the other side.
On appeal this court held that since the lots on which the house stood and those on which the barn and well were located were not contiguous, the homestead could not consist of some lots on one side of the alley and. some on the other, and as a matter of fact the particular lots upon which she had a homestead right had not been determined. This court directed that the case be sent back for a new trial in order to permit the widow to make a selection of the homestead property and that one acre she chose to take might be definitely described. Before the widow had made claim that the land was her homestead the administrator had filed á petition praying for an order to be permitted to sell the real estate for the payment of taxes. This application was set for trial on the 15th day of February, 1940; the widow was advised of the date of this hearing and had notice of it but did not appear. Upon this hearing an order of sale was directed to issue and did issue and the administrator entered into a contract with the appellee here for the purchase of the real estate. Just preceding the execution of this contract the administrator and the widow discussed the sale of the property with appellee and had some discussion about the price. The widow said she was not satisfied with the price of $650 offered by appellee, and it was suggested that she discuss this with appellee. Later the administrator advised her that he had entered into a contract to sell the real estate to appellee and requested her to bring the papers necessary to complete the transaction and she did deliver the abstract and some old deeds and the key to the property to him. Upon the execution of the contract on February 16, 1940, the appellee entered into immediate possession of the property and paid $100 on the purchase price. It was in bad condition and in need of some repairs in order to make it habitable. Appellee immediately began to expend money for repairs and material necessary to make these repairs, all of which was known to the widow. Sometime after that the widow called at the property and knew that the repairs had been made and that more improvements were being made.
When the case was here before it was sent back so that the trial court might make a finding as to the particular land which the widow said was her homestead. This court also ordered that a determination be had of two other questions, that is, whether the widow by her acts and conduct with reference to the sale of the property had waived her homestead rights thereunder,- and second, if she was not éstopped from claiming homestead rights, then what were Grigsby’s rights, if any, under the occupying claimants’ act.
The case has now been tried on these issues. The court made extensive findings of fact, about as they have been detailed here, and found further that the widow was familiar in a general way with the efforts made by herself and administrator to sell the property following the death of her husband up to and including the last hearing on June 1, 1940, on the petition for authority to sell real estate; that she personally made efforts to sell it to appellee and others; that she knew the date of the first hearing on the petition for authority to sell-real estate and voluntarily absented herself from it; that she at all times represented to appellee and others the property was for sale up to and until the date of the last hearing, or a day or two preceding it; that from and after February 16,1940, she knew that a contract of sale had been entered into between the administrator and appellee for the purchase and that appellee had paid the sum of $100 in cash, the balance to be paid upon the approval of title and delivery of deed; that she knew that appellee was expending substantial sums of money in the repair and rehabilitation of the property and that at no time prior to June 1,1940, the date of the second hearing on the petition,- or a day or two prior thereto, did she advise any person who had any connection therewith that she had or claimed to have a homestead right in it; that appellee relied upon the statements of the widow, entered into the contract, made the down payment of $100 thereon and expended substantial sums of money on the repair thereof, and if deprived of it would suffer a substantial financial injury; that the conduct of the widow in representing to appellee, to other prospective purchasers, to the probate judge and to the administrator that the property should be sold by the administrator for the purpose of realizing funds with which to pay the debts of the estate and her failure to assert a homestead right or to select same, was inconsistent with the claim which she afterwards asserted on the second hearing on the petition that she had or claimed to have a homestead right in the property and if such claim of homestead right be not allowed it would result in substantial financial injury to the intervenor, appellee here. •
The court concluded as a matter of law that the conduct of the widow in representing the property to be for sale and her efforts to sell the property and her failure to assert a homestead right thereby caused appellee to act upon her representation that the property was for sale and to expend substantial sums of money in repairs and improvements on the property and the payment of $100 was so inconsistent with her later claim of homestead right that she had become estopped to assert her homestead rights thereon to the injury of appellee and the cause should be remanded to the probate court with directions to proceed with the sale of the real estate to appellee and on the payment of the balance of the purchase price an administrator’s deed be delivered to him.
After a motion for a new-trial was overruled a motion to set aside certain findings of fact and conclusions of law as made by the court was overruled and the judgment issued accordingly.
The burden of the argument of the appellant is that the evidence did not warrant the conclusion that the widow was estopped for the reason that the evidence did not show that she knew she had a homestead right before she permitted the contract to be made with appellee, and permitted him to enter on the real estate and to expend his money. There is very little question about the ultimate facts in this case. There can be no doubt that the widow caused proceedings to be instituted to sell the real estate for the payment of debts, and that she bargained with appellee about the sale price and knew that the $100 had been paid and extensive improvements on the property had been made. There can be no doubt that appellee acted in good faith.
The rule is laid down in Hazel v. Lyden, 51 Kan. 233, 32 Pac. 898, as follows:
“Where plaintiff’s real property was sold under an execution from a court having' no jurisdiction to issue the same, and by an officer having no authority to sell, but the purchaser at the sale acted in good faith, and paid the officer at the time of the sale all that it was reasonably worth, and the owner thereof, who was present at the sale, made no protest, but gave the purchaser quietly and without objection possession of the land, and received the proceeds thereof, and permitted .the purchaser and his grantees for nearly twelve years to occupy the land and make valuable improvements thereon, without objection, although living within two miles of the land, held!, that such owner, under the circumstances, is estopped from denying the title of the purchaser at the sale and from recovering the land, although at the time of the sale such owner did not know that the sale and the proceedings were void.” (Syl.)
The question of estoppel in a case of this kind depends a great deal on good conscience and common justice. It would not do for this court to say that a person who acted in good faith in spending his money to pay part of the purchase price and make the extensive improvements appellee made should lose all this just because the widow did not discover that she had a homestead right until after she had permitted all these things to be done. Such would be the result if we adopted the contention of the appellant.
The rule is stated at 50 A. L. R. 198, as follows:
“The doctrine that a widow may be estopped from claiming dower by failing to assert her right when the land of her deceased husband is offered for sale has been affirmed or taken for granted in numerous cases. In a portion of these cases the doctrine was applied with relation to evidence which showed that the widow who had .remained silent in regard to her rights knew that, under the explicitly declared terms of the sale, the property was to be conveyed free from all encumbrances. But there is no reason to suppose that the courts considered the presence of this element to be a condition precedent to the predication of an estoppel. It is manifest that in all the cases in which the claim of a widow for dower has been pronounced untenable on the ground of an estoppel it must have been assumed for the purpose of the decisions that she was chargeable with knowledge of her legal rights in respect of her husband’s property.” •
See, also, Adams v. Gilbert, 67 Kan. 273, 72 Pac. 769.
The judgment of the trial court is affirmed. | [
-47,
124,
-112,
124,
-102,
96,
58,
-120,
97,
-7,
-89,
87,
109,
-118,
20,
105,
99,
45,
65,
105,
71,
-77,
71,
-96,
116,
-6,
-109,
-35,
-72,
93,
100,
-41,
76,
32,
-62,
21,
-90,
-126,
71,
88,
14,
-57,
-119,
109,
-39,
66,
60,
43,
18,
12,
69,
-49,
-13,
44,
57,
-61,
40,
46,
91,
45,
80,
-8,
-69,
-99,
127,
7,
-109,
100,
-2,
-61,
72,
-118,
-112,
57,
8,
-24,
83,
38,
-106,
116,
79,
-101,
40,
102,
102,
34,
-99,
-17,
-8,
-104,
14,
-34,
-99,
-89,
-110,
88,
107,
32,
-74,
-104,
109,
-64,
7,
-10,
-26,
-100,
89,
108,
15,
-6,
-42,
-79,
-121,
120,
-119,
27,
-18,
-125,
49,
113,
-51,
-94,
92,
99,
55,
-101,
-114,
-8
] |
The opinion of the court was delivered by
Allen, J.:
This action was in the nature of a creditor’s bill to-set aside a certain alleged fraudulent conveyance and to subject-the property conveyed to the satisfaction of plaintiff’s claim. The appeal is from an order of the court in sustaining a demurrer to> plaintiff’s petition.
The petition alleged: On September 1, 1930, at Miami, Fla.,, C. E. Wardin and wife executed their note to L. P. Cartier for1 $11,500 due September 1, 1933, with 8 percent interest. The note; is undér seal and under the laws of Florida is governed by a twenty-year statute of limitations. Interest was paid to March 1, 1932,, and there was $19,856.67 due upon the note April 1, 1941.
C. E. Wardin and wife were residents of Florida at the time of the-execution of the note; L. P. Cartier was a resident of New York, and since that date none of the parties to the note have ever been, residents of Kansas.
On September 5, 1933, five days after the maturity of the note,. C. E. Wardin died, a resident of Florida, wholly insolvent, and. leaving no assets in Kansas. No administration has been had upon, his estate in Florida or Kansas.
On February 28, 1934, L. P. Cartier died testate, a resident of New York. The note in question was transferred to the plaintiff by the executrix of the estate of L. P. Cartier.
On March 24, 1933, C. E. Wardin, together with his wife, then being the owner of the Central Building in Topeka, Kan., conveyed that property to the Central Trust Company “as trustee under declaration of trust dated March 24, 1933,” by warranty deed subject to a $25,000 bonded indebtedness. The deed was recorded May 4, 1933, in the office of the register of deeds at Topeka.
The petition alleged that there was no consideration for the conveyance; that the conveyance was made for the purpose of defrauding the creditors of C. E. Wardin, and was taken by the defendant with full knowledge of the intent of C. E. Wardin;. that the conveyance rendered C. E. Wardin insolvent, and that the conveyance was designed to conceal the assets of C. E. Wardin and was taken by the defendant to assist in that design; that the fraud practiced by C. E. Wardin and wife and the defendant upon L. P. Cartier and other creditors of C. E. Wardin was unknown to L. P. Cartier, his executrix, successors and assign's, until discovered by the plaintiff in February, 1940.
The plaintiff prays that the conveyance be set aside as to the plaintiff; that the property be subjected to her claim and sold to satisfy it; that a receiver be appointed for the property,' and that the defendant be required to account for rents and profits and the plaintiff. be awarded other proper relief.
The question presented is whether the petition states a cause of action.
In Bank v. Ternes, 110 Kan. 475, 204 Pac. 699, the condition precedent to right to maintain a creditor’s bill is stated in the syllabus;
“It is a prerequisite to the maintenance of a creditor’s bill, in which it is asked that transfers of real estate be set aside as fraudulent and the property transferred be subjected to the payment of the plaintiff’s debt, that he shall have reduced his debt to judgment; and it is ordinarily necessary for him to show that execution has been returned unsatisfied or that the remedies afforded by law have been exhausted.”
Plaintiff admits the general rule to be that equity will refuse relief against a conveyance in fraud of creditors until the creditors have recovered a judgment at law establishing the debt, but asserts the rule has been modified as to the requirement of the return of an execution unsatisfied.
Our attention is called to Farmers State Bank v. Mitchell, 143 Kan. 286, 55 P. 2d 423, where it was ruled that it is not a prerequisite that execution be returned unsatisfied when the judgment is against the estate of a decedent, which estate is in process of administration as property in hands of the executrix could not be reached by execution. Plaintiff also refers to Achorn v. Parker, 145 Kan. 854, 67 P. 2d 561, where it was held that the fact an execution had not been returned unsatisfied was not a bar to an action by the creditor where it appeared the debtor was insolvent when the conveyance was made, and had remained insolvent.
It is not contended the uniform fraudulent conveyance act is in force in this state (see Uniform Laws, Annotated, Vol. 9, p. 327; American Surety Co. v. Conner, 251 N. Y. 1, 166 N. E. 783, 65 A. L. R. 244) or that we have an enabling statute permitting a creditor’s suit without judgment first obtained.
Plaintiff relies upon Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004; Kennedy v. Cresmell, 101 U. S. 641, 25 L. Ed. 1075, and cases from other jurisdictions where for special reasons the rule requiring a judgment as a prerequisite to the creditor’s bill has been relaxed. In the case at bar it is urged that the debtor died five days after the maturity of the obligation; that he was wholly insolvent; that proceedings of any sort would be futile if not impossible; that the fraudulent nature of the conveyance was not discovered until long after the time within which administration could have been forced by a creditor; that plaintiff does not now and never has had an adequate remedy at law.
We are unable to agree with the contention that plaintiff has never had an adequate remedy under the laws of this state. Under our statute G. S. 1935, 22-312, if the persons entitled to take out letters of administration within the time therein specified fail to do so, the court is directed to appoint one or more of the principal creditors to undertake the trust. In Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051, it was stated:
“Under the provisions of the statutes of this state, a creditor of a decedent, having a claim which he wishes to establish against the estate, may, if the widow or next of kin refuse to take out letters of administration, obtain letters for himself or some other person, after 50 days from the death of decedent; and he cannot, without any good cause or reason therefor, defer making such application until the statute of limitations has run, and then claim that all of the time from the death of the debtor to the appointment of the administrator the statute of limitations is suspended on account of the nonappointment of such administrator. If a creditor would save his claim against the estate of a decedent from the bar of the statute, he must exercise reasonable diligence, if the widow or next of kin refuse to take out letters of administration, to obtain administration for himself or some other person.” (Syl. ¶ 4.)
In Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, it was held:
“Where no administrator has been appointed the claim of a creditor will' become barred by the statute of limitations at the end of three years after the last date on which an administrator might have been appointed.” (Syl. If 3.)
See, also, Black v. Elliott, 63 Kan. 211, 65 Pac. 215; Clark v. Eaton, 109 Kan. 574, 201 Pac. 71.
The fact that the debtor was a nonresident at the time of his-death is immaterial. The Kansas statute of limitations fixes the-length of time the courts of Kansas are open to litigants. (Crow v. Hartzler, 103 Kan. 800, 176 Pac. 651.)
The present action is on a note which became due on September 1,, 1933. The maker of the note died September 5, 1933, and the‘present action was not commenced until March 31, 1941. Under G. S.. 1935, 22-702, all demands against the estate of persons deceased,, not exhibited as required by law within one year, are forever barréd. Under the rule announced in the cases above cited, the statute of‘ limitations begins to run against the creditor from the time the appointment of an administrator could have been made, whether the appointment is made or not. If Wardin had never executed the alleged fraudulent conveyance the claim of plaintiff would have been barred. Can it be urged that the conveyance, although fraudulent, would have placed the creditor in a more favorable position? It would seem clear that the claim sued on is barred by G. S.. 1935, 22-702.
Is the action barred by the provisions of G. S. 1935, 22-803? That section reads:
“The real estate liable to be sold as aforesaid shall include all that the deceased may have conveyed with intent to defraud his creditors, and all other-rights and interests in lands and tenements not exempt by law: Provided, That lands so fraudulently conveyed shall not be taken from any one who purchased them for a valuable consideration, in good faith, and without knowledge of the fraud; and no claim to the lands so fraudulently conveyed shall be made, unless within three years next after the decease of the grantor.”
The statute was construed in Barker v. Battey, 62 Kan. 584, 64 Pac. 75, where it was stated:
“. . . The statute does not expressly provide who may institute proceedings'to-set aside fraudulent conveyances so made. Doubtless it is within the power of the executor or administrator to bring a proceeding in equity for that purpose, but there is nothing in the statute, nor in reason, which would exclude a creditor from availing himself of the equitable remedy for his own protection. The creditor has the right to treat the fraudulent conveyance as void to the extent of his debt, and he alone could maintain such an action at common law. . . (p. 585.)
See Horton v. Jones, 110 Kan. 540, 204 Pac. 1001; Farmers State Bank v. Mitchell, 143 Kan. 286, 55 P. 2d 423.
Under G. S. 1935, 22-803, an action by the administrator to set aside a fraudulent conveyance made by the deceased must be brought within three years next after the death of the grantor. We know of no reason why the three-year period of limitation should not apply where the creditor elects to pursue the dilatory debtor by a proceeding in equity. It was the evident purpose of the statute to fix a period within which controversies and disputes as to the fraudulent conveyances made by a decedent in his lifetime should be brought to an end and beyond which courts will not lend their aid to litigants. We think the action was barred under section 22-803.
It is also insisted by defendant that the cause of action is barred by G. S. 1935, 60-306, third. Since the action is clearly barred for the reasons stated, we do not enter into that question.
The judgment is affirmed.
Hoch, J., not participating. | [
-10,
98,
88,
-68,
26,
-16,
42,
-70,
98,
-88,
39,
83,
-23,
66,
5,
109,
-10,
45,
85,
120,
-28,
-73,
7,
-55,
-46,
-77,
121,
-35,
53,
-35,
-28,
-41,
72,
48,
-54,
-107,
-58,
-64,
-57,
-36,
-50,
1,
-117,
-60,
-39,
40,
48,
-21,
20,
78,
81,
30,
-13,
34,
25,
67,
104,
44,
-21,
-83,
-48,
-80,
-85,
5,
127,
23,
1,
21,
-100,
7,
104,
14,
-104,
49,
0,
-24,
115,
-90,
-122,
84,
15,
-103,
8,
38,
98,
32,
85,
-17,
-88,
-120,
46,
-13,
-113,
-89,
-78,
88,
35,
32,
-42,
-99,
124,
16,
7,
-12,
-10,
21,
24,
108,
3,
-53,
-42,
-109,
42,
120,
-106,
27,
-2,
-127,
48,
97,
-49,
-32,
92,
71,
59,
27,
-114,
-79
] |
The opinion of the court was delivered by
Harvey, J.;
Earl Hill was charged with robbery in the first degree (G. S. 1935, 21-527). A jury trial resulted in a verdict of guilty, which was approved by the trial court. His motion for a new trial was overruled and he was duly sentenced to the state industrial reformatory. He has appealed and presents but one point for our consideration.
Appellant contends the trial court abused its discretion in permitting the cross-examination of the defendant to the extent that his substantial rights were prejudiced thereby.
Testifying in his own behalf, defendant answered questions asked him by his counsel as follows:
“Q. Now, the police took a picture of you one time, didn’t they, Earl? A. Yes.
“Q. And where was that picture taken? A. Over at the city jail.
“Q. And how did they happen to take that picture? A. Let me see. They got me for vag that time.
“Q. Were you ever charged with or convicted of any crime? A. No, sir.
“Q. You have never been, in your life? A. No, sir.
“Q. Did you ever have any other trouble besides that particular time? A. For contempt' of court once.
“Q. And you got in trouble once for stealing some grapes? A. Yes.
“Q. How long ago has that been? A. It has been about nine years ago.
“Q. But you were not arrested and charged with any crime any time? A. No, sir.’’
On cross-examination counsel for the state asked questions' which were ruled upon or answered as follows:
“Q. And Robert Hill did come to 1305 Monroe when you were there at about 1:30 in the morning and-asked you to come down stairs and carry in some coal, didn’t he, several lumps of it? (Defendant’s objection sustained.)
“Q. Well, did you ever carry in any stolen coal at 1305 Monroe, for your brother Robert? A. No.
“Q. Did you ever carry in any coal for your brother Robert at 1305 Monroe at about 1:30 in the morning? (Objection overruled.) A. No.
“Q. Do you recall talking to me at the city jail, March 1, 1941? A. Yes, I remember.
“Q. What did I talk to you about, Earl? A. About that coal.
“Q. Questioned about the coal, didn’t I? A. Yes.
“Q.. And questioned you about your brother, Robert? A. Yes.
“Q. I asked you about your brother Wilson Hill, too, didn’t I? A. No. ,
“Q. You say I didn’t? A. You didn’t.
“Q. Didn’t you, on that occasion, tell me that your brother Robert came there to the rock house at 1305 Monroe street at 1:30 in the morning, and that you carried in some coal out of his car? A. No.
“Q. Into the rock house? (Objection sustained.)”
It is well settled in. this state, as elsewhere, that when a defendant in a criminal case takes the witness stand on his own behalf he maybe cross-examined, within reasonable limits, respecting matters which affect his credibility as a witness. The extent to which such examination may go rests largely within the sound discretion of the trial court. Counsel for appellant recognize that rule, but argue that here the court permitted the cross-examination to go too far. The extent of such a cross-examination may be affected by the direct examination. When, as was done in this case, defendant and- his counsel place his reputation with respect to crime directly in issue and in such a way as to cover the wide field of any tipie or any offense, naturally the cross-examination. might be more extended than it would be otherwise. It is also well settled in this state that when such a witness by the cross-examination is asked about offenses other than the one on which he is being tried, and he denies any participation in such other offenses, or any guilt in connection with them, his denial stands as the proof of the fact that he had no such connection or guilt, unless by rebuttal evidence or in some way the state controverts those answers. Here nothing of that kind was done. See State v. Shanahan, 114 Kan. 212, 217 Pac. 309; State v. Winters, 120 Kan. 166, 241 Pac. 1083; State v. Pfeifer, 143 Kan. 536, 56 P. 2d 442, and authorities cited therein. In fact, reading the record before us of the direct examination and the cross-examina tion, we are inclined to the view that the triers of fact might form a more adverse opinion of the defendant from the direct examination than from the cross-examination. In any event, there is nothing in the cross-examination tending to show any abuse of the judicial discretion of the trial court.
We have examined the authorities cited by appellant and find, nothing in any of them that requires or would justify a reversal of the judgment of the trial court. Such judgment, therefore, is affirmed. | [
48,
-6,
-7,
-75,
11,
-30,
42,
-72,
64,
-93,
39,
114,
-87,
94,
0,
41,
-70,
127,
84,
113,
-36,
-73,
85,
1,
-6,
-5,
-5,
-108,
-73,
-53,
-26,
127,
12,
32,
-118,
85,
-26,
72,
-25,
80,
-114,
5,
-72,
-46,
-24,
16,
52,
57,
52,
11,
-15,
30,
-13,
46,
20,
-5,
73,
44,
75,
59,
80,
121,
12,
13,
-49,
4,
-77,
38,
-72,
-123,
-8,
46,
-103,
49,
-127,
-4,
115,
-90,
-122,
116,
111,
-103,
44,
98,
98,
0,
69,
-26,
-88,
-119,
47,
-85,
-115,
-89,
24,
64,
41,
100,
-74,
-97,
107,
112,
-90,
-4,
-17,
92,
95,
36,
45,
-49,
-76,
-109,
-49,
46,
-102,
-14,
-21,
49,
16,
117,
-51,
-78,
68,
101,
115,
-101,
-114,
-108
] |
The opinion of the court was delivered by
Allen, J.:
The appellant was the operating gas company of the Cities Service organization in the Kansas City area. Appellant objected to the disallowance of certain expenses listed as deductions from gross income in its state income tax returns for 1937 and 1938. After hearings before the director of revenue and before the commission of revenue and taxation, the gas company appealed to the district court of Wyandotte county. The district court affirmed the orders of the commission and the gas company has brought the case to this court for review.
In the district court the matter was heard largely on a stipulation of facts. In the taxpayer’s 1937 income tax statement a de duction of $30,120.20 from gross income was claimed for a management fee paid by the taxpayer to the Cities Service Company. This claimed deduction was disallowed by the commission and the district court. It appears from the1 record this fee had not been allowed as a deductible expense in prior years and the taxpayer had never before raised the question that it should be considered a proper deduction. The stipulation sets out the further pertinent facts concerning this claimed deduction as follows:
“That in its return for the year 1937, taxpayer deducted from its gross revenue as an operating expense the sum of $30,120.20, which was a management fee paid to Cities Service Company computed on a basis of 1% percent of its gross revenue, the same being a charge which had' been paid by the taxpayer either to Henry L. Doherty & Company or Cities Service Company since May, 1929.
“The commission disallowed this deduction for the following reasons, as stated in its order:
“ ‘The facts disclose and the commission finds that the taxpayer pays a management fee of one and three-fourths percent of its gross revenues to the Cities Service Company under a contract dated September 1, 1929.’
“The commission further finds that the New York management fees paid to the Cities Service Company were based upon a percentage of gross income and were computed without regard to actual services rendered. Such fees, therefore, do not constitute an ordinary and necessary business expense within the meaning of section 79-3206 (a), (1) General Statutes of Kansas Supplement, 1939, and are not an allowable deduction.”
The part of the statute involved, now appearing in G. S. 1941 Supp. 79-3206, reads:
“(a) In computing net income, there shall be allowed as deductions: (1) All the ordinary and necessary expenses paid during the taxable year in carrying on any trade or business. . ”
The regulation of the commission adopted under authority of statute reads:
“Art. 39. Compensation Paid for Personal Services. A reasonable allowance for salaries or other compensation paid for personal services actually rendered is deductible. The test of deductibility of such payments is whether they are reasonable consideration for the services rendered and whether they are in fact payments purely for service. If an ostensible salary paid by a corporation is in excess of those ordinarily paid for similar services and the excessive payments correspond 'or bear a close relationship to the stock holdings of the recipients, the excess deduction will be disallowed to the corporation .and taxed as a dividend to the recipient. ...”
The position of the gas company before the director of revenue and before the commission seems to have been that the commission had no authority to question either the reasonableness of this management fee or the good faith of the officers of the utility company in entering into the contract. No attempt was made before the commission or in the district court to show the value of any services rendered the taxpayer by the Cities Service Company or in fact that any services had been rendered.
In the district court attention of the court was directed to the cases of Wichita Gas Co. v. Public Service Comm., 126 Kan. 220, 268 Pac. 111; Wichita Gas Co. v. Public Service Commission, 3 F. Supp. 722; Wichita Gas Co. v. Public Service Commission, 2 F. Supp. 792. In these cases the above contract for management fees, as it pertained to other subsidiaries of the Cities Service organization was mentioned in connection with the fixing of gas rates. In some of these cases the fees- provided for by the contract had been considered in finding a proper base for the calculation of gas rates. Appellant’s contention seems to be that because the fees were taken into account in those cases in fixing gas rates, the commission cannot now disallow them in assessing appellant’s income tax. The appellant does not go so far as to contend that the question is res judicata, as of course it is not. The parties and issues in the former cases were different from those in this case. The court is of the opinion that nothing said in the above-mentioned cases has any real bearing upon the issues now before the court.
In Nutrena Mills, Inc., v. State Tax Comm., 150 Kan. 68, 91 P. 2d 15, a taxpayer claimed a deduction from its gross income for a management fee paid to a parent corporation. The fee in the Nutrena case had great similarity to the fee paid and set out in the case now under consideration. In the Nutrena case the taxpayer offered proof of the reasonableness of the fee. The commission allowed a deduction based upon only a part of the fee which had been paid. The same statutes and regulation of the commission were involved in the Nutrena case that are now under consideration in this case. On appeal this court affirmed the reasonableness of the commission’s order. As to the authority of the tax commission (now the commission of revenue and- taxation) to inquire into the propriety of expenses claimed as deductions from gross income, we said in.the Nutrena case:
“It is well settled that the tax found by the tax commission to be due is presumed to be valid; the taxpayer has the burden of showing its invalidity. (United States v. Reitmeyer, 11 F. 2d 648.) Deductions from gross income are allowed as a matter of legislative grace. A taxpayer seeking a deduction in computing taxable income must be able to point to an applicable statute and show that he comes within its terms. (White v. United States, 59 S. Ct. 179.) The fact the taxpayer has entered into a contract with stockholders, officers, or others to pay a fixed portion of its income for salary or other services does not, standing alone, make the amount paid under such a contract ‘ordinary and necessary expenses’ of conducting the trade or business. (Samuel Heath Co. v. United States, 2 F. Supp. 637; Hecht v. United States, 54 F. 2d 968; Traylor Engineering & Mfg. Co. v. Lederer, 271 Fed. 399; Moxa Building Co. v. Commissioner of Internal Revenue, 31 B. T. A. 457; affirmed, 79 F. 2d 1004.)
“Whether such payments are ordinary and necessary expenses of the business, and the reasonableness of the sums paid, are always open to inquiry. A variety of circumstances have been considered by the courts in the cases collected in American Digest System, Internal Revenue, Key No. 7 (17) (18). In some instances the deduction claimed was allowed, in others it was denied, depending on the facts shown. It would serve no useful purpose to cite and analyze these cases. We have examined all of them cited by counsel and many more. We find nothing in them which would require or justify the reversal of the judgment of the trial court in this case, and it is therefore affirmed.” (p. 75.)
The ruling in the Nutrena case is controlling as to the taxpayer’s contention concerning the management fee.
The remaining complaint of the taxpayer concerns the refusal of the commission to allow as a deduction from gross income the sum of $92,880 paid out by the taxpayer as interest on its bonds. This amount was claimed in both the income tax return filed by the gas company for 1937 and 1938. In denying the claimed deductions the commission made the following findings:
“The facts further disclose and the commission finds that the entire issue of 81,548,000 of 6 percent bonds upon which the interest in question was paid were owned in their entirety by the Cities Service Company, which company also owns the entire common stock of the taxpayer.
“The commission further finds that the interest paid to the parent company (Cities Service Company) was interest paid to the corporation stockholders, and was for money borrowed for the purpose of making expenditures of a capital nature, and such deduction is not allowable under section 79-3206 (a) (2), General Statutes of Kansas Supplement 1937, and article 42 of the regulations promulgated thereunder.”
The real question as to this phase of the case was before us in our recent decision in Natural Gas Pipe Line Co. v. Commission of Revenue and Taxation, ante, p. 416, 125 P. 2d 397. The opinion in that case had not been filed at the time appellant prepared its brief in this case. We are convinced there is no appreciable difference in the application of the provisions of the statute (G. S. 1941 Supp. 79-3206) to the two cases. The only real difference in the facts in the two cases is that in the Natural Gas Pipe Line case the bonds were issued directly to the stockholders and in this case it appears that the bonds in question were issued to the public but later the entire bond issue was acquired by the Cities Service Company which had also acquired the entire capital stock of the Wyandotte County Gas Company.
It is argued that if the interest on these bonds is held not to constitute a valid deduction then every corporation must change its accounting for income tax purposes each time a stockholder purchases some of the company’s bonds in the open market. It will not be necessary to decide the hypothetical case at this time. That is not this case. Here all the bonds and all the stock are in the hands of the same holder.
Appellant again objects that the deduction is disallowed purely on the ground of ownership and cites Mount Hope Cemetery Co. v. Pleasant, 139 Kan. 417, 32 P. 2d 500. The Mount Hope Cemetery case is fully discussed in the majority opinion in the Natural Pipe Line Company case (ante, p. 420).
There is no need to prolong this opinion. The judgment of the district court approving the orders of the commission was correct and is hereby affirmed. | [
-16,
-22,
-7,
92,
-104,
96,
42,
-102,
17,
-79,
-89,
87,
-55,
90,
4,
125,
-45,
61,
112,
96,
-57,
-73,
3,
74,
-106,
-5,
-7,
-43,
-71,
93,
-20,
-60,
76,
48,
74,
-107,
6,
66,
68,
-36,
-50,
0,
-87,
65,
-7,
0,
52,
104,
114,
11,
113,
-49,
-5,
40,
16,
-61,
-51,
44,
-3,
43,
-47,
-16,
-30,
-105,
127,
22,
48,
36,
-112,
-57,
-56,
40,
-104,
25,
96,
-24,
115,
-90,
70,
124,
39,
-71,
-87,
40,
98,
65,
53,
-21,
-20,
-116,
30,
-41,
-99,
-25,
-46,
88,
115,
-115,
-106,
29,
117,
86,
7,
126,
-12,
21,
-33,
108,
11,
-114,
-12,
-93,
15,
-27,
-106,
3,
-17,
-89,
0,
112,
-51,
-94,
92,
71,
58,
27,
-121,
-40
] |
The opinion of the court was delivered by
Thiele, J.:
This was a proceeding under the workmen’s compensation act. The compensation commissioner made an award in favor of the claimant, and on appeal the district court’ made a similar award. The respondent appeals to this court.
The only contentions presented are that under the evidence and under the facts as found by the trial court, the claimant at the time of his injury was engaged in work in furtherance of interstate commerce within the purview of the federal employers’ liability act, that the rights of the parties are not governed by the provisions of the workmen’s compensation act of Kansas, and that the commissioner and the district court on appeal, had no jurisdiction to make any award.
As has been stated, the hearing before the compensation commissioner resulted in an award in favor of the claimant. On the appeal, the district court made findings of fact and conclusions of law, which, so far as are here pertinent, are as follows:
During the middle of June, 1941, there was a flood along the Smoky Hill river between Salina and Solomon, Kan., and the respondent employed claimant as an emergency flood-control worker. Respondent had placed a large quantity of sand on a dock at Salina, and had placed flat cars near the dock. The duty required by respondent of claimant was to fill sandbags from the sand on the dock and to carry them to and place them on the flat car. In so doing claimant sustained an umbilical hernia. Respondent contended such bags of sand were necessary in order to preserve the interstate movement of its cars in interstate commerce, and claimant contended he had nothing to do with placing the bags at Solomon but only filling them at Salina, and nothing to do with their destination or use, and hence his work was too remotely connected with interstate transportation to make him subject to the federal act. After stating it agreed with claimant’s contention, the court further stated that such work as claimant did was very remotely connected, if connected at all, with interstate commerce, and that it was not shown the bags were to be used in connection with any car or engine which was moving or assisting in the movement of interstate commerce, and that it was not shown there was a train, passenger or freight, including the cars of each, which such bags of sand assisted in their interstate transportation, either of themselves or of goods being carried, and it was further concluded that the injury was covered and governed by the workmen’s compensation act of Kansas and not by the federal employers’' liability act. In accordance with its findings the district court made an award in favor of claimant. Later a supplemental finding was made that after the sand bags were loaded on the flat car, the car was to be moved by the respondent over its tracks some distance east where the bags were to be unloaded and placed along the interstate railroad track of respondent to remain there temporarily to protect the track from then existing flood-waters, and that interstate commerce moved along the railroad track where the bags were to be placed.
In a recent case where claim was made under the workmen’s compensation act, Krouse v. Lowden, 153 Kan. 181, 109 P. 2d 138, it was held:
“The issue of whether, in the light of established facts, such employee was subject at the time of such injury to the federal employers’ liability act is a question of law.” (Syl. ¶ 5.)
That case arose from an accident occurring in 1938, in which the claimant sustained injuries in alighting from a switch engine used to make up trains in intrastate and interstate commerce but which at the time the injury was sustained was standing on a track and being serviced'by the employee in performance of his duties as an “engine herder.” Reference to the opinion is made for a fuller statement of the facts. In that case it was held that where an employee of an interstate carrier is injured in the course of his employment, he is subject to the federal employers’ liability act if at the time of his injury he is engaged in interstate transportation or in work so closely related to it as to be practically a part of it, and that if a substantial part of his work is in interstate commerce,, he is subject to the federal act although part of his work may be intrastate in character. In that case a review is made of most of the cases relied upon by appellee in support of the trial court’s award, and they will not be further reviewed here.
We shall not pause to determine whether solely under the au-' thority of Krouse v. Lowden the judgment and award here under review should be reversed. In 1939 the congress amended the federal employers’ liability act (53 U. S. Stat. 1404, 45 U. S. C. A. 51, et seq.) to provide that any employee of a carrier whose duties as such shall be in furtherance of interstate commerce; or shall in any way directly or closely and substantially, affect such commerce, is within the act.
This court had occasion to consider the federal employers’ liability act as amended in Piggue v. Baldwin, 154 Kan. 707, 121 P. 2d 183. There the evidence showed the claimant’s husband had a general duty to clean up cinders, paper and anything else which got upon the railroad tracks and which if allowed to remain might hinder the use of the tracks by engines and cars, and at the time of his death the workman was removing a pile of cinders. In holding that the workman was then under the federal act, this court approved what was said in Krouse v. Lowden, supra, and reviewed decisions in which the act as amended was considered, and said:
“Under the amendment to the federal employers’ liability act any employee of a carrier, any part of whose duties shall be the furtherance of interstate commerce, or shall in any way directly or closely and substantially affect such commerce, is considered as employed by such carrier in interstate commerce and is entitled to the benefits of the act.” (1. c. 711.)
Briefly stated, the evidence in the instant case showed and the trial court found there was a flood along the Smoky Hill river; that the respondent placed sand on a dock and the workman placed the sand in bags and loaded the bags on a flat car which was to be moved over the track, used for the movements of interstate commerce, the bags to be placed along the track and to protect it from then existing floodwaters.
Certainly the injured workman did not participate in each and every step of putting the sand on the dock, putting it in bags, putting the bags on the flat car, and accompanying the car to the unloading place and putting the bags alongside the track, but what he did was a very necessary link in the chain. It appears that his work was in furtherance of interstate commerce and did directly, closely and substantially affect such commerce. The character of the work done by the claimant brought him under the federal employers’ liability act.
In both Krouse v. Lowden, supra, and Piggue v. Baldwin, supra, it was said that if the workman, at the time of his injury, was engaged in work which brought him under the federal employers’ liability act, then he could not maintain a proceeding under the workmen’s compensation act.
It follows from what has been said the judgment of the trial court must be reversed and judgment rendered for the appellant, and it is so ordered. | [
-48,
120,
-80,
29,
10,
-29,
42,
26,
81,
-75,
101,
83,
-23,
-49,
1,
123,
-25,
29,
-16,
43,
-13,
-89,
83,
-37,
-46,
-73,
-5,
-59,
-70,
91,
-12,
-58,
77,
16,
10,
-107,
-90,
-64,
85,
28,
-50,
4,
-120,
-31,
-39,
0,
52,
110,
-74,
75,
17,
-113,
-5,
42,
24,
-61,
-83,
44,
91,
42,
65,
-15,
-54,
7,
125,
16,
35,
4,
-98,
7,
88,
58,
-112,
49,
8,
-116,
82,
-90,
-126,
-11,
35,
-119,
12,
38,
99,
49,
21,
-49,
-20,
-104,
14,
-42,
-113,
-90,
-112,
24,
66,
9,
-105,
-99,
118,
22,
6,
126,
-2,
5,
95,
-83,
3,
-113,
-76,
-77,
-113,
100,
-123,
-117,
-49,
-127,
-73,
100,
-50,
-78,
92,
71,
122,
31,
31,
-104
] |
The opinion of the court was delivered by
Harvey, J.:
These were two actions in mandamus brought in the district court against the trustees of the Firemen’s Pension Fund and the directors of the Firemen’s Relief Association to require the payment of a pension to plaintiffs. In each case the trial court sustained defendants’ motion to quash the alternative writ, and the plaintiff has appealed. The actions raise the same legal questions, were consolidated in this court, and briefed and argued together.
In the Bulger case the motion for the writ and the writ alleged that plaintiff is the widow of C. E. Bulger, for twenty-six years a member of the fire department of the city of Hutchinson, who, when 62 years of age, was retired October 10, 1932, as being unfit for service on account of physical disability; that on the date of his retirement he applied to the directors of the Firemen’s Relief Association for a pension or retirement pay of $90 a month, being one-half of his salary, which was granted. He continued to receive this retirement pay until his death on April 12, 1941. That three days later the plaintiff, as his widow, applied to the trustees of the Firemen’s Pension Fund for a pension in the same amount; that this application was granted and she received the pay for one month, when it was discontinued and further payment refused by the trustees of the Firemen’s Pension Fund and the directors of the Firemen’s Relief Association. She alleged she was entitled to such pension. and prayed for a writ requiring defendants to restore her to the benefits of the pension fund.
In the Bennett case plaintiff alleged she is the widow of J. K. Bennett, a member of the fire department of Hutchinson from March 25, 1909, to June 1, 1933, on which date he was retired as being unfit for service because of physical disability; that on June 10, 1933, he applied to the directors of the Firemen’s Relief Association for a pension or retirement pay in the sum of $70 per month, being one-half of his salary; that the application was granted and he continued to receive such payments until his death, December 16, 1937; that soon thereafter the plaintiff, as his widow, applied to the trustees of the Firemen’s Pension Fund and was voted a pension in the sum of $70 per month, which she continued to receive until June, 1941, when such payments were discontinued. She alleged she was entitled under the statute to receive this sum, and prayed for a writ requiring defendants to restore her to the benefits of the pension fund.
• To determine whether plaintiffs are entitled to the relief sought it will be necessary to consider two groups of statutes. The first is G. S. 1935, 40-1701 to 40-1707, being article 17 of our insurance code and bearing the general title “Firemen’s Relief Fund.” By chapter 257, Laws 1941, all of these sections, except the first, were amended in several details, none of which it will be necessary to notice. Briefly stated, these sections require insurance companies doing business in the city to make reports and pay, through the insurance commissioner, two percent of all premiums on policies written on fire and lightning within the city “to the treasurer of the Firemen’s Relief Association of such city, said association to be composed of members of the fire department of such city and to be incorporated under the laws of this state.” This fund may be invested in designated securities and “shall be held in trust and used as a fund for the relief of any member of the fire department of such city when injured or physically disabled in or by reason of the discharge of his duties as such, and for the relief of or the payment of gratuities to the widow or those dependent upon any member of such fire department who may be killed in the discharge of his duties as fireman, or- who may die from the effect of injuries so received, or from disease contracted by reason of his duties as such, and for the payment of the necessary funeral expenses of any member of such fire department when killed in the discharge of his duties as fireman, or in the case of death resulting from the injuries so received or disease contracted by reason of his duties as such, or for the purchase of life, accident and health insurance upon the members of such fire department, and for the further purpose of paying a pension to members of full-paid fire departments who are unfit for service after having served for a period of not less than twenty years on the department, such pension not to exceed in amount one-half of the monthly salary at the date of retirement.” The pensions received by the husbands of plaintiffs were paid by the Firemen’s Relief Association out of the funds provided for by this statute. These statutes make no provision for the payment of a pension to the widow of a fireman who had been retired, paid a pension from the fund, and thereafter died. Counsel for appellants in this court do not seriously contend their clients are entitled to a pension from this fund.
The other statutes necessary to be considered are G. S. 1935, 13-758 to 13-767. These sections, as originally enacted (Laws 1935, ch. 119, effective May 15, 1935), authorized the municipal authorities to create a firemen’s pension fund, and by chapter 128, Laws 1937, effective June 30, 1937, this was made mandatory. The trustees of the fund consist of the mayor, the chief officer of the fire department, and two delegates at large from the fire department. Sections 13-762 and 13-766 were further amended by chapters 124 and 125, Laws 1941; one provision of it will be noted later. By these statutes the fund is created by a tax levy upon all the taxable property within the city and by small payments required by members of the department. The statute provides that any member of the fire department who, while engaged in the performance of his duties as a fireman, is permanently disabled and upon examination by a physician or physicians appointed by the board of trustees and paid by them, be found to be physically or mentally disabled as a result of such permanent injuries or disability so as to render him unfit for his duties as a fireman, shall be entitled to be retired and to be paid the sum monthly of one-half of his monthly salary:
“Or any officer or member of the fire department more than fifty years of age, and having served twenty years, or more, in such fire department, of which the last two years shall have been continuous, or has been retired because of disability, may make application to the board of trustees to be placed on the pension list and, upon such application being granted, the board of trustees shall pay monthly to such member so retired a sum equal to fifty percent of the salary or wages such officer or member was receiving at the time of his retirement or disability, and in the event of the death of such officer or member of the fire department either while in service or while retired, leaving surviving him a widow, such monthly payment which such retired officer or member was receiving or would be entitled to at the time of his death shall be paid to her during the remainder of her life, in the same manner as it was paid to such deceased officer' or member of the fire department during his retirement. Provided, That any widow of any officer or member of the fire department who shall become entitled to the pension under the provisions of this act shall be the wife of said pensioner at the time he is pensioned, or at the time he is killed in service, and she shall forfeit all her rights under this act in case she remarries.” (Laws 1941, ch. 124, § 1.)
The first legal question necessary to be determined is whether the statutes last referred to (G. S. 1935,13-758 to 13-767) are applicable to appellants; or, indeed, whether they would have been applicable to their husbands had they applied for a pension under those statutes. It will be noted that the statute- was first effective in its per missive form on May 15, 1935, and its mandatory form on June 30, 1937. The record does not disclose whether the city of Hutchinson acted under the earlier of these statutes, or under the later ones. In any event, the earliest date the statutes were effective to the city of Hutchinson was on May 15, 1935. The husband of each of the appellants had been retired from the fire department prior to that date—Bulger on October 10, 1932, and Bennett on June 1, 1933. Neither of them had applied for a pension under these statutes. Their- applications had been made to the Firemen's Relief Association and their pensions had been paid under G. S. 1935, 40-1701 to 40-1707. The general rule is that a statute is operative only in the future from the time it is enacted and made effective; that it has no retroactive effect unless the language of the statute clearly indicates the legislature so intended it. (Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028; State, ex rel., v. Public Service Comm., 135 Kan. 491, 11 P. 2d 999; International Mortgage Trust Co. v. Henry, 139 Kan. 154, 30 Pac. 311; State, ex rel., v. Good, 142 Kan. 434, 49 P. 2d 633, and authorities there cited.) We find nothing in the statute (G. S. 1935, 13-758 to 13-767) which clearly indicates that it was to be effective with respect to firemen who had been retired prior to its effective date. Appellants point to the language in G. S. 1935, 13-762, “or has been retired because of disability,” and argue that the use of this language indicates the legislature intended to have the statute available to any and all firemen who had been retired at any time before the effective date of the statute. We deem this construction of the language untenable, for it was followed by the language, “may make application to the board of trustees to be placed on the pension list and, upon such application being granted, the board of trustees shall pay,” etc. As previously stated, neither Bulger nor Bennett made such an application to the trustees of this fund, and the fund clearly was one to be raised in the future. It is quite possible that on the effective date of this act there may have been a number of persons living who at some time in the past had been retired as firemen, and that the payment of pensions to all such persons would aggregate a substantial sum. Certainly the legislature, by the use of the language relied upon by appellants, did not contemplate that all persons then living, who at any time in the past had been retired as firemen, should be entitled to the benefits of the fund.
Counsel for appellants argue that the statutes relating to these two funds providing for pensions for firemen (G. S. 1935, 40-1701 to 40-1707, and 13-758 to 13-767) should be construed together as though they constitute one enactment. This view is prohibited by G. S. 1935, 13-767, which makes it clear that the sections, 13-758 to 13-766, constitute an independent act which does not repeal or amend any other statute relating to firemen’s pensions. Decisions from other states cited by appellants, holding certain statutes of the respective states relating to pensions for city officers or employees should be construed together, necessarily interpret the statutes of those particular states. They are not applicable here in view of the section of our statute last referred to. It is argued on appellants’ behalf that to construe these statutes separately would result in making it possible for retired firemen to receive a pension from each of the funds. While our tentative notion is this point is not well taken, the record before us does not present a case in which we are called upon to decide it, and nothing said in this opinion should be so construed. Our conclusion is that G. S. 1935,13-758 to 13-767, were never designed to have retroactive application, and that they were not available to the husbands of appellants, who had retired prior to the effective date of the statute, and of necessity are not available to appellants.
Appellants call our attention to chapter 124, Laws 1941, amending G. S'. 1935,13-762, which added this proviso:
“That any employee or officer of such fire department who has been retired under the provisions of .sections 40-1701 to 40-1707, both sections inclusive, of the General Statutes of 1935 and amendments thereto, may, when the board of trustees of the firemen’s pension fund deem it advisable, be' transferred and pensioned under the firemen’s pension fund and receive the benefits thereunder as provided by law.”
We first note that this proviso refers to retired firemen, not to their widows. But what is more important, so far as these cases are concerned, the action of the trustees of the Firemen’s Pension Fund under this proviso is discretionary with them. Discretionary duties of officials cannot be commanded by mandamus in the absence of a showing of fraud or other misconduct of such officials, none of which is alleged or claimed to exist here. (See Bohan v. Sumner County Comm’rs, 131 Kan. 87, 91, 289 Pac. 436, and authorities there cited.)
While some other questions are argued, in view of our conclusions above stated it will not be necessary to consider them.
The judgment of the court below is affirmed. | [
112,
126,
-40,
-34,
10,
-32,
10,
-70,
115,
-69,
-89,
119,
-23,
25,
1,
103,
-38,
61,
85,
107,
-41,
-77,
23,
104,
-46,
-13,
-7,
-59,
-79,
94,
-10,
-42,
72,
52,
2,
-43,
-26,
-126,
69,
84,
-114,
-123,
-21,
-31,
89,
64,
48,
115,
116,
15,
49,
-34,
-13,
40,
24,
114,
8,
44,
91,
-87,
80,
-77,
-117,
-115,
-33,
17,
-93,
38,
-100,
71,
-16,
62,
-104,
49,
0,
-24,
114,
-90,
-122,
116,
127,
-119,
44,
98,
98,
1,
-27,
-83,
-72,
-120,
30,
-109,
-113,
-90,
-78,
57,
42,
32,
-108,
-103,
124,
20,
7,
118,
-9,
-107,
95,
108,
-119,
-113,
-92,
-79,
-53,
124,
-98,
-101,
-21,
49,
36,
117,
-120,
-94,
92,
103,
122,
57,
-81,
-104
] |
The opinion of the court was delivered by
Wedell, J.:
This was a suit to quiet title. Judgment was for the defendants, and plaintiff appeals.
The subject of the action was a quarter section of land in King-man county. The only parties interested in the land are the plaintiff and two minor defendants. Fred Hurd was appointed guardian ad litem and also as attorney for the defendants by the district court. Appellant is the assignee of the tax-title purchaser. He based his title upon a tax deed executed by the county clerk on October 30, 1935, which was recorded on the same day. It is conceded appellant and the tax-title purchaser had been in the actual possession of the land for more than five years before the instant action was filed. The trial court concluded the tax deed was void upon its face for a number of reasons.
Appellant contends first the deed was valid on its face, and second that he was entitled to have the title quieted even though the deed was void on its face.
Was the deed void on its face? The deed in substance disclosed: The land could not be sold for the 1930 taxes and charges and was on September 1, 1931, bid off by the county for the taxes, interest and costs then due and unpaid; the sum of $283.57 was equal to the cost of redemption on October 30, 1935, and that amount having been paid by E. A. Haines to the county treasurer, the county clerk issued a certificate of sale and duly assigned the certificate and all interest of the county in the land to E. A. Haines on October 30, 1935; that in consideration of the sum of $283.57 paid to the county treasurer for taxes, costs and interest due on the land for the years 1930, 1931, 1932, 1933 and 1934, the county clerk on October 30, 1935, sold the land to E. A. Haines.
One of the grounds upon which the trial court found the deed to be void on its face was that it was clearly executed in contravention of the 1935 moratorium law. That law, chapter 307, Laws 1935, became effective February 25, 1935. The pertinent section thereof provides:
“That with respect to all lands bid off for taxes in the name of the county at the tax sale of September, 1934, or prior years and now held by said county, there is hereby remitted and canceled for the benefit of the owner or the holder of the record title of said land, his heirs, executors, administrators, assigns or mortgagee, all penalties, costs, expenses and interest, charged or chargeable against said land and the improvements thereon, by reason of the nonpayment of taxes thereon, and said owner, holder of record title, his heirs, executors, administrators, assigns, or mortgagee, desiring to redeem said land on or before March'1, 1937,-shall not be called upon or required to pay any of the said penalties, costs, expenses or interest now charged or chargeable against said land or the improvements thereon: Provided, That interest at the rate of 6 percent per annum on the amount of taxes due and unpaid on said land, exclusive of the penalties, costs, expenses and interest above remitted, shall be charged commencing September 1, 1935: Provided further, That any such lands not redeemed on or before March 1, 1937, shall become subject to all penalties, expenses, costs and interest chargeable the same as though this act had not been passed:” (G. S. 1935, 79-2415.) (Emphasis supplied.)
It would thus appear the owner might at any time, on or before March 1, 1937, redeem the land without the payment of penalties, costs, expenses or interest, except the payment of interest at the rate of 6 percent from September 1, 1935. Here, however, the tax deed was executed by the county prior to March 1, 1937, the date on which redemption might have been made, and interest on taxes was charged prior to September 1,1935.
Appellant, however, insists that since the 1934 taxes were not paid when due, defendants were not entitled to the remission of interest under another proviso of the same statute, which reads:
“Provided further, That no owner, holder of record title, his heirs, executors, administrators, assigns, or mortgagee, shall be entitled to have the said penalties, costs, expenses and interest remitted and canceled unless all taxes and interest for the year 1934, then in default, have been paid, and unless all taxes and interest, accruing subsequent to 1934, and then in default, have been paid before the payment of said delinquent taxes:” (G. 8. 1935, 79-2415.)
To what date do the words in the last proviso, namely—“then in default”—refer? We think they refer to the date upon which redemption might have been made, namely, March 1, 1937. In support of appellant’s contention with respect to the payment of the 1934 taxes and interest he cites Iola B. & L. Ass’n v. Allen County Comm’rs, 152 Kan. 365, 103 P. 2d 788. That case involved an interpretation of the 1939 tax moratorium law with respect to the payment of the 1938 taxes. The provisions of the 1939 law, with respect to the point involved, clearly were not the same as those contained in the 1935 law and the decision is not in point.
Appellant further urges that since the right of minors to redeem was cut off by chapter 375 of the Laws 1941, and since redemption has not yet been made, it becomes immaterial whether the tax deed was void when executed. With that contention the trial court did not agree, and neither do we. The tax deed was either void or it was not at the time it was executed. It was void when executed and subsequent failure to redeem did not give validity to the deed at the time it was executed or thereafter. It was a nullity and that fact appeared on its face. The case of Dieterich v. Knox, 143 Kan. 698, 56 P. 2d 65, is in point on the principle here involved. It was there held:
“A tax deed in ‘compromise payment form,’ such as R. S. 1933 Supp. 79-2411 purports to authorize, executed the day the certificate is issued and assigned, is void on its face.
“A tax deed executed September 4, 1934, upon a sale had September 2, 1930, which includes interest and fees, is void on its face, since chapter 120 of the Laws of 1933 Special Session gives the owner of the real property to January 1, 1935, in which to pay the taxes, without the payment of interest, fees or other charges.” (Syl. Jill 1, 2.)
Was appellant entitled to have the title quieted notwithstanding the fact the deed was void on its face? He argues he was and relies upon the general quiet-title statute (G. S. 1935, 60-1801), and particularly upon G. S. 1935, 60-1804, which latter statute reads:
“A tax de'ed of record for more than five years prior to the commencement of such action shall be a sufficient title upon which to maintain the action: Provided, That the plaintiff or those through whom he derives title shall have been in actual possession of the property covered by such tax deed for five years just prior to the commencement of such action.”
Appellant argues the statute does not make it a condition precedent to his right to maintain the action that the deed should be valid on its face. He argues it requires only two things, namely, the recording of the tax deed and possession of the land thereafter for a period of five years prior to the commencement of the action. He emphasizes the use of the word “maintain,” employed in the statute, as distinguished from the word “file” or “institute,” and argues it was the intent and purpose of the lawmakers to enable a tax purchaser to have his title quieted whenever the two conditions named in the statute existed, irrespective of the fact a deed might be utterly void on its face. He cites Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 720; Wilson v. Glenn, 121 Kan. 467, 254 Pac. 694, and Main v. Doty, 126 Kan. 667, 271 Pac. 287, as bearing upon the issue, but frankly concedes those cases do not settle the issue here presented. He árgues that G. S. 1935, 60-1804, was enacted in 1911, long after the general quiet-title law, G. S. 1935, 60-1801, and therefore urges it must have been enacted with the intent and purpose for which he contends. He insists that otherwise G. S. 1935, 60-1804, is meaningless. That statute, as heretofore disclosed, authorizes a quiet-title action by a tax deed purchaser or those claiming title through him. G. S. 1935, 79-2505, enacted in 1876, pertains to an action by the landowner to set aside a tax deed. The latter statute provides:
“Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
These statutes must be read and construed together. In referring to G. S. 1935, 79-2505, in the case of Bryner v. Fernetti, 141 Kan. 446, 41 P. 2d 712, we said:
“There is a consistency between this section and R. S. 60-1804 in that the landowner has five years in which to commence an action to set aside the tax deed on his land, .and by the other statute the holder of the tax deed cannot commence his action to quiet his tax title before his tax deed has been on record for five years:” (p. 450.)
It expressly has been held the five-year period of limitation prescribed in G. S. 1935, 79-2505, does not operate in favor of a tax deed that is void upon its face. In Madigan v. Smith, 137 Kan. 269, 20 P. 2d 825, it was said:
“Appellants first cite R. S. 79-2503 and 79-2505 and a number of Kansas decisions prescribing and holding that an action to defeat and avoid a conveyance of land for taxes ,is barred if not commenced within five years from the time of the recording of the tax deed. These statutes and decisions have reference to defects, irregularities and omissions in the tax proceedings which may render the tax deed voidable, but they do not apply or control where the tax deed is void on its face. Actions to set aside tax deeds as void on their face are not barred by the five-year statute of limitations. (Richards v. Thompson, 43 Kan. 209, 23 Pac. 106, and Doudna v. Harlan, 45 Kan. 484, 25 Pac. 883.)” (p. 270.)
Neither do we think the lawmakers intended the provisions of G. S. 1935, 60-1804, should apply or control where the deed is void on its face. It would not do to say the fact the deed is void on its face constitutes a cause of action upon which the landowner may have the deed set aside even five years after it has been recorded by the tax purchaser and he has been in possession of the land for more than five years, but that the same fact, namely, that the deed is void on its face, does not constitute a defense to a quiet-title action brought by the tax purchaser or his assignee. The existence of the condition specified in the statute (G. S. 1935, 60-1804), is a condition precedent to the right to maintain a quiet-title action, but the fact of their existence was not intended to preclude a defense by the landowner that the deed is void on its face.
In view of what has been said it is unnecessary to discuss other grounds upon which the trial court found the deed to be void on its face. We may, however, say that the reason herein treated is, in our opinion, only one of the grounds upon which the deed was void on its face.
The judgment is affirmed. | [
-12,
-2,
-44,
12,
43,
-64,
10,
-103,
75,
37,
-89,
83,
107,
18,
4,
57,
-77,
61,
117,
104,
71,
-77,
19,
-93,
-78,
-109,
-39,
-51,
-75,
77,
-26,
-105,
12,
32,
66,
21,
-26,
-126,
-59,
24,
-58,
-122,
43,
92,
-37,
64,
52,
79,
80,
77,
117,
-114,
-13,
46,
20,
-53,
104,
46,
75,
11,
81,
-71,
-66,
-123,
127,
6,
49,
0,
-104,
-63,
104,
-86,
-104,
49,
-104,
-8,
59,
54,
-106,
116,
13,
27,
40,
54,
38,
65,
69,
-1,
-8,
-104,
14,
-2,
13,
-92,
-62,
88,
42,
9,
-73,
29,
125,
16,
70,
-12,
-18,
-60,
93,
108,
15,
-49,
-42,
-109,
-113,
-72,
-120,
11,
-31,
-95,
48,
113,
-49,
-30,
92,
103,
56,
59,
15,
-48
] |
The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in which the plaintiff city seeks a peremptory writ of mandamus against the defendant city clerk to compel him to register bonds of the, city issued under the provisions of Laws 1917, chapter 87, as amended, and now appearing as G. S. 1935,12-635 to 12-646, inclusive.
So far as is here necessary to note the plaintiff’s motion for the wrii alleged the plaintiff is a city of the second class and that the governing body of the city had passed the resolution required by G. S. 1935, 12-636, and subsequent thereto had performed all other things requisite for completion of work under G. S. 1935, 12-635 et seq.; that the city is required to issue bonds in order to pay for the work; that the city has heretofore, for other purposes, issued general obligation bonds to maximum amount otherwise permitted .by law and that the bonds are outstanding and constitute valid bonded indebtedness of the city; that the defendant city clerk was directed to make preparations for and to register the bonds as required by G. S. 1935, 10-107, and that he refused for the asserted reason the issuance and registration of the bonds would be in violation of G. S. 1935, 14-408 and 10-303; that the refusal of the city clerk is wrongful; that G. S. 1935, 12-635 to 12-646, inclusive, is an emergency act and authorizes the governing body to issue bonds in excess of the limitations otherwise placed upon it by G. S. 1935, 14-408 and 10-303 and all other limiting statutes, particularly because of G. S. 1935, 12-646, as said section is paramount and supersedes all bond-limiting statutes, and that the legislature has made it possible for cities in the event of emergencies, as prescribed by G. S. 1935, 12-635 et seq., to protect property although to do so might place the bonded indebtedness in excess of limiting provisions in ordinary circumstances. The prayer is omitted.
The defendant has filed a motion to quash, urging as a matter of law that plaintiff’s motion should be denied because the city’s bonded indebtedness now equals the limit of bonded indebtedness for such city under G. S. 1935, 10-303, and it would be unlawful for defendant to- register the bonds. There is no issue concerning regularity of the proceedings leading up to the issuance of the bonds.
It is here noted that plaintiff’s motion does not disclose the amount of the proposed bond issue, the city’s assessed value of all taxable property within the city, or the amount of its present bonded indebtedness ; but on oral argument it was admitted the proposed bond issue, taken in conjunction with the present outstanding bonded indebtedness, would exceed twenty-five percent of the assessed value of all the taxable property within the city.
Under the pleadings the principal issue is whether the proposed bond issue is in violation of G. S. 1935,10-303, or whether by reason of G. S. 1935, 12-646, it is not subject to the limitation of the first-mentioned section.
Plaintiff’s characterization of the act under which the bonds are to issue as an emergency act or as one providing relief from an emergency is not accurate. Under the act any city near where there is, or through which there flows a non-navigable natural watercourse, is authorized to exercise the right of condemnation and to construct drains, canals or artificial watercourses or to perform other specified works to protect the city and public and private property, under procedure outlined in the statute. Right to exercise the powers granted is not contingent on any emergency-—perhaps it might better be said the powers granted are to be exercised to prevent damages should an emergency arise.
When Laws 1917, chapter 87, was originally enacted, it was provided by section 10 thereof that the city might issue internal improvement bonds to pay the costs of the improvement, the credit of the city being pledged for their payment. By section 11, it was provided the bonds should be paid “by the levy of a general tax.” In the revision of 1923, section 10 was revised to conform to the general bond law now appearing as G. S. 1935, chapter 10, article 1. Thereafter section 11 was amended by Laws 1927, chapter 99, to make provision for special benefits, etc., and it was provided the'remaining cost shall be assessed against the city generally and the bonds shall be paid “by the levy of a general tax on all the taxable property in said city.”
Section 12 of the original act (G. S. 1935, 12-646), although slightly revised in 1923, has never been amended, and now reads as follows:
“That bonds issued under this act shall not be included in fixing the limit of bonded indebtedness of cities of the second class, as provided in Laws of 1911, chapter 109, section 1 (14-408).”
When the above act was passed in 1917 there were at least two statutes limiting the bonded indebtedness of cities of the second class. One of these statutes was originally enacted in 1871, and was last amended by Laws 1911, chapter 109. It was slightly changed by the revision of 1923, and now appears as G. S. 1935,14-408. The changes made do not affect the problem before us. This statute is the one referred to in the 1917 act heretofore mentioned. The other statute is not mentioned in the 1917 act. It was originally enacted as Laws 1913, chapter 126. Section 1 made provision for limitation, and contained a proviso as to bonds already issued. Section 2 repealed all laws or parts of laws in conflict and section 3 provided when it should take effect. Section 1 was amended by Laws 1920, chapter 22, the amending act repeating verbatim all of section 1 of the amended act except the proviso, and adding two further provisions. This section has never been amended, and now appears as G. S. 1935,10-303, and reads:
“At no time shall all the bonded indebtedness of any city of the second or third class for all purposes, exceed fifteen percent of the assessed value of all the taxable property within such city as shown by the assessment books of the year next previous to the one in which a new issue of bonds is proposed to be made: Provided, That bonds issued to pay the cost of improvements for which a special tax is levied upon the property improved and bonds issued to pay the cost of improvement of intersections of streets, alleys and avenues, and that portion of the street immediately in front of city property, and bonds issued for general sewers, shall not be included in estimating said bonded indebtedness: Provided further, That the total bonded indebtedness of any such city for all purposes shall at no time exceed twenty-five percent of the assessed value of all the taxable property within such city as shown by the assessment books of the year previous to the one in which a new issue of bonds is proposed to be made.”
As the above history discloses, the several acts mentioned confer power or place limits with respect to the bonded indebtedness of a city of the second class and are to be considered as in pan materia, in the solution of the problem presented. (Clark v. Murray, 141 Kan. 533, 537, 41 P. 2d 1042.)
• We first note the contention of the defendant that G. S. 1935, 12-646, quoted above, does not authorize an issue of bonds in excess of the limitations set in G. S. 1935,14-408 or 10-303, but only provides they shall not be counted thereafter in determining the amount of outstanding bonded indebtedness. We think the language used is not susceptible of such an interpretation or construction. Perhaps the section could have been more clearly stated. It appears, however, that authority to issue the bonds is granted by section 10, to which reference has been made. Unless some provision were made to the contrary, the amount of indebtedness to be created would be subject to the limiting acts to which reference has been .made. To avoid that result, the legislature enacted the section, under discussion. We think it refers clearly to a present situation, and that the legislative intention was that the bonds then being issued should not be included in determining whether the limit of bonded indebtedness was then being exceeded.
The history of the acts under consideration shows that each was included in the revision of the statutes made in 1923, and that if there were inconsistencies or irreconcilable provisions, they were carried forward into the Revised Statutes of 1923, and except as subsequently amended, are now included in the General Statutes of 1935.
It is the recognized rule that where successive acts of the legislature covering the same subject are in conflict with each other, the conflicts .shall be resolved and both acts given effect, if possible, but if they are not reconcilable, the last expression of the legislature prevails, and this is true notwithstanding the conflicting acts were carried forward into an 'official revision and codification enacted by the legislature. (Iola B. & L. Ass’n v. Allen County Comm’rs, 152 Kan. 365, 103 P. 2d 788; State, ex rel., v. Moore, 154 Kan. 193, 117 P. 2d 598; Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; and cases cited in each.)
We take up first the limitation prescribed by Laws 1911, chapter 109, G. S. 1935,14-408. By the express terms of Laws 1917, chapter 87, section 12, G. S. 1935, 12-646, the bonds issued under it are not subject to the limitations of the first act, and it need not be noticed further.
The effect of Laws 1920, chapter 22, G. S. 1935, 10-303, may not be disposed of/so readily. We have heretofore directed attention to the fact that this act was an amendment of Laws 1913, chapter 126, the provisions of which were included in the amending act. Among the rules for statutory construction enacted by the legislature is the last sentence of G. S. 1935, 77-201, first, reciting:
“The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
Time and space do not permit a review of our many decisions treating of the rule so expressed. See the annotations to the statute. Under the above rule there can be no question that the portion of G. S. 1935,10-303, preceding the first “provided” must be held to be a continuation of the 1913 act and not a new enactment, and standing alone it could not have the effect of limiting the amount of bonds issued under the 1917 act. But of what effect are the two provisos? Under the first part of the act the bonded indebtedness “for all purposes” is limited ito fifteen percent. Under the first proviso, certain types'of bonds, later referred to, shall not be included in estimating the bonded indebtedness, and then follows the second proviso that the “total bonded indebtedness ... for a-11 purposes shall'at no time exceed twenty-five percent.” As we read the statute, it provides that the general bonded indebtedness may not exceed fifteen percent and, in determining the amount, the bonds specified in the first proviso shall not be included, but that the total of both may not exceed twenty-five percent. By subtraction the amount of bonds covered by the first proviso may not exceed ten percent if the general limit of fifteen percent has been reached. It is to be noted, however, that the classes of bonds included in the second proviso do not include bonds issued under the act of 1917 for, as has been shown heretofore, the bonds are not of a type where a special tax is levied upon the property improved,' nor for street improvements nor for general sewers. The bonds involved are not covered by the first part of the limiting act, for it is merely a continuance of prior legislation ; they are not included in, the classes of bonds mentioned in the first proviso, and the second proviso refers only to the total of the two groups. The limiting act contains no provision, amending or repealing section 12 of the 1917 act, and by reason of its terms may not be said to repeal that section by implication.
When the legislature in 1920 enacted the limiting act, it took notice of G. S. 1935, 77-201, first, quoted above, and knew that the first portion of the limiting act would not affect bonds issued under the 1917 act, it did not include the latter class of bonds in the two provisos, and it must be concluded the intent was not to place a limitation on bonds to be issued under the provisions of the act of 1917. As bearing on the question see State, ex rel., v. Kansas City, 83 Kan. 431, 111 Pac. 493; State, ex rel., v. Robb, 143 Kan. 527, 55 P. 2d 815.
Our conclusion is that plaintiff is entitled, to judgment, but for the reason the defendant’s refusal to act was because he questioned his authority under the law and was not arbitrary, we will not issue a formal writ at this time and no costs will be imposed. (See Stevens v. McDowell, 151 Kan. 316, 323, 98 P. 2d 123.) It i& so ordered. | [
-12,
104,
112,
110,
-54,
96,
8,
-102,
-37,
-95,
-89,
115,
-83,
-54,
4,
41,
-21,
125,
116,
123,
69,
-14,
39,
107,
-14,
-109,
-29,
-43,
-77,
-49,
-10,
85,
76,
48,
74,
-107,
-26,
-118,
-59,
30,
-50,
-91,
-117,
-27,
-37,
64,
52,
123,
96,
9,
117,
14,
-29,
40,
24,
99,
-19,
44,
-39,
1,
-64,
-7,
-119,
-123,
125,
7,
-125,
84,
-100,
-123,
-64,
22,
-104,
49,
-107,
-24,
112,
-90,
-122,
-10,
109,
27,
40,
98,
102,
0,
-27,
-19,
-48,
-120,
14,
-46,
-115,
-90,
-109,
120,
42,
32,
-106,
-67,
117,
16,
7,
126,
-18,
21,
91,
108,
15,
-114,
-26,
-77,
-113,
-12,
-120,
3,
-58,
33,
16,
113,
-50,
48,
94,
103,
27,
-37,
15,
-116
] |
The opinion of the court was delivered by
Thiele, J.:
This was an action in replevin to recover possession, of a Buick automobile, and from, a judgment denying it relief the plaintiff appeals. In our consideration of the appeal we shall refer to plaintiff as the corporation, to the defendant as the bank, to the automobile as the car, and to each of the several chattel mortgages-as mortgage.
Before stating the issues disclosed by the pleadings, we note the-following facts which either were alleged in the pleadings or shown by the evidence, and which are not in dispute,
The corporation was engaged in business in Kansas City, Mo.,, loaning money on automobiles. On April 4, 1989, one H. S. Moncrieff, who was not made a party to the action, and who was then a resident of Kansas City, Mo., purchased the car, and to provide-funds for its purchase executed and delivered to the corporation his promissory note secured by a mortgage on the car. This mortgage was duly filed in the office of the recorder of Jackson county, Missouri, on April 6, 1939. This mortgage described Moncrieff as a resident of Jackson county, Missouri, and it contained, among; others, the usual provisions that if default be made in payment or if the mortgagor removed the property from the county, or if the mortgagee deemed itself insecure, the mortgagee might take the-, property into its possession.
In August, 1939, Moncrieff moved to Yates Center, in Woodson county, Kansas, where he became engaged in the retail shoe business. On June 3, 1940, he applied to the bank for a loan on his-car, representing it was free of encumbrance. The bank searched the records of Woodson county, and finding no mortgages against, the car, made Moncrieff a loan secured by a mortgage on the car,, the mortgage being duly filed in the office of the- register of deeds, of Woodson county on June 18, 1940.
About October 4, 1940, Moncrieff was in arrears to the corporation and at its request he went to Kansas City and on that date executed a new note for the balance then due, and a new mortgage in which he was described as a resident of Woodson county, Kansas. This mortgage was duly filed in Woodson county on November 9, 1940. When the new note and mortgage were delivered, the old note was not canceled or delivered to Moncrieff and the old mortgage was not released of record.
None of the above notes and mortgages was signed by Mrs. Moncrieff. At some date not fixed in the testimony as abstracted, Moncrieff, accompanied by his wife, drove the car to the bank and informed its cashier he could not pay his note and he wanted to leave the car to take care of the mortgage to the bank. At that time he turned over the key to the car and the bank took the car to a garage.
Such other facts as are necessary to note are referred to later.
On February 18, 1941, the corporation commenced its action against the bank, the petition alleging execution, delivery and filing of the mortgage made to it by Moncrieff on April 4, 1939, default thereon and by reason of its special ownership, it was entitled to possession; that the bank had taken and was in possession of the car under some claim, the exact nature of which was not known to the corporation, but any such claim was inferior to the right and claim of the corporation. The prayer was for recovery of possession of the car.
So far as need be noticed the bank’s answer alleged the corporation knew that in August, 1939, Moncrieff became a resident of Woodson county, Kansás, and that thereafter Moncrieff paid the corporation money on its mortgage; that the corporation never filed its mortgage in Woodson county and abandoned it on October 4, 1940, when it took its mortgage of that date which was filed in Woodson' county on November 9, 1940. The bank further alleged the delivery to it of its mortgage of June 3, 1940; that Moncrieff and his wife delivered the car to the bank for the purpose of securing the debt and the bank held the car as mortgagee in possession. The bank further alleged that if the corporation had any lien upon the car it was inferior to the bank’s lien; that the mortgage to the corporation of October 4, 1940, was void, as the car was exempt property and the mortgage was not signed by the wife; that when Moncrieff and his wife delivered the car to the bank they waived their exemption right and the bank’s mortgage was a valid and subsisting lien. It prayed that its mortgage be declared a first lien.
The corporation’s reply, among other things, alleged that its mortgage was a purchase-price mortgage, admitted that Moncrieff moved to and became a resident of Woodson county, and that its mortgage was never filed in Woodson county. It denied it was guilty of laches or that it was under any duty to file its mortgage in Wood-son county. It also alleged delivery of the mortgage to it of October 4, 1940, but denied it had abandoned its original mortgage, alleged that the debt secured by it had never been satisfied and it had never surrendered or released the original note and mortgage, and that the same was a valid and subsisting first lien. It prayed for judgment as prayed for in its petition.
The trial was by the court which made findings of fact on which it rendered judgment in favor of the bank. The statements of fact hereinbefore noted comprise a part of the trial court’s findings. In addition the trial court made three findings to which the corporation objects. One is that-the copy of the mortgage filed in Jackson county, Missouri, was not an exact copy of the original. It does not affirmatively appear the judgment was based on this finding. We have examined the original mortgage and the copy filed as shown in the abstract, and while the copy is not exact (the statute says “true,” G. S. 1935, 58-301) the differences pertain to matter other than the body of the mortgage creating the lien. Without further comment, we think under our decision in Bank v. Brecheisen, 65 Kan. 807, 70 Pac. 895, the copy as filed was sufficient to constitute notice. The second objection is that a finding the corporation consented to Moncrieff’s bringing the car to Woodson county is unsupported by the testimony. The president of the corporation testified Moncrieff had sent in checks from Yates Center for some -five to seven months before the corporation took its new mortgage on October 4,1940, and on the latter date Moncrieff was in arrears from three to five months. He also stated he knew that Moncrieff was living in Yates Center when the last mortgage was made. At no place in his testimony, as abstracted, does he say he did not know that Moncrieff was living in and engaged in business in Yates Center. His only-statement was that Moncrieff was living in Kansas City, Mo., when the first mortgage was given. We think it may fairly be inferred from the testimony that the corporation, through its president, knew that Moncrieff was living in Yates Center for some months prior to October 4, 1940, and that by its failure to object to the car being in Woodson county or to take steps to protect itself under its mortgage, that it consented thereto.
The third objection is that the trial court erred in finding Mon■crieff obtained a certificate of title for his car from the vehicle commissioner of Kansas on February 3, 1940. It may be said the proof a certificate was obtained is scant. The matter of whether a certificate was obtained is not important here. The attempt to get the certificate does show, however, the car was being kept in Woodson ■county on the last-mentioned date.
The appeal presents two questions of prime importance. The first is, on the removal of the mortgaged property from Missouri, where ■the mortgage was filed, to Kansas, where it was not, did priority of the corporation’s lien persist, or when it consented to such removal .and did not file its mortgage in the appropriate county in Kansas, could a subsequent mortgage in good faith obtain priority? The ¡second question is whether the bank’s mortgage constituted a valid lien.
Our statutes with, respect to chattel mortgages contain no provision for a refiling of a chattel mortgage on property removed by the mortgagor. Without regard to certain exceptions not here important, our statute provides that every such mortgage shall be void .against subsequent mortgagees in good faith, unless the mortgage ■or a true copy thereof be deposited in the office of the register of deeds of the county where the mortgagor resides (G. S. 1935, 58-:301). The laws of Missouri are not pleaded nor proved. Assuming the law of that state is the same as ours, the original mortgage, being filed in the county of the mortgagor’s residence, was notice of the lien secured thereby.
The general rule is that where a chattel mortgage has been properly filed and thereby priority of lien is preserved, upon the removal of the mortgaged property to another state it is not necessary in order to preserve the lien that the mortgage be filed in the state to which removal has been made. That general rule has been followed in Kansas. See Handley v. Harris, 48 Kan. 606, 29 Pac. 1145, and National Bank v. Massey, 48 Kan. 762, 30 Pac. 124. But there is a well-recognized exception to that, rule and that is it is not applicable if the mortgagee knows of or consents to the removal. Not .all courts give the same reason for applying the exception. In Moore v. Keystone Driller Co., 30 Ida. 220, 163 Pac. 1114, L. R. A. 1917 D, 940, it was said that when a local state recognizes as a valid lien a mortgage given in a sister state on property then there, and which was afterwards removed to the local state, there had been accorded to the sister state the full measure of courtesy contemplated by the rule of comity, and to go further and hold the rule applies where the removal was done with the mortgagee’s consent, and that the mortgage need not be filed locally, but that an innocent purchaser (or subsequent mortgagee) is chargeable with notice which the mortgagee could, and in good conscience should, have given him, is beyond the spirit of the rule and in violation of the rights of the citizens of the local state. As bearing on the question of lien on property removed from one state to another, see 11 C. J. 529; 14 C. J. S. 758; 10 Am. Jur. 777; and note 57 A. L. R. 702, 711 et seq. We think that the reasoning of the Idaho court is sound. It clearly appears here that the corporation had it within its power to protect itself. It could have enforced its lien promptly when the property was removed from Missouri, it could have enforced it when default was made in the note, or it could have filed its mortgage in Woodson county. It did none of these things. After Moncrieff had lived in Yates Center from August, 1939, to June, 1940, he applied to the bank for a loan on the car, representing it to be clear of encumbrance; the bank investigated the records and apparently that representation was true. It then made the loan. We think no rule of ■comity now compels any conclusion that plaintiff’s original lien should be held prior to that of the bank, if the' bank’s lien is good, and we therefore take up the corporation’s contention the car was •exempt property, the mortgage was not signed by the wife, and therefore the mortgage of the bank is void.
Let it be conceded for thé purpose of discussion that the corporation may raise the question and that the car was exempt property (G. S. 1935, 60-3504; Foster v. Foster, 144 Kan. 528, 61 P. 2d 1350). The statute with reference to chattel mortgages on exempt property declares it unlawful to create any lien by chattel mortgage, “without the joint consent of both husband and wife.” (G. S. 1935, 58-312.) It does not in words require the wife to sign mortgages on the husband’s exempt property.
Our constitutional provision with respect to homesteads prohibits .alienation “without the joint consent of husband and wife” (Const., art. 15, sec. 9) and the exemption provision of the code of civil procedure uses identical language (G. S. 1935, 60-3501). In Matney v. Linn, 59 Kan. 613, 54 Pac. 668, it was held that while there must be a joint consent of the husband and wife to the alienation, the written consent of the one not vested with the legal title was not absolutely essential, and that valid joint consent could be shown by testimony. If that be the rule as to the homestead, certainly no harsher test should be here applied. The record here shows nothing as to whether Mrs. Moncrieff did or did not consent to the mortgage to the bank at. the time it was given. It does show that she was present and consented to the car being delivered to the bank in satisfaction of the debt. If need be the doctrine of relation back might be applied, but we think it may be inferred that she consented to the transaction in all its parts.
We need not devote much time or space to the second mortgage to the corporation. It was inferior to the mortgage to the bank, and under the pleadings the corporation placed its right of recovery expressly on its first mortgage and not on its second one.
It has not been made'to appear the trial court erred and its judgment is affirmed.
Hoch, J., not participating. | [
-16,
104,
112,
-84,
10,
96,
42,
26,
105,
-95,
-91,
83,
-21,
-54,
4,
125,
-22,
31,
116,
122,
-11,
-77,
7,
-117,
-46,
-77,
-40,
-35,
-71,
77,
-12,
70,
76,
48,
-54,
-107,
-26,
-128,
-43,
30,
-50,
-124,
56,
-27,
-39,
80,
52,
-85,
80,
11,
81,
15,
-25,
46,
27,
79,
105,
40,
-21,
41,
-48,
-16,
-119,
7,
127,
23,
35,
4,
-116,
33,
-40,
10,
-104,
57,
16,
-24,
-48,
-74,
-122,
-12,
79,
-103,
8,
38,
102,
34,
49,
-17,
-8,
-104,
14,
-13,
7,
-90,
-16,
88,
2,
99,
-74,
-97,
125,
18,
5,
-4,
-17,
21,
25,
108,
7,
-113,
-76,
-111,
13,
117,
-98,
11,
-17,
5,
36,
112,
-115,
82,
93,
23,
62,
-101,
70,
-80
] |
The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when a taxicab being driven by plaintiff collided with an automobile being driven by defendant. The trial court struck out certain portions of the answer. Defendant has appealed on the theory that this action of the trial court deprived him of his right to plead the defense of contributory negligence.
As alleged in the petition, the collision occurred on Minnesota avenue in Kansas City, Kan., about 5:30 in the morning on October 31. That is the main street of the city and runs east and west. Tenth street runs north and south and intersects Minnesota avenue. The first east-and-west street north of Minnesota avenue is State avenue. An alley runs east and west between State and Minnesota. The Victory Cab Company had a parking lot and place of business at the southwest corner of State avenue and Tenth street, extending from State avenue south to the alley. Across the alley to the south there was a parking lot of the Granada theater, which extended from the alley south to Minnesota avenue and had an exit to the south to Minnesota avenue. All the streets and alleys mentioned were paved. The plaintiff left the cab station on State avenue and drove south across the alley .and through the parking lot of the Granada theater and onto the north side of Minnesota avenue at the exit. As he crossed the north sidewalk of Minnesota avenue the motor of his cab stopped and the cab coasted south into the north half of Minnesota avenue until its front wheels reached a point approximately two feét north of the north streetcar rail in that street and remained in that position for approximately two minutes while plaintiff was endeavoring to start his motor. It was dark and raining, but Minnesota avenue was well illuminated.
The petition then alleged that the defendant was driving his car west on Minnesota avenue on the north side of the street at a dangerous rate of speed, that is, thirty-five miles an hour, and while the plaintiff was in the position described defendant drove his automobile into the automobile of plaintiff, injuring him.
The petition alleged that the defendant was negligent in driving at a high rate of speed exceeding the speed limit for the business district of Kansas City, Kan.; in failing to keep a sharp lookout; driving his automobile without due caution; in failing to observe the position of plaintiff so as to avoid the collision; in operating his car so speedily that he could not exercise control over it; in failing to turn out and avoid the collision; in failing to pass to the south of the plaintiff; in failing to have his car equipped with brakes, and in failing to use his brakes.
The petition alleged also that the defendant saw the plaintiff, or could by the exercise of ordinary care have decreased the speed or stopped in time to turn out to avoid striking him, and that the defendant negligently failed to use ordinary care in keeping a sharp lookout and should have seen the plaintiff was in peril, and negligently failed to use ordinary care to avoid the collision.
The defendant filed an answer in which he alleged, first, a general denial.
For a second defense, defendant alleged, first, that during the time that the taxicab stood still on Minnesota avenue, plaintiff by the exercise of ordinary care could have seen the defendant approaching and could have gotten out of the taxicab and put himself in a place of safety before the collision occurred. This defense also pleaded that the plaintiff could by the exercise of ordinary care have caused the taxicab to move backward downgrade toward the north curb of Minnesota avenue and thereby have avoided the collision.
The trial court struck out the defense to the effect that plaintiff could have let his car coast back. The final sentence of this defense was that this negligence was the proximate cause of the injury plain tiff received. This sentence referred to all of the allegations of this defense.
Defendant argues it was error for the court to strike out this portion of his answer. The question with which we are confronted was whether or not the. defendant was entitled to prove the matters set out in this defense as a part of the facts and circumstances surrounding the collision. Not every decision made by one who finds himself in a position of peril, where the decision results in his injury, is contributory negligence. We hold that whether circumstances such as described in this answer constituted contributory negligence is a question of fact. Whether or not it should be submitted to the jury would depend altogether on what actually developed during the trial of the action. See Spear v. City of Wichita, 113 Kan. 686, 216 Pac. 305, and many other cases.
As a third defense, the defendant admitted the location of the streets, as pleaded in the petition, also that plaintiff drove his taxicab across the walk and into Minnesota avenue and that its motor stopped as the cab crossed the sidewalk. He alleged, however, that the cab coasted farther south toward the middle of the street than was alleged in the petition; that plaintiff turned it to his left, or to the east, into the line of westbound traffic and he denied that the cab stood in that position a longer length of time than one second. So much of the third defense was allowed to stand. The defense answer then proceeded to allege that the parking lot, out of which the plaintiff drove, was maintained by the owner of the theater for the use of its patrons in the afternoons and evenings, but not in the mornings, and if the plaintiff used this parking lot to go onto Minnesota avenue he was a trespasser; that he should have driven his cab from the parking lot of the company- onto State avenue and thence to his destination, or that he should have driven it along the east-and-west alley between State and Minnesota and thence to the public streets; that either one of those .routes would have been easy and safe; that the route which he did take was an unusually dangerous one on account of various circumstances that were set out. The answer further alleged that the plaintiff allowed his taxicab to coast into Minnesota avenue and immediately turned it against the traffic without giving any signal of his intention so to do, and if he had continued on south or turned to the west he could have stopped his automobile in time to avoid a collision. The answer then alleged that the negligence of the plaintiff in taking the more dangerous route was the proximate cause of the collision, in turning it to the east without giving a signal and in failing to stop his cab before coasting into the path of defendant’s car. All the foregoing matter was stricken from the answer. Defendant argues that this was error. We fail to see anything in these allegations other than what defendant claims were the facts and circumstances surrounding the collision constituting contributory negligence on the part of the plaintiff.
As has been heretofore said, in the discussion of the matter that was stricken from the second defense we are not called upon to say that these allegations were an absolute defense to the action. Just what they will be remains to be seen when the case is tried and the evidence upon which the defendant relies to support these allegations is produced. There will be a time in the course of the action when the trial court will decide which of these allegations are sufficiently supported by evidence to warrant being submitted to the jury under proper instruction as to contributory negligence.
For a fourth defense, the defendant denied that the taxicab stood on Minnesota avenue for longer than one second and this much of the answer was let to stand. The defendant then alleged that the parking lot, out of which the plaintiff drove, was maintained by the theater for parking purposes and was only used in the evenings and afternoons; that neither the plaintiff nor any driver of the cab company had any right to use it as a driveway to Minnesota avenue; that the cab company had used in its taxicab business a large number of taxicabs and had grounds on the place described heretofore in this opinion and that there was an alley between the parking lot mentioned by the taxicab company and the one mentioned by the theater company; that the taxicab company had made a practice of using the parking lot of the theater and that this constituted an unnecessary danger to traffic on Minnesota avenue and was a nuisance, and as so carried on by plaintiff'' contributed to the collision of the vehicle in question. This matter was stricken out by the trial court. Defendant argues this was error. We have concluded that the same reason applies to this as applies to the other two. The motion to strike should have been overruled.
The ruling of the trial court sustaining plaintiff’s motion to strike is reversed with directions to proceed with the trial of the action in accordance with the views herein expressed. | [
-16,
122,
-32,
-18,
31,
72,
16,
-102,
53,
-77,
-90,
51,
-83,
-53,
7,
57,
-18,
61,
-48,
99,
-11,
-93,
71,
-86,
-78,
-77,
-13,
13,
-102,
-53,
100,
118,
76,
32,
74,
-99,
38,
-54,
69,
94,
-50,
36,
9,
-24,
-39,
3,
-80,
122,
2,
7,
49,
-113,
-45,
44,
24,
-61,
-83,
44,
123,
-87,
-47,
-16,
-56,
-107,
95,
6,
-93,
52,
-68,
-115,
88,
24,
-112,
49,
40,
108,
48,
-26,
-124,
-12,
109,
-103,
12,
-94,
102,
32,
17,
-49,
-4,
-104,
14,
-6,
15,
-90,
-108,
56,
73,
5,
-106,
-101,
127,
22,
15,
122,
-1,
85,
27,
104,
3,
-54,
-80,
-79,
-49,
-16,
22,
77,
-21,
-121,
34,
97,
-54,
116,
94,
-43,
54,
-101,
-49,
-108
] |
The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus brought by the state on the relation of the attorney general and the county attorneys of the counties of Wyandotte, Sedgwick, Shawnee, Labette and Crawford, in which counties are situated respectively the cities of Kansas City, Wichita, Topeka, Parsons and Pittsburg. In each of the cities registration of voters is required. In Kansas City, Wichita and Topeka an election commissioner, and in Parsons and Pittsburg, the city clerk, is the official in charge of the registration of voters. Each of these officials is made a party defendant.
In the motion for the writ it is alleged that the government of the United States, under the authority of Title 42, U. S. C. A., section 1521, legally procured the fee simple title to a certain tract of real property within the corporate limits of Kansas City, and also to a certain tract of real property within the corporate limits of Wichita, and has constructed on each of the tracts a large number of dwelling houses to provide housing facilities for persons engaged in “hational defense activities,” as that term is used and defined by Title 42, U. S. C. A., section 1522; that these dwellings became and now are occupied by the following classes of persons and their families: (a) Men employed by the government of the United States as engineers, inspectors, or guards in the construction, maintenance and operation of plants, factories and other industries engaged solely in production of materials necessary to the national defense; (b) persons employed and paid by private contractors under contracts with the government of the United States in the building and equipping of plants, factories and other industries essential to the national defense; and (c) persons employed and paid by local persons, firms and corporations now producing at the plants some other material, equipment and supplies necessary to and used exclusively in the national defense.
It is alleged that many of such persons were nonresidents of the state of Kansas at the time of their entry on property above mentioned, and that others moved there from various points within the state of Kansas; that the government has assumed and is now exercising jurisdiction over each of the tracts so acquired, save and except such jurisdiction as is retained by our statute (G. S'. 1935, 27-102), and under acts of congress, and is regulating wages and hours of all persons living on the tracts of land and employed as above set out; that numerous persons of each class of workers above mentioned, occupying the dwellings located as above described, and having so occupied the premises for a period of six months or more, being citizens of the state of Kansas and otherwise qualified as electors of the state, save and except as to the question of their residence, have applied to the commissioner of elections in their respective cities to be registered as qualified voters, and upon such request the respective election commissioners, believing that such applicants for registration were not in fact qualified electors of the city, but believing and contending that the residence of such applicants was and is only a temporary residence, that the entire housing project is in and of itself of only a temporary nature to be maintained only during the duration of the emergency, and that the project at the conclusion of such emergency would be terminated, disassembled and abandoned as authorized by Title 42, U. S. C. A., section 1541; and further believing that each of such applicants is classified as a person engaged in national defence activities, and as such can neither gain nor lose residence for voting purposes, have failed and refused to register any of such applicants for registration.
Plaintiffs allege that the election commissioners are acting under an erroneous belief and misinterpretation of the law, and that their refusal to register such applicants constitutes a refusal of the election commissioners to perform their lawful duties.
Plaintiffs further allege that located within each of the cities of Kansas City, Wichita, Topeka, Parsons and Pittsburg are what are known as “trailer camps”; that under Title 42, U. S. C. A., section 1521, the government of the United States has acquired possession of tracts of land located in such cities by leases entered into with the owners of the fee title, which leases run from year to year and are made for the duration of the emergency declared by the president of the United States, September 8, 1939; that after obtaining possession of such tracts the government has placed thereon homes known as “trailer homes,” being small houses mounted on wheels capable of being moved from one place to another, which homes are occupied by the various classes of workers and employees and their families hereinbefore mentioned, who perform the same class of work and fulfill the same duties to their various employers as above set out; that many of such persons were nonresidents of the state at the time of their entry upon such property, and others moved thereon from various points within the state of Kansas; that the labor and services of the men so residing on such properties are essential to the national defense, and each of them is employed in “national defense activities”; that various of the persons residing in such residences are qualified electors except for the place of their residence and the type of work they do and have applied to the proper election commissioner or city clerk to be registered as voters, which request has been refused by such official for the reasons previously stated.
Plaintiffs further allege that many workers in each of the above described classes, together with their families, and employed in each of the various classes of work in “national defense activities,” as above described, and in each and all of the cities, are now and for more than six months have been living in homes owned by individuals other than themselves; that some of the workers moved to such homes from without the state, and others from various parts within the state, having resided in their present locations for more than six months, and believing themselves to be legally entitled to registration as voters, have made application to be so registered, but that the commissioners of election and city clerks have refused to register such applicants, basing their refusal upon the grounds hereinbefore set out, except the ground that the applicant was residing upon property owned wholly by the government of the United States, and plaintiffs allege that such refusal was and is based upon an erroneous interpretation of the law and constitutes a failure on the part of the defendant officials to perform their official duties.
Plaintiffs further allege that within the corporate limits of Kansas City the government of the United States (in 1939) legally acquired the fee simple title to a certain tract of land for the purpose of erecting and maintaining a post office and other federal buildings thereon; that upon the acquisition of such title the government assumed full control and possession -of the premises, but that no further work has been undertaken in connection with the erection of such federal buildings, but on the contrary the government has leased the homes located on the premises, when purchased, to various persons who are now living in such homes; that the persons residing in such homes, being otherwise qualified electors, made application to the commissioner of elections of Kansas City to be registered as voters, but such application was refused upon the ground that the applicants reside on the ground purchased by the United States by the consent of the legislature of Kansas and were not qualified electors of the state, and it was alleged that such refusal constitutes a failure on the part of the commissioner of elections to perform his official duties.
The prayer was that an alternative writ issue, and upon final hearing an order issue requiring the respective commissioners and city clerks to register as voters each of the applicants of the various classes mentioned in the motion.
The alternative writ was issued. The commissioner of elections of Kansas City filed an answer setting out more in detail the circumstances respecting the tracts of land acquired by the government in Kansas City, how they were improved, occupied and managed; admitted many of the allegations of the motion for the writ, alleged uncertainty as to his duties respecting the registration as voters of the persons occupying such properties, and asked the court to make such ruling as the law and facts justified. The city clerk of Pitts-burg filed a motion to quash the alternative writ for the reason that no facts were alleged justifying its issuance.
At the request of the parties the case was advanced for hearing, has been argued orally, and numerous briefs have been filed. No question of misjoinder of parties is presented. Liberally construed,' the pleadings present a case for a declaratory judgment. We turn now to the questions argued. In the motion for the writ and in the briefs and arguments the facts are stressed that the applicants seeking registration as voters are employed by the federal government, or by contractors who have contracts with the federal government, and that their work is devoted wholly to the national defense, and that others are employed by private firms or individuals engaged primarily in the national defense. We think these facts have no bearing on the right of the applicants to vote. In this state the right to vote is conferred by our constitution (art. 5, § 1) upon all citizens of the United States of the age of twenty-one years and upwards “who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he or she offers to vote, at least thirty days next preceding such election . . .” unless disqualified for reasons not necessary to be noted here.
The motion for the writ and the arguments stress the thought that the employment in which these applicants for registration are engaged is temporary in character, hence that the residence of the applicants in question is temporary and that they still retain their domicile or home at the place in Kansas or some other state from which they came to the work they are now doing. This thought presents no new legal question. A citizen has a right to change his residence, either temporarily or permanently. Whether he does, or which he does, is determined by his acts and his intentions. See our constitution (art. 5, §§ 1, 3), G. S. 1935, 25-108, 25-407, 77-201, subsections 23 and 24, and the following cases: Ingraham v. McGraw, 3 Kan. 521; Hart v. Horn, 4 Kan. 232; Hunt v. Richards, 4 Kan. 549; Hixon v. George, 18 Kan. 253, syl. ¶ 9; Adams v. Evans, 19 Kan. 174; Keith v. Stetter, 25 Kan. 100; Garlinghouse v. Mulvane, 40 Kan. 428, 432, 19 Pac. 798; State, ex rel., v. Deniston, 46 Kan. 359, 26 Pac. 742; Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; Uhls v. Allard, 69 Kan. 825, 77 Pac. 752; Ford, Adm’x, v. Peck, 116 Kan. 74, 225 Pac. 1054; Roberts v. Robertson, 123 Kan. 222, 252 Pac. 475; Strackeljohn v. Campbell, 136 Kan. 145, 12 P. 2d 829; Campbell v. Ramsey, 150 Kan. 368, syl. ¶¶ 8, 9, 92 P. 2d 819.
The proceeding before us presents no new questions of law respecting this matter. Defendants, as to each applicant, must determine this matter in harmony with the general rules of law as set forth in the authorities just cited.
The real question in this case is whether the place where the applicant for registration resides at the time he makes his appli cation is a place within the state of Kansas and under the jurisdiction of its laws. The pertinent’portion of our federal constitution (art. 1, § 8, cl. 17) reads:
“The Congress shall have Power . . . To exercise exclusive' legislation in all cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dockyards, and other needful Buildings; . . .”
The pertinent sections of our General Statutes (Laws 1927, ch. 206) read:
“That the consent of the state of Kansas is hereby given, in accordance with the provisions of paragraph number seventeen, section eight, article one of the constitution of the United States, to the acquisition by the United States, by purchase, condemnation or otherwise, of any land in the state of Kansas, which has been, or may hereafter be, acquired for custom houses, courthouses, post offices, national cemeteries, arsenals, or other public buildings, or for other purpose of the government of the United States.” (27-101.)
“That exclusive jurisdiction over and within any lands so acquired by the United States shall be, and the same is hereby, ceded to the United States, for all purposes; saving, however, to the state of Kansas the right to serve therein any civil or criminal process issued under the authority of the state, in any action on account of rights acquired, obligations incurred or crimes committed in said state, but outside the boundaries of such land; and saving further to said state the right to tax the property and franchises of any railroad, bridge or other corporations within the boundaries of such lands; but the jurisdiction hereby ceded shall not continue after the United States shall cease to own said lands.” (27-102.)
“That the jurisdiction hereby ceded shall not vest until the United States shall have acquired the title to said lands; and as long as said lands shall remain the property of the United States, the same shall be exempt from all state, county and municipal taxes.” (27-102a.)
It is well settled in this state, and generally elsewhere, that when the federal government, under authority of congress, exercises exclusive legislation over a tract of land situated within the state for any of the’purposes mentioned in the provision of the federal constitution above quoted, and such exercise of exclusive legislation by congress is consented to by the state under a statute similar to ours above quoted, a resident of such a tract of land is not deemed a resident of the state with authority to vote at state elections. See Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946, where the authorities on the subject are collected.
However, it is the rule that even, though the federal government desires the use of a tract of real property situated in a state for some purposes it is not compelled to exercise exclusive legislation with respect to it even though a state has a statute similar to ours above quoted. (Atkinson v. Tax Comm., 303 U. S. 20, 58 S. Ct. 419; Stewart & Co. v. Sadrakula, 309 U. S. 94, 60 S. Ct. 431.) In recent years, by the acquisition of land for some purposes, the congress has clearly indicated its intention not to exercise exclusive legislation over the land taken. In the act of congress providing for the housing of persons engaged in the national defense (Title 42, U. S. C. A., § 1501 et seq.) is section 1547, which reads:
“Notwithstanding any other provision of law, the acquisition by the administrator of any real property pursuant to subchapters II-IV shall not deprive any state or political subdivision thereof, including any territory or possession of the United States, of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the state' or local law of the inhabitants on such property.”
The term “civil rights,” as used in this section, has been construed as being broad enough to include “political rights.” (Johnson v. Morrill, [Calif. Sup. Ct.] 126 P. 2d 873.)
It therefore follows that the federal government has never exercised exclusive legislation, which is tantamount to exclusive jurisdiction, over the tracts of land in Kansas City and Wichita used for housing facilities, nor upon the “trailer camps” of any of the cities in question, and certainly has not attempted to exercise any type of authority over the real property owned by private individuals, which types of real property are referred to in the motion for the writ.
The situation with respect to the tract of land purchased in Kansas City, Kan., designed for the use of erecting a post office and other federal buildings comes in a somewhat different class. We are told in the briefs and arguments that it was purchased in 1939, prior to the enactment by congress of the acts last quoted. It would seem that •these late acts of congress are not applicable, hence it follows that the rule announced in the case of Herken v. Glynn, supra, applies.
From what has been said it follows that residence on the land used for the housing projects in Kansas City and Wichita, standing alone, does not constitute lawful grounds for denying the right to register, and persons so residing should be registered as voters if otherwise qualified. The same rule should, apply to those living in the “trailer camps” and any properties privately owned. The rule does not, however, apply to those residing upon the property in Kansas City, Kan., purchased by the federal government in 1939 for a post office and other federal buildings.
Since the purpose of the action was to determine the rights, authority and duties of defendants, we think the formal writ of mandamus need not be issued. Jurisdiction of the action will be retained, however, for the making of such orders as may be necessary to carry out the views of the court herein expressed. | [
-16,
-22,
-15,
92,
10,
-61,
56,
-118,
56,
-79,
39,
87,
-19,
11,
21,
121,
122,
45,
80,
123,
-25,
-73,
67,
-53,
20,
115,
-7,
-43,
58,
73,
-10,
-12,
76,
52,
74,
-107,
6,
66,
7,
28,
-50,
4,
-117,
-64,
-36,
0,
52,
107,
114,
11,
81,
-82,
-13,
40,
18,
-61,
-55,
44,
-55,
42,
65,
-7,
-114,
-43,
124,
22,
-95,
6,
-108,
-57,
-32,
63,
-104,
48,
-64,
-84,
123,
-90,
2,
-10,
7,
41,
40,
42,
98,
67,
-79,
-81,
-24,
-119,
14,
-45,
-115,
-26,
16,
24,
98,
40,
-106,
-99,
125,
16,
7,
126,
-9,
5,
23,
108,
-113,
-113,
-12,
-77,
15,
112,
-118,
19,
-17,
-95,
0,
96,
-62,
-74,
95,
67,
50,
51,
-113,
-72
] |
The opinion of the court was delivered by
Harvey, J.:
This was an action upon a fire insurance policy. A trial by jury resulted in judgment for plaintiff. Defendant has appealed.
The pertinent portions of the pleadings may be summarized as follows: Plaintiff in his petition, filed October 20, 1940, alleged that defendant, The Farmers’ Alliance Insurance Company, of McPherson, Kan., is a corporation organized and existing under the insurance laws of this state; that about February 24, 1937, in consideration of the payment of a stipulated premium, plaintiff and said defendant entered into a contract in writing whereby defendant insured plaintiff against loss or damage by fire of a certain shingle-roof frame produce barn, situated on a described thirty-acre tract of land in Finney county, to the amount of $750, for a term ending February 24, 1942; á copy of the insurance contract was attached; that about July 27, 1940, while the contract of insurance was in force, the building was completely destroyed by fire, without criminal fault on the part of plaintiff; that immediately thereafter plaintiff. notified defendant insurer of such loss and demanded payment of the sum of $750, but the defendant insurer denied all liability as the result of such loss, claiming that the contract of insurance was cancelled July 6, 1940, by virtue of a written notice which the insurer claimed was mailed to plaintiff, which purports to read as follows: '
“Policy Endorsement
“Policy No. 322376 Insured, Nick Merrill
“This endorsement issued on condition that said policy is in full force and does not waive any of the provisions, conditions or stipulations of said policy, except as expressed hereon.
“Conformable with the request of our inspector, we hereby cancel the $750 fire and the $693.70 wind and hail coverage on the Produce House.
“Return premiums $3.68.
“Effective date July 6, 1940.
“Farmers Alliance Insurance Co.,
“By H: J. Ferguson (Signed),
“Secretary.”
“Plaintiff alleges that no such notice was ever mailed to him and no such notice of such import was ever at any time or in any manner by plaintiff received”; that plaintiff has performed all conditions encumbent upon him to be performed; that the reasonable value of the building was in excess of the amount of the insurance, and the prayer was for judgment for $750 and cost of suit, including a reasonable attorney’s fee.
Defendant in its answer admitted plaintiff’s residence and its corporate existence as alleged, and that it executed a policy of insurance on a certain shingle-roof produce bam, situated upon the tract of land described, in the amount of $750, and alleged that at the time the building burned plaintiff was not insured under the policy against loss by fire, for the reason the policy provides: “It is stipulated and agreed ... if the premises described shall be occupied for other than farm purposes . . . this policy shall be null and void,” and alleged that at the time the insurance policy was issued the building was represented to be and was occupied as a farm produce barn, and at the time of the fire the building was occupied as a roadhouse where bottled goods, sandwiches and other things were served and sold; that the policy further provided:
“This company reserves the right to cancel this policy, or any part thereof, by giving five days notice to that effect to the insured, and if the premium has been paid, making a tender of the unearned premium such notice of cancellation and tender of unearned premium to be made in person or by mail addressed to the insured’s post-office address”;
and alleged that several days prior to July 6, 1940, defendant was advised of the change of occupancy and use of - the building, and notified insured that the company did not insure buildings so occupied, and that it intended to cancel the policy insofar as that building was concerned, and that on July 6, 1940, defendant sent by United States mail, in an envelope addressed to the insured at his post-office address as shown in his application, said envelope being duly stamped with the required amount of United States postage, a notice of cancellation of said policy in words and figures as set out in the petition; that defendant also enclosed therewith the unearned premium on the policy in the amount of $3.65, being the amount of the premium for the unexpired term of the policy, insofar as it insured that building. A copy of the application on which the policy was issued was attached to the answer. It was alleged that the policy further provided:
“If the property or any part thereof shall hereafter become mortgaged or encumbered . . . this policy shall be null and void”; and “that on March 3, 1938, the plaintiff executed a mortgage on said premises in the amount of $720.00. Said mortgage being given to J. W. Brennaman.”
The prayer was that defendant have judgment for costs.
In his reply plaintiff admitted he executed a mortgage to one J. W. Brennaman mentioned in the answer, but alleged the indebtedness evidenced by the mortgage was a lien upon the property at the time the application for insurance was made; denied generally and specifically all other allegations of the answer, and alleged the application for insurance was prepared by a duly authorized agent of the insurer, and if plaintiff failed to answer any material question in the application it was because the same was not called to his attention by the agent of the insurer, and if he violated any of the provisions of the insurance policy in any way it was unintentional on his part; that the policy was never delivered to plaintiff by the insurer nor was he given an opportunity to examine it, but that the same was delivered to the Federal Land Bank at Wichita; and further alleged that about the month of May or June, 1940, the defendant insurer paid plaintiff a hail loss under the policy, and at that time the duly authorized agents of defendant were fully in formed of the use made of the premises in question, and at that time orally stated that if the insurer saw fit to change the insurance contract the insurer would notify plaintiff before such change was made so as to enable him to obtain other insurance; that plaintiff was never notified of any desire on the part of the insurer to change the insurance contract until after the fire loss, and the insurer then based its refusal to pay upon a purported notice to cancel the insurance in part, as set out in plaintiff’s petition; that the insurer, knowing the terms and conditions set forth in the insurance contract, knowing the facts as to the use being made of the property and of the oral promise made to plaintiff by the insurer, and knowing the existence of the indebtedness evidenced by the mortgage to J. W. Brennaman, not only at the time of making the application for insurance but at the time the insurer claims to have given the notice of cancellation, retained the insurance premiums and failed to cancel the insurance and continued the same in force, and that the insurer is estopped and precluded from denying liability; and plaintiff asked for judgment as prayed for in his petition.
The policy,and application therefor, attached to the pleadings, disclose that the losses insured against in one policy were fire and lightning, wind and tornado, and hail, for each of which a separate premium was computed for the term of •the policy, which was five years from its date, February 24, 1937. The amount of the insurance for each type of loss was, $2,000 on the dwelling, $1,000 on the contents of the dwelling, $1,000 on shingle-roof concrete potato shed, and $750 on a shingle-roof frame produce barn, all situated on a specifically described thirty-acre tract of land. The application disclosed the real property was mortgaged to the Federal Land Bank at Wichita, and a mortgage clause of the type the Land Bank uses-was attached to the policy. The premiums as computed aggregated $183.25, for which the insured executed his note to the insurer and promised to pay the sum “at such time and in such installments as may be called for by said company.” The policy states there was a first payment of $54.98. The record does, not disclose what other installments were asked for or paid, except that on February 15, 1941, the insured paid an installment called for in the amount of $26.26. The statement indicates that this was called for upon fire' and lightning in the sum of $4,000 and wind and tornado in the sum of $3,921. There is no contention that other installments, if requested, .were not paid.
Plaintiff testified that he owned and lived on the thirty-acre tract of land described in the policy and had his house, barn, potato barn, chicken house, pumping plant, and storehouse that burned, on the tract; that the building destroyed by fire July 28, 1940, cost $1,500; that he insured through Henry Weldon as agent; that there was just one policy covering all the property; that he had never seen the policy, it having been sent to the Federal Land Bank; that at the time the building burned it was used as a roadhouse where sandwiches, Coca-Cola and soft drinks were sold and where people danced, and was kept open until one or two o’clock at night. At the time the insurance was written it was used to store onions and other farm produce, no dancing was had, or sandwiches -sold; he sold produce in front of the building; it was kept open until seven or eight o’clock; that in June, 1940, the company paid a hail loss on other buildings .insured by the policy. At that time he had a talk with the representative of the company.
“He said he rent that building and he said he going to tell the company maybe he no like that kind of business, and I told him all right, you send the letter to the company and if they no want to insure it I insure it with some other company. After that time I never did see more of that man.”
On cross-examination respecting that he testified:
“After one or two weeks, something like that, the company send the check, and Miller bring it out. I been half mile west of the house, and at that time he said he was going to send the letter to the company and find out whether he was going to keep that building insured, and I told him if that company no like to take care of it, I find a company that insure it. He told him the company would not insure ‘that kind of business.’ He told me ‘that you rent this building that kind of business, that’s dangerous.’ ‘Well,’ I told him, ‘all right, you send letter to company, you find out company no take care of it, and I find Henry Weldon, he got another company; I insure some other company.”
He further testified that he never received any notice of cancellation or a letter enclosing a check for the returned premium. He gets his mail just west of the burned building from a mailbox. There are six or seven mailboxes there. The postman puts his mail in the box; he or his son gets the mail. He testified he put a mortgage on the building in favor of Mr. Brennaman and he told Henry Weldon about that. The Brennaman mortgage was for improvements made on the premises; that he. used that money to pay the lumber bill on the burned building.
Plaintiff further testified that after the fire he found out from Mr. Weldon and Mr. Miller, who appear to have been operating together, that the company said they didn’t owe him anything.
“Mr. Miller told me their company sent me registered letter; he sent $3.68. I told him I never get it. After three or four days he said he sent me a straight letter, and I said I never get it.”
Plaintiff’s son, Mike Merrill, testified that he lived at home and that he'occasionally got the mail; that he never took a letter out of the box that appeared from The Farmers’ Alliance Insurance Company at any time.
Everett Miller testified that he was in the insurance business and was an agent of The Farmers’ Alliance Insurance Company. He saw the plaintiff about June 13 and delivered a check from The Farmers’ Alliance Insurance Company to him. He had a conversation with plaintiff about the building that was later destroyed. The plaintiff and an adjuster were present. He told plaintiff:
“. . . that the insurance on the roadhouse was void, but that he would notify the company and let him know definitely later about it. Merrill stated that if it was canceled, he wanted to have some other insurance and it was agreed he would be notified in the event he wanted to do so. The adjuster told him that the policy was void but he would notify the company and let him know definitely later.”
He did not see the plaintiff again until after the fire. Plaintiff also introduced a letter from the company to plaintiff’s attorneys which reads as follows:
“Policy #322736, Nick Merrill.
“This will acknowledge your letter of July 31 stating that Mr. Merrill has asked you to report a fire loss under the above policy on which our local agent informs you an attempt was made to cancel the policy and return the surplus premium but that Mr. Merrill claims he never received any such notice of cancellation or any return of the premium.
“For your information, beg to advise that the records are very clear as to the entire transaction which I am glad to enumerate as follows:
“In the investigation and adjustment of a hail claim some time in June-our adjuster reported that the building insured as a produce bam was being used as a road house serving bottled drinks, sandwiches and obviously this usage voided the policy as to the insurance on this paidicular building even had no cancellation been effected.
“However, the company did on July 6, issue and mail to the named insured at Garden City, Kansas, an endorsement cancelling the fire, wind and hail insurance coverage on the produce house and enclosed check for $3.68 being the return premium for the unexpired term of this amount of insurance.
“The policy provides five days interim between the date of notice of cancellation and the effect of such cancellation which would have made the cancellation effective as of July 11 at noon. It is our understanding that the loss occurred on the 28 day of July.”
Defendant’s demurrer to plaintiff’s evidence was overruled. De fendant asked leave to amend the last paragraph of the answer pertaining to the mortgage of $720 given to J. W. Brennaman by inserting after the words “720” the words “without the knowledge and consent of the defendant.” Plaintiff did not consent to this and the court took the request under advisement. Without making the amendment, defendant called H. J. Ferguson, secretary of the company, as a witness and asked him several questions with respect to the insurer’s knowledge of the mortgage to Brennaman. Plaintiff’s objection to each of these questions was sustained, and this occurred:
Defendant's Counsel: “I don’t understand the reason for that objection, Your Honor.
The Court: “I am sustaining those objections on the ground that it isn’t pleaded; the facts are not pleaded that would void the policy on that ground; it is therefore not within the issues.”
Later the court made the following statement:
“The court decides upon further consideration to change its ruling denying the defendant insurance company’s request for leave to amend its answer to show that the mortgage given to J. W. Brennaman, as alleged in the answer, was given without the knowledge or consent of the defendant company endorsed on the policy. The plaintiff will be given leave, if such amendment is made, to amend its reply on that issue by alleging a waiver of the forfeiture of the policy by reason of the giving of such mortgage by alleging receipt and acceptance by the defendant company of installments of premium to continue the policy in force after notice and knowledge of the existence of said mortgage referred to in the defendant’s answer without endorsement of such consent upon the policy. Upon such amendments being made the court will hear the evidence offered by the defendant company which was excluded by the rulings of the court on the point as to when the defendant company first learned of the existence of the Brennaman mortgage, counsel for defendant having asked that question of the secretary of the company and objection of the plaintiff having previously been sustained. The ruling' sustaining said objection is withdrawn and the court will hear the evidence proffered.”
After this ruling by the court defendant did not amend its answer and no further questions were asked of any witness respecting the Brennaman mortgage.
Mr. Ferguson, secretary-treasurer of the defendant insurer, testified that early in July, 1940, the company learned that the building in controversy was being used as a roadhouse and sent plaintiff a regular cancellation notice in the form of an endorsement cancelling the insurance on the building insured as a produce barn. The notice was sent by mail and deposited in the post office at McPherson, Kan., accompanied by a letter, and enclosed was a draft for $3.68. A copy of the endorsement was sent to the Federal Land Bank and another copy sent to the Weldon Insurance Agency at Garden City, local agents of the company. The endorement and check were included in an open-faced or window envelope in which the letter was simply addressed and inserted in the envelope with the address of the company printed in the upper left-hand corner of the envelope. All drafts issued by the insurer are registered and numbered consecutively, and the draft register of July 6 showed the draft to the appellant in the sum of $3.,68 as having been issued and registered on that date. The draft sent to plaintiff never has been cashed, nor was the envelope in which it and the letter enclosed ever returned to the company.
James Greenleaf testified he was formerly an investigator for the insurer and investigated with Miller the hail loss on plaintiff’s property. At that time he inspected the building and discovered that the building described as a warehouse was being used as a roadhouse, and at that time he told plaintiff that that fact voided his policy; that the use increased the hazard and there was a special rate for that kind of insurance, and that buildings so occupied were on the prohibited list of The Farmers’ Alliance Insurance Company; that he had no insurance on that building; that the insurance on that building was void; that plaintiff said he wanted to get insurance, and the witness told him he didn’t know whether any company would carry it, but would see if they wanted to charge the proper rate and carry it. He further told plaintiff that the prohibitive insurance on that building did not affect the hail loss on the dwelling house. Mr. Miller, who was with Greenleaf on that occasion, testified that the facts testified by Greenleaf were as he recollected them, and that he told plaintiff he would see him again and let him know definitely. Miller also testified to having received a copy of the letter of transmittal sent, together with the cancellation notice.
The jury returned a general verdict for plaintiff and answered the following special question:
“1. Did the defendant, The Farmers Alliance Insurance Company, on July 6, 1940, mail to the plaintiff by United States mail an envelope addressed to Nick Merrill at Garden City, Kansas, with postage prepaid, in which was enclosed a copy of defendant’s exhibits D and E and in addition a check or draft for $3.68? A. No.”
The exhibits referred to in the question were the notice which appellant claims to have sent cancelling the insurance on the building destroyed by fire and the letter which accompanied it. Defendant moved to set aside the special finding of the jury and to set aside the verdict and for judgment notwithstanding the special finding and the verdict. This motion was considered by the court and overruled. Defendant also filed a motion for a new trial, which was considered and overruled, and judgment was rendered for plaintiff in harmony with the general verdict.
Counsel for appellant in their brief say:
“The defendant denied liability on the ground that the policy provided that it would be void if the premise's described should ‘be occupied for other than farm purposes,’ ’ or ‘in case any change take place in the possession of the property,’ or ‘if the property or any part thereof shall hereafter become mortgaged or encumbered.’ ”
The statement is slightly inaccurate. Hereinbefore we summarized defendant’s answer. No contention was there made that the policy was void on the ground that a change had taken place in the possession of the property. The record does not disclose that point was ever referred to in the trial court. In this case the insurance company recognized the insurance as being in force on the produce building as well as on the other property on July.6, 1940, when it made out a notice to cancel the policy on that building, which if served upon the defendant would itself have continued the insurance in force for five days thereafter, and this is the view taken by the defendant in its letter to plaintiff’s attorneys before the action was brought.
It was pleaded that the policy was void on the ground the premises were occupied for other than farm purposes! It has been said the word “premises” has no definite legal meaning. In proper usage it has come to mean land and tenements, land and its appurtenances, the grounds immediately surrounding a house, or a piece of real estate, but it has been used to mean a building, or part of a building, a distinct locality. See 49 C. J. 1327 to 1330 and the many cases collected in 33 Words and Phrases 345, under the title “Premises.” In Winchel v. National Fire Ins. Co., 129 Kan. 225, 282 Pac. 571, it was applied to the farm upon which the insured’s house was situated as well as to the house itself. Perhaps we need not determine the precise meaning of the word as used in this policy, but certainly it did not mean that if one of the buildings should be used for other than farm purposes the entire policy would be void; and it is clear defendant never so construed it. When its agent and adjuster complained to plaintiff about the use made of the. one building plaintiff was specifically told that such use did not affect the insurer’s liability for the hail loss on other buildings insured by the policy, and soon thereafter defendant actually paid the hail loss on such buildings. In the notice of cancellation which defendant claims to have sent to plaintiff, and copies of which it did send to the mortgagee and to its agent, there was no contention that the policy itself was void. Indeed, it was recognized as being in force then and later in February, 1941, when defendant made and collected an assessment for the premium on the policy. There was no time prior to the filing of the answer in this case that defendant ever contended the policy was void because of the use made of the one building. Certainly appellant cannot seriously contend that the policy was void for the payment of losses and valid for the collection of premiums.
The policy contained a provision in effect that it would become void if the property, or any part thereof, “shall hereafter become mortgaged or encumbered.” Defendant in its answer pleaded that provision in the policy and alleged that after the policy was issued plaintiff had mortgaged it to one Brennaman. In his reply plaintiff alleged that the encumbrance represented by that mortgage was on the property at the time the application was made and the policy issued, and with full knowledge of that fact defendant had accepted the premiums and permitted the policy to remain in force. Recognizing that the answer did not plead lack of knowledge or consent of this encumbrance, defendant asked permission to amend it, as hereinbefore stated. After the court had granted defendant permission to amend its answer in that respect, also the plaintiff’s permission to amend the reply if he saw fit, and announced its readiness to hear evidence on that branch of the case, defendant made no amendment and offered no evidence on that question. Previously plaintiff had testified that the encumbrance was on the property at the time the application was made and the policy was issued; that he told Mr. Weldon of that fact, establishing at least prima facie evidence of the plaintiff’s knowledge of that encumbrance. Since defendant concluded not to reframe the pleadings so that question could be tried out, and in fact did not thereafter refer to the matter in the trial court, it is not in position to insist upon it now.
The only controverted questions tried by the jury pertain to the cancellation of the policy upon the building which later burned. With respect to its right to cancel and the service of notice of cancellation the policy reads:
“This company reserves the right to cancel this policy, or any part thereof, by giving five, days notice to that effect to the insured, . . . such notice of cancellation ... to be made in person or by mail addressed to the insured’s post-office address.”
Prior to the filing of the action defendant had advised plaintiff’s counsel that it had canceled the policy in part by an appropriate notice mailed to the plaintiff,. In plaintiff’s petition the fact that plaintiff had claimed to do so was alleged, and plaintiff specifically alleged “that no such notice was ever mailed to him and no such notice of such import was ever at any time or in any manner by plaintiff received.” In its answer defendant alleged:
“On July 6, 1940, this defendant sent by Uuited States mail in an envelope addressed to the insured at his post-office address as shown in his application, said envelope being duly stamped with the required amount of United States postage, a notice of cancellation . . (setting it out).
Plaintiff’s reply contained a general denial. In answer to a special question the jury found that defendant did not mail to plaintiff by United States mail an envelope addressed to him at Garden City, Kan., with postage prepaid, in which was enclosed a copy of the notice of cancellation with check for unearned premium. Appellant argues that the court erred in not setting aside the answer of the jury to that question and contends it is against the evidence. Appellant’s secretary-treasurer, when testifying to mailing this notice, did not testify that the envelope was “duly stamped with the required amount of United States postage,” as alleged in the answer. Why he was not asked that question, since it was specifically pleaded by defendant, or why he did not testify to that fact, is not disclosed. We do note the fact that after the fire defendant’s agent first informed plaintiff that the notice had been sent by registered mail, and a few days later stated it was sent by “straight letter.” From this the jury might have concluded that defendant’s witness was not sure how the letter was mailed. At any rate, the evidence of the mailing of the letter and the payment of postage thereon is not so positive and convincing that the jury and trial court would have to believe it.
There is no contention on appellant’s part that there was any personal service of the notice to cancel; neither is it contended that plaintiff actually received the notice, if it was in fact mailed. Appellant argues that it was not encumbent upon it to show the notice was received, citing on this point G. S. 1935, 40-1015. We think this statute not applicable here for the reason that even if open to the construction appellant contends for it, which we do not decide, it is a statute pertaining to mutual fire and tornado insurance companies. There is no evidence in this case that appellant is such a company; indeed, the application for the insurance- and the insurance policy indicate that it is not. Defendant in fact claimed no right to cancel, except by the provisions relating thereto in the policy, at any time during the trial of this case in the court below or prior thereto, so far as w,e can ascertain from this record. It did attempt to make a cancellation under the terms of the policy; its letter to plaintiff’s attorney so indicates. It is true defendant attempted to make the notice effective the day it was served, but in its letter interpreted that as meaning it would be effective five days later. Perhaps it would have been more accurate to have said it would be effective five days after received by the insured. We do not know how they expected defendant to know that, since the policy was with the mortgagee, but this is not very important here. We do not agree with appellant’s counsel that if the notice had been mailed it would be effective even though it had not been received by the defendant. The clause in the policy authorizes the insurer to cancel the policy by giving notice “to the insured.” It is true the provision authorized the notice of cancellation to be made “in person or by mail”; but this does not say that if the notice is mailed it becomes effective even though it is never received by the insured. The general rule is to the contrary. Crouch, in his Cyclopedia of Insurance Law, Vol. 6, § 1440, after noting some conflict of authority as to whether a notice of cancellation sent by mail must be received before it is effective, says:
“And, as a matter of fact, the weight of authority seems to regard receipt of the notice as a condition precedent to cancellation.”
In Vance on Insurance, 2d ed., p. 778, it is said:
“The power to cancel, being derived only from the contract, must be exercised strictly in accordance with the terms of the contract. . . . and it must be given to the insured or his agent authorized to receive such notice.”
See, also, 29 Am. Jur. 264; 26 C. J. 138, 139, and cases collected in the annotations in 123 A. L. R. 1008.
We find no error in the record. The judgment of the court below is affirmed.
Hoch, J., not participating. | [
-16,
104,
-12,
-115,
-120,
96,
104,
-38,
83,
-96,
38,
83,
-23,
-61,
5,
111,
126,
45,
69,
122,
-42,
-93,
23,
58,
-42,
-5,
-47,
-59,
-71,
89,
-2,
-34,
76,
48,
10,
-41,
-90,
-64,
-123,
28,
-50,
12,
-87,
-12,
-39,
72,
-80,
121,
54,
75,
85,
15,
-5,
42,
25,
-61,
13,
44,
-21,
-87,
-47,
-79,
-54,
15,
127,
7,
49,
32,
-98,
71,
-8,
46,
-112,
49,
0,
-20,
115,
38,
-122,
100,
39,
-119,
8,
-90,
103,
50,
20,
-17,
-20,
-104,
38,
83,
15,
-90,
-106,
24,
59,
8,
-73,
-99,
125,
16,
23,
124,
-3,
21,
29,
108,
3,
-126,
-44,
-13,
-53,
112,
-103,
15,
-17,
19,
-78,
101,
-49,
-92,
93,
71,
118,
-37,
-114,
-100
] |
The opinion of the court was delivered by
Davis, J.:
Harold and Joyce Reifschneider appeal the dismissal of their action against the Kansas Lottery (Lottery) for one-half of the jackpot proceeds of a Kansas Cash Lotto game. The trial court ruled that an action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., was the Reifschneiders’ only remedy and that their action had not been filed within 30 days as required by K.S.A. 77-613(b). Our jurisdiction is based on K.S.A. 20-3018(c).
The facts in this case are for the most part undisputed. On November 26, 1994, appellant Joyce Reifschneider, at the time known as Joyce Eldridge, purchased a Cash Lotto ticket with a winning combination of numbers. Another winning ticket with the same combination of numbers was sold in Wichita for the same game. Appellant Harold Reifschneider presented the ticket purchased by Joyce, along with a claim form, on November 28, 1994. Because another vanning ticket had been sold, the Reifschneiders were paid $177,442, which represented one-half of the total jackpot. On November 22, 1995, the remaining winning ticket had still not been presented and the Reifschneiders, through counsel, sent a letter and a claim form seeking the unclaimed prize share. On April 17, 1996, the Executive Director of the Kansas Lottery through its attorney informed the Reifschneiders’ counsel by letter that the Lottery was denying their claim.
On November 26, 1996, the Reifschneiders filed a petition in the district court of Shawnee County for breach of contract. They alleged that the Lottery had breached its obligation to pay the full amount of the jackpot. The Lottery filed a motion to dismiss, claiming among other things that the KJRA was the sole avenue of relief available to the Reifschneiders and that even if their petition could be construed as a petition for judicial review, it was untimely as it was filed in excess of the 30 days following the agency decision. The Lottery also argued that pursuant to applicable statutes and regulations, the Reifschneiders were only entitled to one-half of the jackpot, notwithstanding the fact that the other half went unclaimed.
The district court noted that the Reifschneiders’ action was for breach of contract but determined that their sole avenue of relief was under the KJRA. The district court also determined that even if the Reifschneiders’ petition could be construed as a petition for judicial review under the KJRA, it was untimely. Accordingly, the district court granted the Lottery’s motion to dismiss.
In their appeal, the Reifschneiders contend that (1) an appeal-able order was not issued by the Kansas Lottery and (2) the letter denial by the Kansas Lottery of their claim denied them due process of law. As a part of this contention, they claim that the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., applies or, at the very least, minimal requirements of notice and an opportunity for hearing are required before a valid order may be entered denying their interest in the claimed property.
The Kansas Judicial Review Act
The trial court dismissed the Reifschneiders’ action on two bases: (1) that it was filed as a contract action rather than one pursuant to the KJRA and (2) that even if it was to be treated as an action under the KJRA, it was untimely because it was not filed within 30 days of the issuance of the agency’s final order. While the district court’s first basis for dismissal is dispositive of this case on appeal, we need to address its additional conclusion that the Reifschneiders’ claim, if considered a petition for review under the KJRA, was not timely filed.
The petition filed by the Reifschneiders on November 26,1996, in the District Court of Shawnee County is a breach of contract action under Chapter 60 of the Kansas Code of Civil Procedure. The district court properly dismissed the Reifschneiders’ petition on the basis that their sole remedy was an action under the KJRA, K.S.A. 77-601 et seq.
In Fowles v. Kansas State Lottery, 254 Kan. 557, 867 P.2d 357 (1994), Fowles alleged he purchased the winning ticket in a Kansas Cash Lotto drawing. The Kansas Lottery refused to pay Fowles the prize of $117,037 because he failed to produce the winning ticket. Fowles filed a breach of contract action against the Kansas Lottery. Among other conclusions, this court determined: “Plaintiff’s sole action against the Lottery here is based on judicial review of an agency action under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) K.S.A. 77-601 cf seq.-, he may not maintain a separate action for breach of contract.” 254 Kan. at 565.
Recently the Kansas Court of Appeals in a breach of contract action against Kansas State University relied upon our decision in Fowles in affirming the dismissal of the plaintiff’s action for failure to state a claim for which relief could be granted. See Douglas v. Kansas State University, 22 Kan. App. 2d 171, 915 P.2d 782 (1996). The court held that the KJRA was the exclusive remedy for the plaintiff: “The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.” 22 Kan. App. 2d at 174.
The Reifschneiders’ sole remedy for relief was an action under the KJRA. Their contractual action against the Lottery failed to state a claim for which relief could be granted and was properly dismissed by the district court.
The second basis for the district court’s dismissal was that the Reifschneiders’ contractual action, if considered as a petition for review under the KJRA, was not filed within 30 days of the Lottery’s order as required under K.S.A. 77-613(b). The Reifschneiders argue the letter denial of their claim was not a final order and that the action of the Lottery denied them due process of law.
K.S.A. 77-613(b) requires that “a petition for judicial review of & final order shall be filed within 30 days after sendee of the order.” (Emphasis added.) Two aspects of this statute are important. The first deals with the question of whether the letter denying the Reifschneider’s claim is a final order. The second inquiry deals with “service of the order” under the facts of this case.
Under the KJRA, a final order is characterized and defined as “final agency action.” K.S.A. 77-607(b)(l) and (2) provide:
“(1) ‘Final agency action’ means tire whole or a part of any agency action other than nonfinal agency action;
“(2) ‘Nonfinal agency action’ means the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be prehminaiy, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.”
Based upon the above definitions and the facts of this case, there is no question that the letter denial of the Reifschneiders’ claim to the other one-half of the jackpot proceeds of the Cash Lotto game was a final agency action within the meaning of K.S.A. 77-607(b)(1). The letter denial which is part of our record on appeal finally and completely resolves the Reifschneiders’ claim.
However, there is a problem with service of the final order on the Reifschneiders. K.S.A. 77-613(e) states in pertinent part:
“Seinice of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses. . . . Unless reconsideration is a prerequisite for seeking judicial review, a final order shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.” (Emphasis added.)
The letter sent by the Lottery denying the Reifschneiders’ claim was addressed to and sent to their attorney and no copy was sent to the Reifschneiders themselves. K.S.A. 77-613(e) requires that an agency order be sent to both the parties and their attorneys as evidenced by the use of the phrase “by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses.” (Emphasis added.) Moreover, the letter denial by the Lottery did not “state the agency officer to receive service of a petition for judicial review on behalf of the agency” as required by K.S.A. 77-613(e).
The notice provisions of K.S.A. 77-613(e) require strict compliance. Recently the Kansas Court of Appeals addressed this same issue in Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 13, 825 P.2d 172 (1991). The Court of Appeals concluded that unlike the provision in Chapter 60 relating to substantial compliance, Chapter 77 contained no such provisions and therefore required strict compliance. 16 Kan. App. 2d at 13. The Court of Appeals relied on our decision in Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983), wherein we stated that because Chapter 20 did not provide for substantial compliance of service in the same manner as Chapter 60, there must be strict compliance with its service requirements.
The Court of Appeals’ decision in Claus regarding strict construction is sound. K.S.A. 77-613(e) contemplates that a state agency’s final action may affect unrepresented parties and thus requires that the order be sent to the parties and their counsel, if any. In order that appellate rights may be preserved, K.S.A. 77-613(e) further mandates that the final order state the agency officer to receive service of a petition for judicial review on behalf of the agency. The 30-day period for filing a petition for judicial review under the provisions of K.S.A. 77-613(b) begins to run “after service of the order” by the agency in compliance with the notice requirements in K.S.A. 77-613(e).
In this case, the letter sent by the Lottery to the Reifschneiders’ counsel did not comply with K.S.A. 77-613(e). The 30-day period of time provided by K.S.A. 77-613(b) for the Reifschneiders to file a petition for judicial review under the KJRA has not elapsed, for the Lottery failed to serve its final agency action on the Reifschneiders according to the express provisions of K.S.A. 77-613(e). Thus, while the trial court was correct in dismissing the Reifschneiders contractual action, the second reason asserted by the district court for dismissal, viz, that the time for filing a petition for review under K.S.A. 77-613(b) had elapsed, was incorrect. The 30-day period begins only “after service of the order.” K.S.A. 77-613(b) and (e).
Affirmed. | [
-16,
-20,
-75,
-36,
8,
96,
43,
-102,
66,
-79,
55,
83,
105,
-34,
21,
127,
-73,
47,
-112,
104,
-46,
-93,
39,
-54,
86,
-77,
-39,
-51,
-67,
122,
-76,
86,
76,
32,
10,
-107,
102,
-30,
64,
18,
-114,
4,
10,
-32,
-39,
-62,
60,
43,
114,
19,
113,
10,
-13,
44,
29,
-41,
-19,
44,
123,
-71,
67,
-39,
-29,
7,
125,
21,
17,
6,
-66,
-121,
88,
111,
-108,
112,
0,
-56,
83,
-74,
-126,
53,
73,
-71,
12,
98,
98,
97,
17,
-83,
-11,
-120,
14,
87,
-115,
-91,
-78,
88,
99,
37,
-74,
-100,
85,
22,
41,
-4,
-21,
-44,
13,
-72,
10,
-114,
-112,
-125,
45,
118,
6,
75,
-33,
-91,
50,
113,
-55,
-32,
78,
87,
48,
27,
-66,
-98
] |
The opinion of the court was delivered by
Davis, J.:
This case presents the question of whether our holding in State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998), that knowledge of status as a habitual violator is a required element of driving while a habitual violator under K.S.A. 1997 Supp. 8-287 applies to the felony charge of driving while license suspended under K.S.A. 1997 Supp. 8-262(a)(1)(C). On petition for review, we agree with the Court of Appeals that Lewis applies and affirm.
On January 7, 1996, defendant Callie Thomas was stopped by a Kansas Highway Patrol trooper, An identification check revealed that her Oklahoma driver s license was suspended. Based on two prior Oklahoma convictions of driving on a suspended license, the defendant was charged with a severity level 9 nonperson felony offense of driving while suspended under 8-262(a)(1)(C).
The defendant appeared with court-appointed counsel and waived her right to a preliminaiy hearing, and the case was set for trial or plea. On the date of trial the defendant again appeared in person and with counsel, waived her right to a jury trial, and asked that the case proceed immediately with a bench trial. The court agreed to proceed with trial.
The State indicated that it might not be ready for trial because the trooper who arrested the defendant might not be available. The defendant indicated, however, that such testimony would not be necessary as she would stipulate to the evidence and argue the case on two questions of law.
The first question of law raised by the defendant involved our decisions in State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), and State v. Marshall, 252 Kan. 415, 845 P.2d 659 (1993). The defendant argued that under Jones, the State must establish that notice of suspension was deposited in the mail before a defendant can be convicted of driving while suspended under Kansas law. See Jones, 231 Kan. at 368. However, under Marshall, this court held that when dealing with an out-of-state suspension, the other state’s determination of the suspension was entitled to full faith and credit, and the State need only establish that the other state had in fact suspended the license. See 252 Kan. at 419-20. The defendant in Marshall contended that such disparate treatment violated her constitutional due process and equal protection rights. The second question of law raised by the defendant is whether her eligibility to apply for reinstatement under the provisions of K.S.A. 1997 Supp. 8-256 would negate her conviction.
The trial court resolved both of the legal issues against the defendant. She was convicted under the provisions of 8-262(a)(1) for a third conviction of driving while her license was suspended.
On appeal, the defendant again argued that the disparate treatment afforded out-of-state residents as the result of Jones and Marshall violated the Due Process, Equal Protection, and Privileges and Immunities Clauses of the United States Constitution. While the defendant’s appeal was pending, this court filed its decision in State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998). In an unpublished opinion, No. 78,381, filed May 15, 1998, the Court of Appeals correctly observed that if Lewis, which required the Státe to prove the defendant’s knowledge of his or her status as a habitual violator as an element of the offense, applied to the defendant’s felony charge of driving while suspended, her constitutional arguments need not be addressed. Instead, the Court of Appeals held, the issue was whether Lewis applied.
The Court of Appeals held that Lends applied to felony prosecutions under 8-262(a)(1) and the State was required to prove knowledge as an element of the felony offense of driving while a license is suspended under 8-262(a)(1). The Court of Appeals also found that because the defendant had two prior convictions for driving while suspended, the district court could presume knowledge, and affirmed the defendant’s conviction.
On review, we first address the question of whether Lewis applies. We also address the defendant’s argument that if Lends applies, the State failed to prove at trial the essential element of knowledge and the Court of Appeals acted as a factfinder when it determined that knowledge could be presumed from the defendant’s prior Oklahoma convictions.
Application of State v. Lends
The Court of Appeals was correct in holding that the analysis in Lewis applies to felony prosecutions under 8-262(a)(1). We determined in Lewis that knowledge of status as an habitual violator was an essential element of the felony offense of driving while a habitual violator under 8-287. State v. Lewis, 263 Kan. 843, Syl. ¶ 7. The Kansas Criminal Code generally requires intent as an element of crimes in Kansas. See K.S.A. 21-3201(a). While the crime at issue is not within the criminal code, our criminal code applies to crimes created by statute other than in the criminal code. K.S.A. 21-3102(3). There are exceptions to the general rule that intent is required: Where the legislature has specifically stated that an offense does not require intent, where the context of the statute makes it clear that intent is not an element, or where the offense is a misdemeanor or traffic infraction and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct. See K.S.A. 21-3201; K.S.A. 1997 Supp. 21-3204. However, we found in Lewis that none of these exceptions applied to a felony prosecution of driving while a habitual violator under 8-287. 263 Kan. at 856-58.
Much like the statute at issue in Lewis, the felony offense of driving while suspended under 8-262(a)(1) is not contained in our criminal code. However, our criminal code applies. See K.S.A. 21-3102(3). None of the statutory exceptions to the general rule of intent apply to the crime we now consider. See K.S.A. 21-3201; K.S.A. 1997 Supp. 21-3204. A person charged with a third offense of driving while suspended under 8-262(a)(1) is not charged with a misdemeanor or traffic infraction under Kansas law. The legislature has not specifically stated that such an offense does not require intent, and the context of the felony offense does not indicate a legislative purpose to impose absolute liability. Moreover, the context of the statute involved requires that the provisions of the Kansas Criminal Code apply. Therefore, we hold that a felony prosecution under 8-262(a)(1) requires as an essential element that the accused had knowledge that his or her license was suspended.
Proof of Knowledge
The Court of Appeals concluded that the trial court as finder of fact may presume that the defendant had knowledge that her license was suspended based upon her two prior Oklahoma convictions for driving while suspended. In Lewis, we determined that knowledge may be proved by circumstantial evidence, and that the finder of fact may, but is not required to, infer knowledge of status from the fact that notification of status was mailed to the accused at his or her last known address. 263 Kan. at 858-59. The same analysis is applicable in this case. As the finder of fact, the trial court may have made the inference that the defendant knew her license was suspended based on the evidence from Oklahoma showing that the defendant had been convicted twice previously of driving while suspended.
The defendant contends that the trial court did not make such a finding and, therefore, the Court of Appeals erred by sitting as a factfinder in this case. However, the trial court proceeded to trial at the defendant’s request based solely upon a stipulation between the defendant and the State. The defendant chose to argue purely legal issues, none of which concerned her lack of knowledge of her suspended status. There was no claim before the trial court that the defendant did not have knowledge of her suspended status in Oklahoma at the time she was stopped in Kansas. Rather, the circumstantial evidence available to the finder of fact supports the opposite conclusion. Under these circumstances, the finding of guilty is supported by the stipulation, and the record as a whole supports the conclusion of the Court of Appeals.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. | [
-16,
-22,
-11,
-100,
15,
64,
50,
-78,
-15,
-77,
100,
83,
41,
-54,
12,
121,
-21,
111,
117,
105,
-35,
-73,
103,
-63,
22,
-13,
-40,
-57,
-77,
93,
100,
-76,
76,
-80,
-54,
85,
6,
75,
-43,
-102,
-54,
6,
25,
-47,
88,
-102,
32,
35,
2,
15,
-11,
15,
-93,
110,
24,
-45,
45,
10,
75,
-91,
-64,
-48,
-101,
-107,
110,
6,
-77,
4,
-100,
-123,
-48,
47,
-100,
59,
8,
124,
115,
-126,
-126,
-12,
111,
-103,
-115,
102,
98,
96,
21,
-19,
-68,
-116,
46,
114,
-67,
-90,
-104,
81,
75,
4,
-105,
-35,
127,
54,
43,
-4,
-9,
5,
31,
120,
15,
-49,
-78,
-111,
79,
119,
-126,
-47,
-25,
97,
-112,
5,
-58,
-10,
94,
85,
120,
-101,
-49,
-76
] |
The opinion of the court was delivered by
Larson, J.:
This is the State’s appeal under K.S.A. 22-3601(b)(2) of the trial court’s determination that applying the public access provisions of the Kansas Offender Registration Act (Act), K.S.A. 22-4901 et seq., to 17-year-old Nathan Snelling’s conviction of indecent solicitation of a 15-year-old in violation of K.S.A. 21-3510(a)(1) constituted unconstitutional cruel and unusual punishment under the authority of State v. Scott, 24 Kan. App. 2d 480, 947 P.2d 466 (1997).
The result we now reach was foretold when we granted a petition for review of the Scott decision and reversed the Court of Appeals by holding under the facts of Scott, that
“the punitive effect of the registration and notification provisions of the Kansas Sex Offender Registration Act resulting from an interest in public safety are not so disproportionate to defendant’s violent, sexually motivated crime that such registration and public access is deemed inhumane, shocking, barbarous, or contrary to fundamental notions of human dignity so as to constitute cruel and unusual punishment.” State v. Scott, 265 Kan. 1, Syl. ¶ 4, 961 P.2d 667 (1998).
The 1997 Kansas Legislature amended the statutes in issue, effective July 1, 1997, to include “violent offenders” and the Act was directed in K.S.A. 1997 Supp. 22-4901 to be cited as the Kansas Offender Registration Act. The Scott reference to the Kansas Sex Offender Registration Act and our referral in this opinion to the Act apply to the same general provisions.
Snefling (1) questions our jurisdiction to hear this appeal, arguing the trial court’s ruling was not that the public access provisions of the Act were unconstitutional, (2) contends the trial court may determine that the public access provisions of the Act constitute cruel and unusual punishment so as to be unconstitutional under the facts of this case, and (3) argues the decision to restrict public access was based on substantial competent evidence.
These contentions require an understanding of the facts giving rise to this appeal.
Snelling’s post-July 1, 1997, actions and plea of no contest to a charge of indecent solicitation of a child over the age of 14, but under the age of 16, a K.S.A. 21-3510(a)(1) level 7 person felony, resulted from consensual sexual intercourse with 15-year-old, C.K. Snelling said he thought C.K. was older because she had worked at a theater where the minimum employment age was 16.
C.K. said she hoped the sex would “bring them closer together.” This was not achieved because she was removed from her foster residence and said sex with Snelling caused her to experience “lower self-esteem.” As to the sentencing, C.K. said “I never said no, so I don’t think he should get any bad sentence.”
Snelling received a 12-month prison sentence, suspended with 24 months of probation. He was ordered to register as a sex offender under the Act, but the trial court reviewed the Scott Court of Appeals’ opinion and said Snelling’s circumstances were less egregious than Scott’s, resulting in a holding that the public access provisions of the Act constituted cruel and unusual punishment. This resulted in an order that the registration “shall not be open to inspection by the public or subject to the provisions of the Kan sas Open Records Act.” It is from this order that the State has appealed.
We first consider Snelling’s argument that we do not have jurisdiction to hear the State’s appeal. This is a question of law over which our review is unlimited. See In re Marriage of Killman, 264 Kan. 33, 34, 955 P.2d 1228 (1998).
Snelling contends the Act was not found unconstitutional, but the trial court simply ruled that as to him the public disclosure provisions of K.S.A. 1998 Supp. 22-4909 should not be applied.
The State more logically argues the decision not to give effect to the public access provisions because they constitute cruel and unusual punishment is in fact a declaration that those provisions are unconstitutional.
Snelling’s attempt to justify his position by contending it is supported by State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), is misplaced. We upheld the registration requirements in Myers, but ruled the public disclosure provision, “K.S.A. 22-4909, imposes punishment in violation of the Ex Post Facto Clause.” 260 Kan. 669, Syl. ¶ 1. While the same disclosure provision may be in issue in both cases, Myers was granted relief because the crime for which he pled was committed prior to the enactment of the Kansas Sex Offender Registration Act. Our Myers opinion refused to address a cruel and unusual punishment argument which was raised for the first time on appeal. Myers is factually and legally distinguishable and does not apply to or benefit either Snelling’s or the State’s arguments in this case.
The sentencing court held K.S.A. 1998 Supp. 22-4909 constituted cruel and unusual punishment as it applied to Snelling. This can only be considered and treated as declaring K.S.A. 1998 Supp. 22-4909 unconstitutional.
K.S.A. 22-3601(b) states:
“Any appeal permitted to be taken from a final judgment of a district court in a criminal case shall be taken directly to the supreme court in the following cases:
“(2) any case in which a statute of this state or of the United States has been held unconstitutional.”
This is precisely what happened in this case. Our jurisdiction is mandatory and clearly easts to consider this appeal.
We will not repeat or restate our analysis and holding in State v. Scott, 265 Kan. 1, which is directly on point and compels reversal of the trial court unless we succumb to Snelling’s suggestion that trial courts have discretion as to whether to apply the public access provisions of the Act depending on the facts of each individual case.
Snelling points to the sexual contact in his case as being consensual, while in Scott, we had “a very violent crime after an acquaintance refused to have sex with him.” 265 Kan. at 9. This gives rise to the argument that the holding of Scott is limited only to its facts because we stated therein that “there may be cases where the degree of danger seems so minimal that imposition of the public disclosure provisions would seem unduly harsh, the facts of the present case do not clearly support this contention.” 265 Kan. at 10.
While this language does lend limited support to Snelling’s contention, the more important next sentence from our Scott decision is ignored. We said: “It is not for this court to overrule the legislative determination of the danger posed by sex offenders, particularly where the record, as in this case, does not warrant a finding that the offender poses no danger to society.” 265 Kan. at 10. This is not a holding that trial courts are granted the statutory authority to decide whether to apply the public disclosure provisions of the Act on a case-by-case basis. We expressed in Scott that it is troublesome that there is no difference in Kansas among the registration and public access provisions of the various sex offenses, but this does not in and of itself allow trial courts to pick and choose when and if the provisions of the Act, which clearly do not constitute cruel and unusual punishment, are applied.
In this case, Snelling, as was Scott, was specifically informed before he entered his plea that he would be subject to the provisions of the Act. This case, as was the situation in Scott, is limited to the single issue of whether the Act violates the constitutional provisions prohibiting cruel and unusual punishment. We continue to hold it does not. The crime for which Snelling was convicted, K.S.A. 21-3510, is specifically described as a “sexually violent crime” under K.S.A. 1998 Supp. 22-4902(c)(6).
There are no provisions in the Act allowing any different determination to justify the finding and order made by the trial court, which must be reversed.
With this holding, Snelling’s final argument that the trial court’s decision to restrict access was based on substantial competent evidence has no merit and need not be considered.
Our holding in Scott governs. The decision of the trial court that Snelling’s registration is not to be open to inspection by the public or subject to the provisions of the Kansas Open Records Act is reversed.
Reversed. | [
-112,
-22,
-36,
-100,
59,
98,
10,
22,
51,
-13,
-90,
83,
-85,
-54,
-124,
122,
-37,
39,
20,
104,
-35,
-73,
119,
-55,
-74,
-5,
-39,
-43,
-77,
79,
-18,
-11,
8,
-16,
10,
117,
38,
-118,
65,
-108,
-114,
-122,
-119,
-48,
-46,
4,
38,
111,
82,
70,
49,
63,
-77,
40,
30,
-61,
-23,
44,
-101,
109,
69,
-111,
-24,
23,
94,
18,
-93,
37,
-68,
5,
88,
38,
24,
57,
0,
-24,
115,
6,
2,
-11,
77,
-71,
-123,
98,
98,
33,
56,
-57,
-84,
8,
15,
95,
-83,
-90,
-104,
72,
98,
4,
-74,
-103,
100,
20,
47,
122,
-25,
76,
23,
108,
-119,
-53,
-100,
-111,
-49,
116,
-126,
105,
-5,
36,
16,
113,
-45,
-26,
64,
87,
112,
83,
-82,
-12
] |
The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an action for declaratory judgment brought by tire Kansas East Conference of the United Methodist Church, Inc., (the Conference) seeking an order that would dissolve Bethany Medical Center, Inc., (Bethany) and distribute its assets, which consist primarily of the hospital sale proceeds, to the Conference. After a bench trial, the district court entered judgment that Bethany should not be dissolved. On cross-claims between Bethany and the State of Kansas, the trial court ordered that Bethany use the proceeds to promote and improve the health of the citizens of Wyandotte County, Kansas, particularly the indigent. On its own motion, the trial court issued a permanent injunction prohibiting Bethany from amending its articles of incorporation to remove the Conference as the designated recipient of Bethany’s assets in the event of its dissolution. The Conference appealed from the decision permitting Bethany’s continued corporate existence and retention of the sale proceeds. Bethany cross-appealed from imposition of the permanent injunction. The case was transferred from the Court of Appeals to this court on the Conference’s motion, pursuant to K.S.A. 20-3017.
In its findings of fact, the district court stated:
“Bethany Medical Center is a not-for-profit charitable corporation, organized, existing, and in good standing in the State of Kansas. It is a tax exempt, § 501(c)(3) corporation, pursuant to the Internal Revenue Code of 1954. Furthermore, it is exempt from payment of real and personal property taxes pursuant to K.S.A. 79-201(b). Bethany is a general hospital, as contemplated by K.S.A. 65-425(a). It is a health care provider within the meaning of K.S.A. 40-3401 et seq.
“Bethany is a charitable organization pursuant to the Charitable Organizations and Solicitations Act [COSA], K.S.A. 17-1759 et seq., and is an ‘institution’ as contemplated by the Uniform Management of Institutional Funds Act, K.S.A. 58-3601 et seq. Bethany has several for-profit corporate subsidiaries, all doing business in the State of Kansas and in good standing. They are Medical Management, Inc., (MMI); Medical Professionals, Inc., (MPI); and General Collection Services, Inc., (GCSI).
“The [Conference] is a not-for-profit charitable corporation, duly organized, validly existing, and in good standing in tire State of Kansas. It is also a charitable organization as contemplated by COSA.
“On July 28, 1997, Bethany executed an asset purchase agreement with Galen [of Kansas, Inc.,] wherein Bethany agreed to convey most of its assets to Galen in return for a cash payment and assumption of certain liabilities by Galen. Bethany will retain cash and other marketable securities. It is estimated now that their value will be somewhere between $40-45,000,000. That figure is subject to final calculations and adjustments and the satisfaction of certain debts and obligations that Bethany has, including some industrial revenue bonds to Kansas City, Kansas.
“This court found, on September 26, 1997, that it was an economic necessity for Bethany to enter into the sale.”
Following the trial court’s decision that the hospital should be sold, the sale took place. It is not challenged on appeal.
The trial court also detailed the historical relationship between Bethany and the Conference. According to the district court’s account, the 1892 charter of Bethany declares that its medical purpose is
“ ‘to nurse and furnish medical treatment for the sick and wounded . . . and for that purpose to rent, build and maintain, in or near Kansas City, Wyandotte County, Kansas, a hospital in which indigent patients may be treated and nursed, under such rules and conditions as the Board of Directors may prescribe; but pay may be accepted from such persons as may be able and willing to rénder the same, and all receipts from that source shall be expended for the use and benefit of the hospital ...
Charitable contributions to support the operation of the hospital were solicited by Bethany, by a charitable foundation Bethany formed for the purpose of soliciting contributions, by the Bethany auxiliary, and by the Methodist church. “Bethany was not created for the benefit of the Methodist Church, but was one of its missions.”
Until 1972, the Conference elected a majority of the trustees to Bethany’s Board of Trustees (Board). In 1972, Bethany’s articles of incorporation were amended to provide that 12 of the 15 Board members should be elected by the outgoing Board and confirmed by the Conference. “The Kansas City District Superintendent of the Conference was designated by title to be a member of the Bethany Board.”
As the result of litigation which concluded in 1979 with the California Conference of the Methodist Church being held accountable for the activities of a Methodist-related retirement facility, the Conference became concerned about being held liable for Bethany’s activities. The Conference referred the question of legal separation from Bethany to a study committee. At the recommendation of the study committee, Bethany’s articles of incorporation were changed to erect a wall between it and the Conference: The requirement that Bethany’s Board be confirmed and ratified by the Conference was deleted; the Conference’s right to veto nominations for Bethany’s Board was deleted; and the condition that Bethany’s articles of incorporation and amendments to them were not effective until ratified by a majority of the Conference at its annual conference was lifted.
In time, the Conference put more distance between itself and Bethany, as is reflected in the following excerpt from the 1983 journal of the Conference:
‘“Bethany Medical Center, Inc., Kansas City, Kansas, [and others] . . . [are] wholly independent institutions from the Kansas East Annual Conference. The Annual Conference shall not elect or approve the entire Board of Trustees though it may from time to time elect less than a majority of its Trustees or send Conference visitors. The Annual Conference shall not monitor, supervise, or, otherwise, review any of the affairs or operations of these institutions. The Annual Conference may, from time to time, provide financial support to any of these institutions as a contribution. The Annual Conference shall have no legal responsibility for any of these institutions.’ ”
The Conference has donated no money to Bethany since 1975. In July 1980, the Conference passed along to Bethany two contribution checks totalling $25.
Bethany’s revenues for the year ending September 30, 1996, exceeded $73 million.
Bethany’s current articles of incorporation permit its Board to amend them without restriction. It also provides: “Upon dissolution of the Corporation and after payment of just debts and liabilities, all remaining assets shall be distributed to the Kansas City East Conference of the United Methodist Church . . . .”
Bethany’s corporate purpose is stated as follows in the current articles of incorporation:
“a. To establish and maintain an institution within or without the state where incorporated, with permanent facilities that include inpatient beds and medical services to provide diagnosis and treatment for patient and associated services such as, but not limited to, extended care, outpatient care, and home care;
“b. To carry on any education activities related to rendering care to the sick and injured, or to the promotion of health that, in the opinion of the Board of Trustees of Bethany Medical Center may be justified by the facilities, personnel, funds, and other requirements that are, or can be, made available;
“c. To promote and carry on scientific research related to the care of the sick and injured insofar as, in the opinion of the Board of Trustees of Bethany Medical Center, such research can be carried on, in, or in connection with the hospital; and,
“d. To promote and participate, so far as circumstances may warrant, in any activity designed and carried on to promote the general health of tire community.”
With regard to the sale of Bethany, the district court stated the following:
“Under the purchase agreement, Bethany has continuing rights and obligations. It has the right to enforce agreements with Galen to continue the operation of the hospital for at least three years after closing, and to continue Bethany’s indigent care policies for so long as Galen operates an acute care hospital in Wyandotte County, and they have certain rights of first refusal and repurchase options with respect to the hospital for a period of five years.”
The trial court’s final judgment consisted of three rulings:
(1) On the Conference’s petition for declaratory judgment, the trial court refused to order dissolution of Bethany and, thus, permitted Bethany to retain the proceeds of the sale.
(2) On the cross-claims of Bethany and the State, the trial court decided that Bethany’s use of the proceeds is restricted to improving the health of Wyandotte County citizens, particularly indigent ones.
(3) On its own initiative, the trial court permanently enjoined Bethany from displacing the Conference as the recipient of Bethany’s assets in the event of its dissolution.
The Conference appeals the first ruling; Bethany cross-appeals the third ruling. We first consider the issue raised in the Conference’s direct appeal.
This court’s review of the trial court’s conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The district court described the arguments made by the Conference and Bethany as being like ships, on two completely separate courses, passing in the night. The Conference would have had the trial court apply trust law, and Bethany relied on corporate law. The trial court expressly concluded that the law of corporations governs the question. On appeal, the Conference persists in its advocacy of trust law as governing this issue but gives no reasons why trust law rather than corporate law ought to be applied. Instead, the Conference devotes nearly all the argument section of its brief to convincing this court that proper application of trust law will lead to reversal of the judgment.
The Conference states what it seeks on appeal: “[T]he Conference respectfully submits that the. decision below must be reversed, arid that the Conference be found entitled to all of Bethany’s assets.” What the Conference centers its argument on, however, is not entitlement to the sale proceeds. Instead, it focuses on the trial court’s imposing restrictions on Bethany’s use of the proceeds. The restrictions, which were imposed in the trial court’s ruling on the cross-claims between Bethany and the State, were not a subject of the Conference’s petition for declaratory judgment, nor do they affect the Conference, nor are they even at issue on appeal. The theory behind the Conference’s focusing on an extraneous question seems to be, at least in part, to invoke principles of trust law with regard to the restrictions and then seamlessly turn them toward the question of entitlement to the sale proceeds. In this regard, the Conference broadly states that the trial court “correctly observed that the law and principles of charitable trusts govern the disposition of Bethany’s assets.” (Emphasis added.) The Conference then quotes a portion of the journal entry that pertains to the question of restrictions, not the question of entitlement.
The Conference does not address why corporate law, which was applied by the trial court, does not control. The district court found that Bethany is a not-for-profit, charitable corporation, organized, existing, and in good standing in the state of Kansas. It further found that Bethany is a charitable organization pursuant to the Charitable Organizations and Solicitations Act (COSA), K.S.A. 17-1759 et seq., The subject of Chapter 17 of the Kansas statutes is corporations, and Article 17 of the corporations chapter contains provisions specific to religious, charitable, and other organizations. K.S.A. 17-1701 to 17-1775. Articles 60 through 77 constitute the general corporation code. K.S.A. 17-6001 provides, in part: “[A]ny corporation organized under the laws of this state or authorized to do business in this state shall be governed by the applicable provisions of this code.” Thus, as a charitable corporation organized under the laws of Kansas, Bethany is governed by the Kansas Corporation Code.
The Conference directs the court’s attention to Restatement (Second) of Trusts § 348 Comment f (1957) as authority for applying the same rules to charitable trusts and charitable corporations. What the Comment actually states is that some of the rules applicable to charitable trusts are applicable as well to charitable corporations and some are not. In any event, the Comment has little or no relation to the circumstances of the present case because the Comment (and the Restatement section) contemplates a settlor or donor manifesting an intention to create a charitable trust and devoting property to accomplish the charitable purpose. Bethany’s history is replete with charitable giving, but it does not include the particular elements of a charitable trust, as defined in § 348. According to the Conference, Bethany was founded in 1892 by five Methodists as a part of “the Methodist hospitalization movement,” it was incorporated the same year, “[t]he Conference was the initial sponsor of the hospital,” the Conference “was a conduit through which individuals attending Methodist Churches in eastern Kansas could donate funds to help fulfill Bethany’s mission,” and “[cjountless donors, individual and corporate, have donated money throughout the years to the [Conference] for Bethany.” What the Conference seeks to convey to the court is that it is or is like a donor or settlor with the legal authority to reclaim its gift once the specified use is accomplished or obsolete. There is nothing in the record, however, to substantiate that construct. This is not a case in which a donor put money in a trust to be used for the creation and financial support of a hospital. Instead, it is a case where five Methodists incorporated in 1892 for the purpose of providing medical care in Wyandotte County, solicited charitable contributions, formed a foundation to solicit contributions, and accepted contributions from the Methodist church. Over the years, the Conference has been closely associated with Bethany and has been a significant benefactor, but there is no evidence of its acting as a trust settlor. Because Bethany is a corporate entity and held the title, Galen purchased the hospital from and paid Bethany for it. The theory which the Conference has formulated for its entitlement to the sale proceeds, therefore, involves disqualifying the Bethany corporation. The Conference seeks to do so on the ground that Bethany can no longer fulfill its purpose, which in the Conference’s construct is synonymous with the donor’s intent. There is no factual basis for what the Conference proposes, and, in addition, dissolution of Bethany is governed by die corporate statutes.
The Conference wants the hospital sale proceeds, which are held by the Bethany corporation. Thus, the Conference’s theoretical entitlement to the proceeds depends upon Bethany’s corporate dissolution. Corporate dissolution is governed by provisions of the corporation code, not by trust principles. The Conference seeks dissolution of Bethany, not just a declaration of legal rights.
The Conference also argues that a corporation must have a purpose and is prohibited from conducting any activity outside its stated purpose. The Conference quotes from the journal entry to show that the parties agreed and the district court found that Bethany’s primary purpose had been to operate a hospital. In selling the hospital to Galen, the Conference argues, Bethany “contracted away its purpose.” Bethany is forbidden by law to substitute other activities, and, therefore, the argument continues, the corporation must be dissolved. The Conference relies on Bankers’ Union v. Crawford, 67 Kan. 449, 73 Pac. 79 (1903), and Attorney General v. Hahnemann Hospital, 397 Mass. 820, 494 N.E.2d 1011 (1986).
The Kansas case turns on the peculiarities of fraternal benefit societies. Statutory and practical constraints on the charitable organizations involved in the present case are not comparable to those that controlled the activities of the fraternal benefit societies. It is clearly distinguishable on its facts, and it has no precedential value in the present case.
The Massachusetts case, like the present one, involved the sale of a hospital, which was operated by a charitable corporation, to a for-profit corporation. The Massachusetts court stated:
“The Attorney General argues that Hahnemann’s abandonment of its sole activity is, in effect, a dissolution requiring compliance with the § 11A procedures. Hahnemann responds that it does not intend to close its affairs, but instead will become a grant-making institution in accordance with its newly amended corporate purposes.
“There can be little doubt that, in the absence of amendment of its purposes, the abandonment by Hahnemann of the sole activity authorized by its articles of organization — maintaining a hospital — would render Hahnemann an empty shell, unable to fulfil its purposes. [Citation omitted.] In that instance, a dissolution proceeding under § 11A would be required.
“In this case, however, Hahnemann has amended its articles of organization to include ‘[establishing, maintaining, and supporting a charitable hospital or hospitals,’ and ‘a convalescent home or homes,’ and ‘participating in any activity that promotes the health of the general public.’ Hahnemann represents that it intends to function as a grant-making institution to fulfil these purposes. There is no suggestion that the amendments are invalid or that the newly stated purposes are unattainable. Hahnemann is not winding up its affairs, and need not do so as a matter of law.” 397 Mass, at 833.
In the present case, Bethany’s primary purpose was operating a hospital, but operating a hospital was not its sole activity. Even if it had been Bethany’s sole activity, however, the lesson from Hahnemann would be that the effect of the sale on Bethany is governed by the corporation code.
Hahnemann is an instructive case in other respects. In 1892, Hahnemann was organized as a nonprofit, charitable corporation for the purpose of establishing and maintaining a hospital in accordance with the principles of homeopathy. Mdien a hospital finally was built, more than 40 years later, the funds were supplied by an inter vivos charitable trust established by Mary Ida Converse for the support of a homeopathic hospital. Subsequent operation of tire hospital relied on contributions from the Converse trust income, and on three occasions the trust instrument was amended to provide payments out of trust principal for “maintenance, operation, expansion, and modernization.” 397 Mass, at 824. Thus, the issues presented by Hahnemann’s sale “require[d] a detailed examination of the relationship between the terms of the Converse trust and the articles of organization of the Hahnemann corporation.” 397 Mass, at 825. In Hahnemann, the money that made realization of the corporate objective possible was supplied by an independent charitable trust, the provisions of the trust instrument had been incorporated into the corporation’s by-laws, and trust principles were taken into consideration by the Massachusetts court. It concluded that the proposed hospital sale would not necessitate dissolution where the corporate articles had been amended to create new corporate purposes. In the present case, there is no independent charitable trust. Nonetheless, the Confer ence would have this court apply trust principles and conclude that the hospital sale necessitated dissolution where the corporate articles, without amendment, included other corporate purposes. The comparison of Hahnemann and the present case undermines rather than enhances the Conference’s position.
The Conference’s claim to the sale proceeds depends on Bethany’s dissolution. As the district court stated, “[cjorporations are creatures of statute” that “are bom and die through an operation of law.” K.S.A. 17-6805(a) provides that the method and proceedings for the dissolution of a corporation such as Bethany that has no capital stock “shall conform as nearly as may be possible to the proceedings prescribed by K.S.A. 17-6804, and amendments thereto, for the dissolution of corporations having capital stock.” In order to accomplish dissolution, a majority of the members of the governing body adopt a resolution to dissolve the corporation, and a certificate of dissolution is filed with the Secretary of State. The Secretary of State issues its own certificate. When that certificate is recorded in the office of the register of deeds of the county in which the corporation maintained its registered office, the corporation is dissolved. K.S.A. 17-6804(b). None of the steps in this process has been undertaken by Bethany.
In the absence of any inclination on the part of Bethany’s Board to dissolve the corporation, the Conference sought to have the district court intervene to judicially dissolve the corporation and distribute its assets — the proceeds from the hospital sale. Neither the Kansas case nor the Massachusetts case relied on by the Conference supports its desired result.
Bethany cites Cron v. Tanner, 171 Kan. 57, 229 P.2d 1008 (1951), in which a minority shareholder sought a writ of mandamus against the officers and directors of a banking corporation to compel retirement of certain stock, payment of a dividend on other stock, and repayment of a dividend and salary to a certain officer. Although Cron did not seek to have the court intervene to dissolve the corporation, the court made the following general observations:
“It is well settled that the directors of a corporation are charged with the duty of managing its affairs and only in cases of the greatest emergency are courts warranted in interfering with the internal operation of its affairs. It has been said that the fundamental principle of a corporation is that a majority of its stockholders have the right to manage its affairs so long as they keep within their charter and no principle of law is more firmly fixed in our jurisprudence than the one which declares that courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs. (Feess v. Bank, 84 Kan. 828, 115 Pac. 563, LRA 1915A, 606; Beard v. Achenbach Memorial Hospital Ass’n, 170 Fed. 2d 859.)” 171 Kan. at 62.
Bethany also cites Feess v. Bank, 84 Kan. 828, 115 Pac. 563 (1911), which this court relied on in Cron and the trial court relied on in the present case. Feess also involved a bank and a complaining minority shareholder. On an ex parte application and without notice to other stockholders and the directors, the trial court appointed a receiver, placed possession of the assets and business of the bank in him, and ordered him to wind up the bank’s affairs, “thus practically end[ing] its corporate existence.” 84 Kan. at 834. Following a discussion in which the lack of notice was disapproved, the court added that “the appointment that was made would not have been justified even if notice had been given.” 84 Kan. at 834. The court’s observations continued:
“The court was without authority to make the order, and indeed there was no application for such an order in die petition on which the order was granted. There is nothing in the statute which authorizes a court of equity to dissolve a corporation, or wind up its affairs, at the instance of a minority stockholder, and in the absence of express statutory authority it can not be done. For certain reasons and by certain methods the bank commissioner is authorized to have a receiver appointed and to wind up the affairs and business of a bank. (Laws 1908, ch. 14, § 1, Gen. Stat. 1909, § 487.) A corporation may be dissolved, its franchise taken away, its affairs wound up and its property distributed in an action brought by the state through its proper officer, but a court of equity can not interpose its authority to forfeit the franchise of a corporation, wind up its affairs or otherwise end its corporate existence at the instance of a stockholder.” 84 Kan. at 834-35.
Bethany states that the three circumstances which warrant a court’s intervening to dissolve a corporation are set out in K.S.A. 17-6812(a) (abuse or nonuse of corporate powers), K.S.A. 17-6804(d) (deadlock of two stockholder corporations), and K.S.A. 17-6901 (insolvency). None of these circumstances exists in the present case.
It is not a question of a lack of judicial authority so much as whether circumstances warrant dissolution of Bethany. The Conference insists that Bethany has no purpose now that the hospital has been sold and that the lack of purpose requires dissolution of the corporation. As we have seen, however, operating a hospital was the primary purpose, but only one of several health-care related purposes pursued by Bethany. Sale of the hospital, therefore, did not drain the corporation of purpose.
Within the context of its corporate purpose argument, the Conference contends not only that the sole purpose of Bethany was to operate the hospital but also that the district court erroneously applied the Uniform Management of Institutional Funds Act (UM-IFA), K.S.A. 58-3601 et seq., to alter that purpose. The district court invoked UMIFA, not to change the corporate purpose but, rather, to release any restrictions that may have been placed by donors on contributions Béthany has received during the many years of its existence. Although the Conference takes the position that it is the donor that funded Bethany’s activities, the record shows and the district court determined that the Conference was a conduit for contributions from many sources, including Methodist churchgoers, rather than the donor. The district court made no specific finding or findings about restricted donations; it simply invoked UMIFA to transform any restrictions there might have been that were rendered obsolete by the sale of the hospital. Even assuming for the purpose of argument that there were contributors who restricted donations they made to Bethany, those individually restricted donations are not to be confused with the purpose of the charitable corporation of Bethany. Thus, the district court’s application of UMIFA is not relevant to the question of whether Bethany or the Conference should receive the proceeds of the sale. The district court correctly refused to dissolve Bethany and distribute its assets to the Conference.
We next turn to the issue raised in the cross-appeal: Did the district court abuse its discretion in permanently enjoining Bethany from amending its articles of incorporation to remove designation of the Conference as recipient of Bethany’s assets upon its dissolution? The granting of injunctive relief involves the exercise of judicial discretion and will be reviewed by this court for abuse of discretion. South Shore Homes Ass’n v. Holland Holiday’s, 219 Kan. 744, 751, 549 P.2d 1035 (1976). A party that asserts abuse of discretion bears the burden of showing it. State v. Harris, 262 Kan. 778, 785, 942 P.2d 31 (1997). Here, Bethany asserts that die district court abused its discretion and, in doing so, violated Bethany s constitutional right to due process. In this circumstance, it has been said that
“there is a greater need for articulation by the trial judge of the reasons for his ‘discretionary’ decision. Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power. In its practical application in this state, judicial discretion is substantially synonymous with judicial power.” Saucedo v. Winger, 252 Kan. 718, 731-32, 850 P.2d 908 (1993).
The injunction in this case was entered by the trial court on its own initiative. The final two paragraphs of the journal entry state the trial court’s reasons:
“Furthermore, this court is not convinced that Bethany should be allowed to amend its [articles of incorporation] to delete the [Conference] as the resultant beneficiary upon the dissolution of the corporation. This court believes this for two reasons. First, one cannot ignore eighty years of history. Without the [Conference] there would be no Bethany Hospital today. Countless donors, individual and corporate, have donated money throughout the years to the [Conference] for Bethany. During its corporate infancy, the [Conference] shielded and nurtured the hospital through good and bad times. Their gifts have made Bethany possible and should continue to be used for health care.
“Secondly, it must be assumed that the gifts made to Bethany [through] the [Conference] were made with the implied knowledge that in the event that Bethany dissolved, all of the net assets would revert to the [Conference], See Bogert, Trusts & Trustees § 362. This is especially true of gifts made prior to 1982. Since there is no way to determine what portion of Bethany’s assets were created through such gifts, the [Conference] should continue to be the reversionary beneficiary of Bethany’s assets upon the event of its dissolution.”
Bethany first contends that imposition of the injunction violated its due process right to notice and a hearing. It is axiomatic that the “[b]asic elements of procedural due process of law are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” In re Marriage of Soden, 251 Kan. 225, Syl. ¶ 4, 834 P.2d 358 (1992). In the present case, there is no dispute that the Conference did not petition the trial court for an injunction, the trial court did not advise the parties that it was contemplating imposing an injunction, and the trial court did not hear any evidence on the question. Bethany had neither notice nor opportunity to be heard before the injunction was imposed. The sum of these factors equals a denial of due process.
The 5th and 14th Amendments to the United States Constitution guarantee that no person shall be deprived of life, liberty, or property without due process. The Conference argues that Bethany had no protected interest that would require notice and an opportunity to be heard. The Conference cites Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), for the proposition that only definite liberty or property interests are protected. Roth was a first-year, untenured college teacher who challenged the decision not to rehire him for the next academic year. The Supreme Court held that Roth had no interest protected by due process. However, with regard to property interests, the Supreme Court stated:
“Property interests, of course’, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 U.S. at 577.
In the present case, Bethany argues that its property interest was created by the Kansas Corporation Code and that the dimensions of the interest include controlling the operations of the corporation and having freedom to alienate its property upon dissolution. K.S.A. 17-6301(a) provides that a corporation “shall be managed” by its board of directors, and K.S.A. 17-6805a provides:
“Notwithstanding any provision of law or the articles of incorporation, the articles of incorporation of each nonprofit corporation that qualifies otherwise for an exemption under section 501(c)(3) of the internal revenue code of 1954, as amended (26 U.S.C. § 501(c)(3)), shall be considered to contain the following provision:
“Upon the dissolution of the corporation, the board of directors or governing body of the corporation, after paying or providing for the payment of all liabilities of the corporation, shall dispose of all the assets of the corporation exclusively: (1) In accordance, with the purposes of the corporation, in the manner determined by the board of directors or governing body, or (2) to organizations qualified for exemption under section 501(c)(3) of the internal revenue code of 1954, as amended (26 U.S.C. § 501(c)(3)), and specified by the board of directors or governing body. Any assets of the corporation not so disposed of shall be disposed of by the district court of the county where the principal office of the corporation is then located, exclusively for the purposes or to the organizations provided above, as determined by the court.”
The statutes, in particular 17-6805a, seem to create a definite property interest in the corporation’s governing body’s determining how the corporate assets are to be distributed. That statutorily created interest is in sharp contrast with the terms of Roth’s appointment, which “secured absolutely no interest in re-employment for the next year.” 408 U.S. at 578. Bethany has a property interest sufficient to require that it be given notice and a hearing before it could be deprived of the right to determine disposition of its assets. “It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394[, 30 L. Ed. 118, 6 S. Ct. 1132] (1886).” First National Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.15, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978).
The Conference argues:
“Bethany should have been aware of the possibility that the trial court would enjoin it from amending its [articles of incorporation] so as to remove the Conference as the recipient of its corporate assets upon dissolution. A portion of those assets are the very subject of this litigation, and it was entirely reasonable and predictable that the trial court would seek to preserve the rights and interests of the parties pending appeal.”
In this regard, the Conference relies on Penthouse Intern., LTD. v. Barnes, 792 F.2d 943, 950 (9th Cir. 1986). To take advantage of some serendipitous publicity, Penthouse magazine wanted to republish photographs of Barnes, using her name rather than the pseudonym under which they originally appeared. In the magazine’s declaratory judgment action, Barnes raised affirmative defenses and sought injunctive relief in her counterclaim; thus, Penthouse was aware of the possibility and had an opportunity to be heard on the issue of a mandatory injunction against publication using Barnes’ name. The appellate court affirmed that part of the judgment in which the district court ordered the magazine not to republish the photographs using Barnes’ name. The appellate court vacated the order prohibiting the magazine from publishing the photographs at all because the district court had heard no evidence on the subject. The lessons from Penthouse are two sides of the same coin — where an enjoined party has had notice and an opportunity to be heard on the question of injunctive relief, it may be included in a declaratory judgment and vice versa. Thus, it offers no support for the Conference’s position. The Conference asserts that Bethany should have anticipated an injunction because the corporate assets were the subject of the litigation. The argument, however, fails to take into account that the relief was unrequested and unbriefed and was not the subject of an evidentiary hearing; therefore, it was reasonably unforeseen.
The Conference also argues that the trial court had statutory authority in K.S.A. 60-901 for its sua sponte imposition of a permanent injunction as one aspect of the relief granted in the final judgment. Although K.S.A. 60-905(a) requires notice and an opportunity to be heard before imposition of a temporary injunction, the Conference’s argument continues, 60-901 does not have similar requirements for permanent injunctions. K.S.A. 60-903 provides that a restraining order may issue upon ex parte application, but that tire application “shall also be considered as an application for a temporary injunction” and that the restraining “order shall remain in force until the hearing on the application for a temporary injunction.” K.S.A. 60-905(a) provides that “[n]o temporary injunction shall be granted until after reasonable notice to the party to be enjoined and an opportunity to be heard.” There is no section that provides procedure for a permanent injunction, but we know from 60-901 that an injunction may be the final judgment in an action. In this three-tiered scheme, an application for injunctive relief inevitably will result in notice and an opportunity to be heard before a temporary injunction may be imposed and, therefore, certainly before a permanent injunction would be ordered. Thus, the absence of express statutory requirements for notice and hearing simply reflects the absence of a need to spell out requirements that ought to be fulfilled during the orderly processing of the case as a whole. In the present case, there was no application for injunctive relief, and the possibility of injunctive relief was not considered in the ordinary course of fhe proceedings. The statutory scheme was bypassed by the trial court’s sua sponte imposing an injunction as a part of the final judgment. Contrary to fhe Conference’s contention, the statutes do not authorize issuance of a permanent injunction without notice to or opportunity for the enjoined party to be heard. In addition, the Conference’s argument ignores the constitutional requirement of notice and an opportunity to be heard.
In the present case, the trial court stated that its authority for issuing the injunction on its own initiative lay in the declaratory judgment statutes. In K.S.A. 60-1701, K.S.A. 60-1704, and K.S.A. 60-1707 the trial court found “authority and obligation ... to remove any uncertainty that the [Conference] and Bethany might have with respect to gifts made to Bethany through the Methodist Church prior to their ‘separation.’ ” Examination of those provisions reveals no authority for the trial court’s acting on its own initiative without notice to the parties and without affording an opportunity for the enjoined party to be heard. Bethany suggests that the trial court should have looked to K.S.A. 60-1703, which provides:
“Further relief based on a declaratory judgment may be granted whenever necessary or proper. The application shall be by petition to a court having jurisdiction to grant the relief. If the application is sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment, to show cause why further relief should not be granted.” (Emphasis added.)
It may be noted that the federal counterpart to K.S.A. 60-1703, 28 U.S.C. § 2202 (1994), was cited by the Ninth Circuit Court of Appeals in Penthouse as the source of authority for the trial court’s enjoining the publication from using Barnes’ name.
Bethany cites Sampel v. Balbernie, 20 Kan. App. 2d 527, 530-31, 889 P.2d 804 (1995), for the proposition that the party seeking injunctive relief has the burden of showing (1) a reasonable probability of irreparable injury, (2) an inadequate remedy at law, (3) relative hardship greater for the movant than for the adversary, and (4) compatibility with public interest. In Sampel, the Court of Ap peals relied on Mid-America Pipeline Co. v. Wietham, 246 Kan. 238, 242, 787 P.2d 716 (1990). Taken together, these cases teach that injunctive relief is equitable in nature and that a substantial showing is required before a court is warranted in ordering a party to do or refrain from doing a certain act. With the trial court’s including an injunction in the journal entry of judgment in the present case without notice to the parties, there was no opportunity for introduction of evidence for or against it. On cross-appeal, Bethany contends that the record lacks sufficient evidence on the factors identified in Sampel and Mid-Ainerica Pipeline. We agree.
Finally, Bethany argues that the injunction is contrary to public interest in two ways. First, it usurps the power granted to the corporation’s Board by the legislature. Second, it “deprives the citizens of Wyandotte County of charitable funds meant for their benefit.” The second contention is a hollow one. Without the injunction, Bethany could designate a recipient that would spend the assets outside the county. The Conference contends that the injunction protects public interest by ensuring that the charitable corporation honors the intent of its benefactor. As we have seen, though, the “donor’s intent” that seems so obvious to the Conference is not substantiated in the record. It is apparent that the Conference wants control of the proceeds from the hospital sale, but there is no evidence from which it reasonably may be inferred that contributions were made with the intent that they would be returned if Bethany’s operation of a hospital became impracticable.
The resolution of Bethany’s cross-appeal is affected by our decision in the direct appeal by the Conference. We have approved the district court’s refusal to dissolve Bethany, ruling that a corporation is a creation of statute and dissolution is controlled by the Kansas Corporation Code. Notwithstanding that ruling, the district court proceeded to control the future operation of Bethany by enjoining it from amending its articles of incorporation. In our earlier discussion affirming the trial court’s refusal to dissolve Bethany, we quoted from Cron v. Tanner, 171 Kan. at 62, the well-settled rule that absent “the greatest emergency,” courts are not warranted in interfering with the internal operation of a corporation. We further noted in Cron the absence of the statutory requirements that warrant a court’s intervening to dissolve a corporation. Here, as in Cron, we are asked to approve a district court’s acting as a court of equity to substitute its judgment for that of the officers or board of directors of a corporation. In Cron, we denied such a request by responding:
“It is not the function of the court to manage a corporation nor substitute its own judgment for that of the officers thereof. It is only when the officers are guilty of willful abuse of their discretionary power or of bad faith, neglect of duty, perversion of the corporate purpose, or when fraud or breach of trust are involved, that the courts will interfere.” 171 Kan. at 64.
Here, the district court interfered in the internal affairs of Bethany by enjoining it from amending its articles of incorporation as to the distribution of its assets upon dissolution. Based upon the factual record in this case, the district court’s order so enjoining Bethany was a denial of due process, not warranted, and constituted an abuse of discretion. We affirm the district court’s order refusing to dissolve Bethany and reverse its order enjoining Bethany from amending its articles of incorporation.
The judgment of the district court is affirmed in part and reversed in part. | [
-108,
-24,
-43,
108,
8,
-29,
32,
-118,
67,
-94,
55,
83,
-95,
-54,
21,
47,
34,
61,
-47,
113,
-41,
-79,
7,
-95,
-42,
-13,
121,
69,
-80,
95,
-26,
-52,
77,
32,
43,
-11,
-122,
-117,
-63,
28,
-114,
9,
-118,
-60,
85,
-53,
-76,
59,
18,
75,
113,
28,
-7,
9,
28,
-57,
9,
40,
107,
45,
89,
-8,
-72,
-123,
95,
23,
33,
36,
16,
99,
-56,
127,
-104,
113,
105,
-24,
83,
38,
66,
52,
99,
-19,
44,
46,
99,
35,
16,
-3,
120,
-100,
15,
23,
-115,
-27,
-126,
89,
-32,
11,
-73,
21,
116,
22,
8,
124,
-18,
-106,
-36,
60,
-127,
-118,
-60,
-109,
-113,
125,
-104,
-121,
-9,
-121,
32,
17,
-120,
54,
94,
-42,
48,
19,
126,
-80
] |
In a letter dated February 9, 1999, to Carol Green, Clerk of the Appellate Courts, respondent Jeffrey Lynn Baxter, of Leavenworth, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1998 Kan. Ct. R. Annot. 242).
At the time respondent surrendered his license, there were three docketed complaints against him under investigation and one docketed complaint pending before the Review Committee of the Kansas Board for Discipline of Attorneys. Further, respondent was administratively suspended from practicing law in Kansas pursuant to this court’s order of suspension dated November 1998 for his failure to obtain the requisite number of hours of continuing legal education for the compliance period of July 1, 1997, through June 30, 1998.
In addition, respondent was serving á 2-year supervised probation while imposition of discipline was suspended pursuant to this court’s decision in In re Baxter, 262 Kan. 555, 940 P.2d 37 (1997). Edward Chapman, the supervising attorney, has written to the Disciplinary Administrator’s office requesting to be relieved of his duties imposed by the court’s decision as respondent no longer practices with the firm and is not being supervised.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Jeffrey Lynn Baxter be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It is Further Ordered that the Clerk of the Appellate Courts strike the name of Jeffrey Lynn Baxter from the roll of attorneys licensed to practice law in Kansas.
Dated this 25th day of February, 1999.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1998 Kan. Ct. R. Annot. 246). | [
-80,
-23,
-108,
12,
27,
96,
50,
-65,
89,
-45,
103,
83,
-19,
-49,
4,
105,
-41,
57,
85,
121,
-59,
-74,
118,
65,
36,
-1,
-47,
-44,
-78,
127,
-28,
-67,
73,
56,
10,
-43,
70,
-56,
-63,
-104,
-58,
3,
9,
-4,
82,
1,
56,
41,
82,
15,
49,
30,
-77,
110,
63,
-119,
-24,
44,
95,
-51,
81,
-111,
-102,
21,
124,
17,
-93,
5,
24,
-115,
88,
63,
-120,
58,
1,
-8,
51,
-74,
-126,
-12,
79,
-5,
12,
119,
98,
35,
1,
-25,
-68,
-84,
78,
56,
29,
-29,
-103,
88,
105,
73,
-106,
-3,
101,
18,
43,
-4,
97,
69,
29,
-20,
14,
-53,
-44,
-77,
78,
127,
-50,
-103,
-21,
-57,
16,
85,
-108,
-26,
76,
-45,
114,
19,
-98,
-75
] |
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Patrick S. Levy, of Lawrence, an attorney admitted to the practice of law in Kansas.
Complaints filed in Cases Nos. A6422, A6434, and A6755A against the respondent alleged that the respondent violated MRPC 1.1 (1998 Kan. Ct. R. Annot. 279) (competence); MRPC 1.3 (1998 Kan. Ct. R. Annot. 288) (diligence); MRPC 1.4(a) and (b) (1998 Kan. Ct. R. Annot. 296) (communication); MRPC 3.3 (1998 Kan. Ct. R. Annot. 354) (candor toward the tribunal); MRPC 4.1 (1998 Kan. Ct. R. Annot. 366) (truthfulness in statements to others); and MRPC 8.4 (1998 Kan. Ct. R. Annot. 386) (misconduct).
The complaints were heard before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared by and through his attorneys James E. Martin and Jerry K. Levy. The Disciplinary Administrator appeared by and through Ed Van Pet-ten, Deputy Disciplinary Administrator. The essential facts as determined by the panel and the panel’s recommended discipline are not in dispute. Respondent did not file exceptions to the hearing panel report in which the panel by clear and convincing evidence unanimously found:
“FINDINGS OF FACTS
“Count I-Case No. A6422
“2. On June 6, 1995, a divorce action was filed in the District Court of Douglas County, Kansas, captioned ‘In the Matter of the Marriage of Jean M. Palmateer, Petitioner, and Robert C. Palmateer, Respondent, Case No. 95D-379, Division No. III.’ Attorney for the petitioner was Margie Wakefield, a practicing attorney in Douglas County, Kansas. On June 15, 1995, Patrick S. Levy entered his appearance as attorney of record for the respondent of the divorce action, Mr. Robert C. Palmateer.
“3. On August 15, 1995, at 4:00 p.m. a hearing was held before the Honorable Jean F. Shepherd, District' Judge, Division III, wherein the issue of divorce only was heard by the court and a divorce was granted. At that time, the court set the divorce for hearing on all post divorce matters including ‘child custody, visitation and support, division of property and debt.’ This hearing was set for October 26, 1995, at 9:00 a.m. Both respondent and his client were present at the hearing on August 15, 1995, at the time the matter was set for October 26, 1995.
“4. The hearing of August 15, 1995, was journalized prior to the hearing and the hearing date of October 26, 1995, was handwritten in the final order after execution by respondent, was then approved by the court and filed in the District Court of Douglas County, Kansas.
“5. Respondent at the time of the hearing on August 15, 1995, did enter the date of the hearing to be held on October 26, 1995, in his pocket calendar, making the notation on that date ‘Palmateer, 9:00 o’clock.’
“6. On Tuesday, October 24, 1995, Patty Hobbs, Administrative Assistant to Judge Shepherd, initiated a conference call while Ms. Wakefield was present in her office to contact the respondent to determine if the Palmateer matter would go to trial on October 26, 1995, as scheduled. At that time, Mr. Levy indicated that he needed to discuss details with his client and that he would advise Ms. Hobbs on October 25, 1995, of the status of the case.
“7. On October 25, 1995, Ms. Hobbs again contacted Mr. Levy while Ms. Wakefield was present in her office. At that time Mr. Levy indicated that he thought most of the issues were resolved in the divorce and that there probably would not need to be a hearing on October 26, 1995. He also, at the time, indicated that if a hearing was necessary, he would be asking for a continuance. Mr. Levy [was] informed by Ms. Hobbs at that time, that he would have to appear in person to request the continuance. Respondent at that time said he would appear to request a continuance.
“8. On Wednesday, October 25, 1995, Mr. Palmateer contacted the respondent and the respondent at that time informed Mr. Palmateer that he did not need to appear in court on October 26, 1995. Thereafter, on that evening, while traveling to meet a client in his roommate’s car, the vehicle he was driving broke down. It took several hours for respondent to obtain assistance and to return to Lawrence. He then slept through the Palmateer trial setting and did not arrive at his office until after default judgment had been entered. Respondent admits that under the circumstances he had forgotten the Palmateer setting.
“9. On the morning of October 26, 1995, Judge Shepherd called the Palmateer matter for hearing. Neither Mr. Levy or Mr. Palmateer was present. Ms. Wake-field and her client did appear. At that time, based on the record, a default judgment was granted in favor of the petitioner, Ms. Palmateer.
“10. On October 26, 1995, at 3:48 p.m., a Motion To Set Aside Default Judgment was filed by respondent. Within the body of the motion respondent pleaded the following:
‘3. Default was taken without any lack of diligence, fault or neglect on the part of the Respondent or of Respondent’s attorney.
‘A. Respondent has a meritorious defense to Petitioner’s alleged cause of action herein.
‘5. There has been no Notice of Hearing filed in this matter concerning the October 26, 1995, hearing. Neither has any application for default judgment been served upon Respondent in accordance with K.S.A. 60-255.’
The Motion to Set Aside Default Judgment was deified.
“11. The above facts show that respondent lacked diligence and promptness in his representation of a client; and has engaged in conduct that adversely reflects on the respondent’s ability to practice law.
“COUNT II — Case No. A6434
“12. That Jerry K. Levy was hired by Ward A. Thompson and Frances S. Wisdom to file lawsuits against the City of Lawrence and various law enforcement officials. Both clients were complaining of actions from the same incident.
“13. Subsequent to the filing of the two (2) separate lawsuits some defendants filed a motion for partial judgment on the pleadings. Plaintiffs’ response was due November 8, 1993.
“14. Eight (8) days after the response was due (on November 16, 1993) a request to extend the deadline to November 18, 1993, was filed. This request was granted. The request was made by Patrick S. Levy. No Response Brief was filed.
“15 At that time Patrick S. Levy was practicing law in the State of Kansas on a temporary permit. Jerry K. Levy was his supervising attorney, and Patrick S. Levy was practicing law in the office of Jerry K. Levy.
“16. On January 3, 1994, Judge Kathryn Vratil sustained the defense motion as unopposed, due to the fact that no response had been filed by plaintiffs. This response appears to have been the responsibility of [Patrick Levy].
“17. On January 6, 1994, Jerry K. Levy did send a fax message to Judge Vratil’s office which stated:
‘Re: Your order for judgement on the pleadings. You apparently missed our Memorandum in Opposition which was filed timely on 11/18/93.’
“Attached to the fax message was a copy of a memorandum, which was not file-stamped or signed by any party. Patrick S. Levy’s secretary confirmed that the Response Brief was done by November 18, 1993, and so did the computer log. Jerry Levy’s partner, Ron Schneider, also confirmed the Response Brief had been completed timely. However, Jerry K. Levy had not reviewed and signed the Response Brief for filing as he usually did. It was believed that the Response Brief had been left with the office staff to be taken to the common mail for the building and mailed.
“18. The court then responded by faxing to Jerry K. Levy an Order To Remedy requesting that plaintiffs’ counsel submit to the court a signed, file-stamped copy of the memorandum. Instead, on January 10, 1994, Jerry K. Levy filed a Motion To Reconsider Or In The Alternative Relief From The Judgment. In the motion, he requested that the court reconsider its order dated January 3, 1994, granting the defendant’s Motion For Summary Judgment based upon the fact that either the plaintiffs had timely complied or made a substantially diligent effort at compliance.
“19. Jerry K. Levy at that time stated that plaintiffs had mailed their response in a timely manner but, for reasons beyond their control, the memorandum never arrived at the court. This motion was overruled.
“20. Subsequently, on February 18, 1994, [Jerry K. Levy], as counsel for plaintiffs, filed Motion And Memorandum To Reconsider, claiming therein that the memorandum was mailed in a timely fashion. The court likewise overruled plaintiffs’ motion. Subsequent to the receipt of the fax from Jerry K. Levy on January 6, 1994, Judge Vratil corresponded with counsel for the defendants, being four (4) in number, to determine if any had received a copy of the memorandum alleged to have been filed with the court on November 18, 1993. At that time, all defense counsel verified that they, in fact, had not received copies of the memorandum alleged to have been filed by [Jerry K. Levy], until the filing of a subsequent motion in January 1994. [Jerry K. Levy] was aware of this prior to filing the motion on February 18, 1994. It is not clear whether Jerry K. Levy’s office staff did not take the Response Brief to the common building mail location or whether the common building mail service never mailed the Response Brief to the Court and to counsel, but it is likely that one or the other occurred.
“21. That subsequent to the initial filing of both lawsuits, [Jerry K. Levy] turned the prosecution of the matters over to his son, Patrick S. Levy, to handle. Patrick S. Levy, as previously stated, was practicing on a temporary permit to be supervised by Jerry K. Levy.
“The facts set forth in Count II present clear and convincing evidence of a violation of Model Rule of Professional Conduct 1.3 [by respondent, Patrick S. Levy].”
The professional responsibility of Jerry K. Levy in representing his clients is not before this court.
“COUNT III — Case No. A6755
“23. That in April 1995, Patty Klingler hired the respondent in a post divorce matter to revive judgments for back child support indebtedness.
“24. It was agreed that Klingler would pay respondent $250.00 for his services regarding obtaining a revivor for back child support in the amount of approximately $14,000.00.
“25. Respondent did the necessary research, filed pleadings, met with his client and attended a hearing before the District Court of Douglas County, Kansas, and prevailed with the motion filed, obtaining the judgment. No Journal Entry was filed regarding the hearing by the respondent. Respondent did not thereafter notify his client of the status of the Journal Entry, and the fact that it had not been filed.
“26. Klingler requested a portion of her money back to enable her to hire another lawyer; however, respondent refused the requested refund.
“27. Eventually, Klingler obtained her file from the respondent’s office and turned it over to another attorney to finalize the actions necessary.
“The facts set forth in Count III show clear and convincing evidence of a violation of Model Rules of Professional Conduct 1.3 and 1.4(a).
“CONCLUSIONS OF LAW
“As to Count I, Respondent’s conduct violates [MRPC 1.3],
“As to Count II, Respondent’s conduct violates [MRPC 1.3],
“As to Count III, Respondent’s conduct violates [MRPC 1.3 and MRPC 1.4(a)].
“RECOMMENDED DISPOSITION
“The Panel was somewhat troubled that the Respondent did not testify in his own behalf, although he attended the hearing with his attorney. Instead, the Respondent’s father presented the mitigation testimony. With this in mind, the Panel finds the following:
1. Aggravating factors.
(d) Multiple offenses.
2. Mitigating factors.
(a) Absence of a prior disciplinary record.
(f) Inexperience in the practice of law.
“The Panel might have found other mitigating factors had the Respondent testified.
“. . . It is the view of the Panel that this type of conduct typically does not warrant suspension from the practice of law, absent more aggravating factors than were presented in this hearing. There was a paucity of evidence presented here and the panel must consider the case as presented.
“It is the recommendation of the Panel that the Respondent be publicly censured by the Supreme Court.
“Costs should be assessed against the Respondent in an amount to be certified by the Disciplinary Administrator.”
We find there is clear and convincing evidence establishing the violations found by the panel. We agree with the panel’s recommendation concerning disposition. In so doing, we adopt the findings and recommendation of the panel as set forth above.
It Is Therefore Ordered that Patrick S. Levy be disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (1998 Kan. Ct. R. Annot. 203) for his violation of the Model Rules of Professional Conduct.
It Is Further Ordered that this order be published in the official Kansas Reports and that costs herein be assessed to the respondent. | [
-112,
-56,
-39,
93,
-88,
-29,
58,
36,
121,
-45,
103,
83,
-19,
-17,
0,
105,
-14,
45,
80,
105,
69,
-74,
118,
64,
-26,
-9,
-16,
93,
-70,
95,
-28,
-2,
73,
-80,
-118,
-43,
6,
-54,
-105,
20,
-122,
2,
-117,
-12,
-38,
-64,
-80,
109,
19,
13,
49,
126,
-13,
44,
55,
107,
40,
44,
29,
-17,
81,
-111,
-97,
-107,
126,
2,
-78,
-124,
86,
71,
80,
47,
24,
56,
32,
-24,
51,
-90,
-94,
118,
95,
-23,
9,
102,
98,
3,
9,
-91,
-32,
-116,
110,
21,
29,
7,
-101,
89,
65,
-128,
-74,
-100,
116,
82,
35,
-2,
-31,
5,
55,
108,
10,
-114,
-108,
-109,
79,
87,
-50,
-56,
-21,
-26,
4,
21,
-107,
-90,
94,
83,
50,
27,
-2,
-80
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.