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Brazil, J.:
Christina Lewis appeals a district court order confirming a settlement agreement and dismissing the case with prejudice. We affirm.
The parties have stipulated to the facts. Lewis and Forest Gilbert were involved in an automobile accident, which resulted in Lewis bringing a personal injury action against Gilbert. After discovery but prior to trial, Gilbert offered to settle the case for $11,500. The offer was made to Lewis’ attorney, David Troup, who relayed the offer to Lewis. After discussing the offer at length, Lewis authorized Troup to accept the settlement. Troup called Gilbert’s counsel and orally accepted the offer. Gilbert’s counsel cancelled the scheduled jury trial and sent Troup a proposed journal entry of dismissal and release of all claims, which Troup forwarded to Lewis. Lewis refused to sign the proposed journal entry and release and told Troup she had changed her mind and would not accept the settlement offer. Gilbert filed a motion to dismiss and for confirmation of settlement agreement, which was granted by the court. The court found that Troup held extensive discussions with Lewis regarding the settlement offer and that Lewis unequivocally gave Troup authority to settle the litigation exactly as it was settled.
Lewis argues the settlement agreement was not binding because it was not reduced to writing. She further argues the trial court erred by refusing to require compliance.with K.S.A. 60-241(a)(1)(h), which requires that a stipulation of dismissal be signed by all the parties and filed.
The parties are in agreement as to the facts. When the record on appeal consists of stipulated facts and documentary evidence, this court has the same opportunity on review as the trial court and may examine and consider the evidence in the same manner as did the trial court. In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979).
Unless required by statute or court rule, settlement agreements do not have to be reduced to writing to be valid. 15A Am. Jur. 2d, Compromise and Settlement § 10, p. 782. The Kansas courts have found that an oral settlement agreement is binding. In Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 349 P.2d 931 (1960), the defendant agreed to pay the Naumans $2,500 for damages sustained as a result of a nuisance caused by the defendant’s sewage disposal system. The settlement agreement was entered into orally between the attorneys for both parties. Shortly after entering the agreement, the defendant’s attorney informed counsel for the Naumans that his client had changed his mind, and the settlement was off. The trial court found an agreement had been made and awarded the Naumans $2,500. The Supreme Court affirmed, stating:
“The law favors the compromise and settlement of disputes, and when parties, in the absence of any element of fraud or bad faith, enter into an agreement settling arid adjusting a dispute, neither party is permitted to repudiate it. (Lewis v. Kimball, 103 Kan. 173, 173 Pac. 279; and Massey-Harris Co. v. Horn, 132 Kan. 206, 294 Pac. 666.) After the parties had agreed upon a compromise of a bona fide dispute, the courts will not, in the absence of any element of fraud or bad faith, look into the merits of the original controversy to discover which was in the right.” 186 Kan. at 310.
In Connor v. Hammer, 201 Kan. 22, 439 P.2d 116 (1968), the parties were involved in an automobile accident, which resulted in the death of Mrs. Connor. The parties orally agreed to settle the case, after which the attorney representing Connor’s estate confirmed the settlement agreement by letter, which stated, “we are accepting your settlement offer of compromise . . . for the sum of $1500.00.” 201 Kan. at 23. Later, the plaintiffs changed their minds and tried to repudiate the settlement. The court enforced the settlement, noting, “The law favors the compromise and settlement of disputes and when parties, in the absence of any element of fraud or bad faith, enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it.” 201 Kan. at 24.
Settlement agreements need not be in writing to be enforceable under Kansas case law. Once entered into, settlement agreements should be enforced absent a finding of fraud or bad faith. Here, Lewis does not allege fraud or bad faith but rather simply changed her mind with regard to the settlement. Accordingly, the oral agreement entered into between Lewis and Gilbert should be enforced.
Gilbert directs attention to several other state court decisions, which support the conclusion that a valid settlement agreement exists. In Jannarone v. W.T. Co., 65 N.J. Super. 472, 168 A.2d 72 (1961), the parties were involved in an automobile accident. The plaintiff through her counsel orally settled the suit for $250. Later, plaintiff’s counsel attempted to repudiate the agreement based on a change in judgment as to the value of the claim. The court stated:
“There was no justification for this repudiation by counsel of a settlement fairly and openly negotiated and arrived at. . . .
“The settlement of litigation ranks high in our public policy. [Citations omitted.] There is no good reason why an executory agreement between the parties, fairly arrived at, to settle pending litigation, should not be enforced in the cause, subject to the discretion of the court.” 65 N.J. Super, at 476-77.
For other cases reaching a similar result see Herron v. City of Chicago, 618 F. Supp. 1405 (N.D. Ill. 1985); Gregory v. Hamilton, 77 Cal. App. 3d 213, 142 Cal. Rptr. 563 (1978).
Lewis argues that, when a settlement occurs after suit is filed, K.S.A. 60-241(a)(l)(ii) requires the settlement agreement to be in writing. The statute, which addresses the dismissal of actions, states:
“Subject to the provisions of subsection (e) of K.S.A. 60-223 and of any statute of the state, an action may be dismissed by the plaintiff without order of court ... by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.” (Emphasis added.)
This statute is directed to the specific instance of when a plaintiff desires to dismiss a lawsuit. The statute should not be implied to mean that a settlement agreement must be in writing. Here, Lewis, the plaintiff, was not attempting to dismiss the case ivithout an order of the court, but rather, a settlement was reached and the court, not the clerk, dismissed the lawsuit. Upon finding a valid settlement agreement had been executed, the trial court properly dismissed the case. See Connor v. Hammer, 201 Kan. 22 (trial court properly dismissed case upon finding that settlement had been completed).
Lewis also argues Supreme Court Rule 163 requires all settlement agreements to be in writing. The rule states: “A court is not required to give effect to stipulations between counsel, or oral admissions of counsel, which are not reduced to writing and signed by the counsel to be charged therewith, or which are not made a part of the record.” Rule 163 (1989 Kan. Ct. R. Annot. 102). In support of this argument, Lewis relies on Old Republic Ins. Co. v. Franklin, 727 S.W.2d 701 (Tex. App. 1987), in which the Texas court interpreted Texas Rule of Civil Procedure 11, which provides: “ ‘No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.’ ” 727 S.W.2d at 702. In Old Republic, the trial court refused to consider several letters that evidenced a compromise agreement between the parties. In upholding the trial court’s decision, the appellate court held that the agreement failed to meet the requirements of Rule 11, and, to be enforced, the agreement must be filed and made part of the record.
The language of Texas Rule 11 and Kansas Supreme Court Rule 163 is significantly different. Rule 11 states, “ ‘No agreement . . . will be enforced unless it be in writing, signed and filed.’ ” Supreme Court Rule 163 states, “A court is not required to give effect to . . . oral admissions of counsel, which are not reduced to writing and signed by counsel ... or which are not made a part of the record.” Supreme Court Rule 163 does not force the court to disregard any oral stipulations but rather provides that the court is not required to give the stipulation effect.
In State v. Roach, 223 Kan. 732, 576 P.2d 1082 (1978), the trial court admitted the defendant’s oral stipulation that the results of a polygraph test would be admissible because the stipulation was made on the record. In affirming the trial court, the Supreme Court stated: “A stipulation to admit into evidence polygraph test results entered in court and on the record is as binding on the parties as if the same had been reduced to writing, signed by the parties, and filed of record.” 223 Kan. at 736.
Here, Lewis appeared before the court at the hearing on the motion to enforce the settlement. Although a transcript of that hearing has not been provided in the record, the parties agree that Lewis consented to the settlement but later changed her mind. This fact was set forth in the affidavit of Troup, which was reviewed by the trial court and stipulated as true by the parties. The existence of the oral stipulation has been made part of the record. Accordingly, Supreme Court Rule 163 does not prevent the oral settlement agreement from being enforced.
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Clark, J.:
The issue here is whether defendant has a right to make a statement to the court during that portion of a criminal proceeding known as allocution. K.S.A. 22-3422.
The trial court refused defendant’s request to make a statement during allocution. We vacate the sentence and remand for re-sentencing consistent with this opinion.
The law controlling the case is found at K.S.A. 22-3424(4). That part pertinent here is this:
“Before imposing sentence the court . . . shall address the defendant personally and ask him if he wishes to make a statement on his own behalf and to present any evidence in mitigation of punishment.”
The Supreme Court of Kansas, in State v. Webb, 242 Kan. 519, 748 P.2d 875 (1988), discussed the applicable statute in a case where defendant pled guilty and appealed the sentence after his motion to modify was overruled. There was no allocution for defendant. The court ruled that allocution was an absolute statutory right. Webb, however, waived the error by failing to raise it in his motion to modify his sentence. 242 Kan. at 529. The defendant here did not file a motion to modify but, instead, appealed directly from his sentence. Unlike Webb, he has not waived the error.
When the agreed-to fact of the instant case is applied to the law, we conclude that the defendant was denied his statutory right to allocution. State v. Webb; K.S.A. 22-3424(4). Accordingly, we vacate the sentence and remand for further proceedings. | [
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Rees, J.:
This is a “wet basement case” brought by the purchasers of a Wichita residence, plaintiffs E. Morton Heller and Bonnie E. Heller (Heller), against the seller of the residence, defendant Anne Z. Martin. Alleging that Martin was liable for breach of contract, commission of a Kansas Consumer Protection Act (KCPA) deceptive act (K.S.A. 50-626), and fraud, Heller sought recovery for actual damages, attorney fees, and punitive damages. The case was tried to a jury on the single theory of breach of contract. The jury returned verdicts finding Martin liable for breach of contract and fixing $6,291 as the amount to be recovered as damages (the “sum [found] necessary to correct the water seepage problem in the basement”). Judgment for Heller was entered in accordance with the verdicts.
Heller appeals from pretrial summary judgment in favor of Martin on Heller s allegations of KCPA violation and fraud, and from the denial of Heller s oral motion at trial to submit the fraud claim to the jury. Heller’s goal is recovery of attorney fees and punitive damages.
In substance, this appeal is from denial of Heller’s KCPA and fraud claims as a matter of law. The question for our answer is whether the trial court decision was correct, not whether the grounds upon which it professed to proceed are tenable. See Johnson v. Boeing Airplane Co., 175 Kan. 275, 283, 262 P.2d 808 (1953); City of Overland Park v. Barnett, 10 Kan. App. 2d 586, 596, 705 P.2d 564 (1985). The reasons given by a trial court for its decision are immaterial so long as its ruling was correct for any reason. Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989); Arensman v. Kitch, 160 Kan. 783, 792, 165 P.2d 441 (1946).
Misrepresentation of a material fact is the core subject here. Heller claims that Martin committed material misrepresentation in connection with the sale of her residence. Specifically, it is claimed that Martin wrongfully failed to inform Heller that a basement “water seepage problem” was extensive and that it would be expensive to fix, that is, that it would be expensive to repair and wholly remedy the “problem.”
Heller and Martin contracted on April 6, 1985, for the purchase and sale of Martin’s residence. The terms of their agreement appear in a written “Contract for Purchase of Residential Real Estate” signed by Heller as “Buyer” and by Martin as “Seller.” It provides that:
“In consideration of the mutual agreements contained herein, Seller agrees to sell and convey to Buyer, and Buyer agrees to buy and pay for, the following described real estate . . . subject to the terms and conditions stated in this contract.
“CONVEYANCE TO BE MADE TO: [HELLER]
“LEGAL DESCRIPTION: [legal description of the subject residence.]
“PURCHASE PRICE: $135,000.00
“DATE FOR CLOSING: On or before June 15, 1985
“PROPERTY: The real estate described herein . . . .
“THE BUYER AND THE SELLER BOTH UNDERSTAND THAT . . . PERFORMANCE HEREUNDER MUST BE IN GOOD FAITH. EACH HAS READ ALL PARTS OF THIS CONTRACT . . . AND AGREES TO BE BOUND THEREBY ....
“Buyer is aware of seepage in the basement, but seller will make effort to have condition corrected.” (Emphasis added.)
This is a classic bilateral contract. Heller and Martin each promises future performance in consideration for the other’s promise of future performance. In sum, Heller promised to pay Martin $135,000, and Martin promised to convey the residence to Heller and to make an effort to have the seepage condition in the basement corrected.
A purpose of KCPA is “to protect consumers from suppliers who commit deceptive . . . practices.” K.S.A. 50-623(b).
A commentator has said of KCPA that it is one of a package of legislation enacted by the 1973 legislature “intended to provide a mantle of protection for consumers involved in . . . credit transaction(s) .... Consumer credit is ... a huge business . . . and some abuses have occurred which the [package of] legislation is intended to curb.” Clark, The New Kansas Consumer Legislation, 42 J.K.B.A. 147 (1973). Nonetheless, the legislatively enacted language of KCPA does not limit its applicability to credit transactions. Thus, in cases such as that now before us, it cannot be held that KCPA is inapplicable because extension of credit is not an element of the subject transaction.
The KCPA provisions particularly applicable to the case before us are these:
“No supplier shall engage in any deceptive act ... in connection with a consumer transaction.” K.S.A. 50-626(a).
“Deceptive acts . . . include . . . the following . . . which is . . . declared to be a violation of [KCPA]:
“(3) the intentional failure to state a material fact, or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled.” K.S.A. 50-626(b).
“A consumer who is aggrieved by a violation of [KCPA] may recover . . . actual damages or a civil penalty as provided in K.S.A. 50-636(a) . . . whichever is greater.” K.S.A. 50-634(b).
“[T]he court may award to the prevailing party a reasonable attorney’s fee ... if:
“(1) ... a supplier has committed an act . . . that violates [KCPA] and the prevailing party is the consumer . . . .” K.S.A. 50-634(e).
“The commission of any act . . . declared to be a violation of [KCPA] shall render the violator liable to the aggrieved consumer . . . for the payment of a civil penalty ... in a sum set by the court of not more than two thousand dollars $2,000 for each violation.” K.S.A. 50-636(a).
To determine the application of the foregoing KCPA provisions, one must look to K.S.A. 50-624, where it is provided that:
“As used in [KCPA]:
“(b) ‘Consumer’ means an individual who seeks or acquires property . . . for personal, family, [or] household . . . purposes.
“(c) ‘Consumer transaction’ means a sale ... of property ... to a consumer or a solicitation by a supplier with respect to [a sale of property].
“(g) ‘Property’ includes real estate ....
“(i) ‘Supplier’ means a . . . seller ... or other person who, in the ordinary course of business, solicits [or] engages in . . . consumer transactions, whether or not dealing directly with the consumer.”
By KCPA’s definitions, Heller was a consumer. Heller was an individual acquiring real estate for personal, family, or household purposes. K.S.A. 50-624(b), (g). If Martin was a supplier, as defined by K.S.A. 50-624(i), the sale of Martin’s residence to Heller was a consumer transaction. It was a sale of real estate to a consumer. K.S.A. 50-624(c).
Was Martin a supplier as defined by K.S.A. 50-624(i)? We conclude that she was.
Although not a real estate trader or dealer, that is, a person engaged in the buying and selling of real estate for her own account, as a licensed real estate salesperson Martin solicited consumers to enter into real estate sales transactions. She engaged in that activity in the ordinary course of her business. She met the KCPA definition of supplier. The fact that she was in the employ of or otherwise represented Ed Clarke Company is immaterial. Her ordinary business was solicitation of real estate sales. It also is immaterial that the subject residence was owned by her and that, as its owner, she was its seller. Here she solicited persons — Heller—to participate as purchasers of real estate being sold. Moreover, by listing her residence with Clarke and, by necessary implication agreeing to compensate Clarke for the services of its personnel, whomever they may have proved to be, including herself, she placed her residence in Clarke’s inventory of properties for which its clients had engaged it to solicit purchasers. That an owner’s sale of his or her residence most often is an isolated sale also is immaterial here. Whether Martin was a disclosed principal of Clarke is of no moment. Agency law is dispositive of no controlling or material issue presented for resolution in this case.
Our disposition of Heller’s contentions on appeal concerning the KCPA claim calls for resolution of the question whether, in connection with the Heller and Martin residential purchase and sale transaction, Martin, as a matter of law, intentionally failed to state or intentionally concealed a material fact. Whether decided by a factfinder or as a matter of law, if Martin did not intentionally fail to state or intentionally conceal a material fact in connection with the transaction, KCPA’s grant of discretionary authority to the trial court to award attorney fees is inoperative. See K.S.A. 50-634(e).
It is crystal clear that when the purchase and sale contract was entered into on April 6, 1985, Heller had actual knowledge of the premises defect, the basement water seepage problem. The written contract establishes beyond question that the two parties each had actual knowledge of the defect. Also, by the plain terms of the written contract, Heller accepted Martin’s promise to make an effort to correct the defect, a promise made without limitation relating to the magnitude of the defect or the cost to cure it.
The jury found Martin liable for breach of contract in that she did not fulfill her contractual promise to make an effort to have the basement water seepage condition corrected. By the judgment entered on the jury verdicts, Heller has obtained the equivalent of conveyance of the residence with the basement in good condition.
Was Martin also guilty of commission of the KCPA deceptive act defined by K.S.A. 50-626(b)(3)? We are convinced and hold that, as a matter of law, the answer is “no.”
The record here discloses not a scintilla of evidence, direct Or reasonably inferable, that Martin intentionally failed to state a material fact or intentionally concealed, suppressed, or omitted a material fact. K.S.A. 50-626(b)(3) requires that the failure to state, concealment, suppression, or omission be intentional. K.S.A. 50-626(b)(3) does not proscribe mere nondisclosure of a material fact.
Viewing the evidence iii the light most favorable to Heller, we find that the evidence directly or by reasonable inference supports these facts: Prior to April 6, 1985, there was a defect in the residence (the basement water seepage problem). Martin and Heller both had actual knowledge of the defect’s existence; neither Martin nor Heller had particular knowledge of the nature and magnitude of the defect nor did either know the probable cost to cure the defect. Given these circumstances, it was agreed by Heller and Martin in their April 6, 1985, purchase and sale contract that Martin would remedy the defect; she promised to cure the defect. Martin’s promise was not a false promise, that is, when she made that promise she intended to keep it; it was not a promise that she did not intend to perform. If Tom Tomlin’s testimony is taken as true, on or shortly before June 6, 1985, which was two months after the parties had made their contract and nine days or so prior to the agreed closing date of June 15, 1985, Martin learned from Tomlin of Mid-West Waterproofing, Inc., that the defect was “extensive” and that to cure it would be “expensive.” Martin employed Mid-West to perform certain specific work toward repair of the defect. The particular work undertaken and performed by Mid-West on June 6, 1985, was the repair of the then visible 15 linear feet of cracks in the basement’s west wall. Prior to and at the closing on June 15, 1985, Heller had actual, specific knowledge of the repair work performed by Mid-West.
When Martin delivered Mid-West’s written guaranty to Heller at the June 15, 1985, closing, she affirmatively represented to Heller that repair work as described and executed by Mid-West had been performed. At the closing, Heller had no objection as to the work that had been done. Heller testified Martin made no misrepresentation. Ultimately, of course, Heller experienced “flooding” in the basement and thereafter cured the defect at a cost of $6,291. Martin’s promise to cure the defect has been enforced by the breach of contract judgment against her.
Bearing in mind that both Heller and Martin had actual knowledge of the defect, that each knew the other had actual knowledge, that Martin truthfully informed Heller of the exact and full details of the repair work she had caused to be performed by Mid-West, and that Martin denies Tomlin told her the defect Was extensive and its cure would be expensive, we conclude the evidence was insufficient to support a finding that Heller had satisfied the burden of proof to establish by a preponderance of the evidence that Martin’s nondisclosure to Heller, prior to or at closing, was intentional. Perhaps Martin’s “nondisclosure” was thoughtless, but it was not intentional. Cf. Lynn v. Taylor, 7 Kan. App. 2d 369, 642 P.2d 131, rev. denied 231 Kan. 801 (1982) (fraud case where seller, having termite inspection report that had been prepared at buyer’s request and on buyer’s behalf and that was unfavorable, obtained and furnished to buyer a favorable termite inspection report; seller retained and did not disclose existence of first report).
We find no evidence to enhance mere nondisclosure by Martin to intentional nondisclosure. In this respect, we find analogous the rule spoken of in Edwards v. Phillips Petroleum Co., 187 Kan. 656, 659, 360 P.2d 23 (1961), that “[misrepresentations in order to constitute actionable fraud . . . cannot ordinarily be predicated on unfulfilled promises.” Here, with the defect having been made a subject of the parties’ written contract, the thrust of Heller’s KCPA complaint is that Martin failed to inform Heller she had not fulfilled her promise to cure the defect. That does not amount to intentional failure to disclose as proscribed by K.S.A. 50-626(b)(3).
Upon reasoning that varies from that adopted by the trial court, we conclude it correctly held that, as a matter of law, Heller was not entitled to recover for violation of KCPA.
We turn to the question of Heller’s claim for recovery of punitive damages on the ground of fraud.
Heller makes no serious contention that there was fraud in the inducement of the April 6, 1985, contract. Fundamentally, this is a contract action in which actual damages were sought and have been recovered for breach of the contract. No punitive damages were recoverable in the absence of additional damages caused by the independent tort of fraud. See Osgood v. State Farm Mutual Auto Ins. Co., 848 F.2d 141, 143-44 (10th Cir. 1988); Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 78, 652 P.2d 665 (1982). There is no evidentiary showing here of damages suffered by Heller and caused by fraud that were in addition to and beyond the breach of contract damages suffered by Heller.
A breach of contract action cannot be turned into an action for fraud by merely alleging reliance on representations that the contract would be performed and detriment from its breach. Brown v. Chaffee, 612 F.2d 497, 503 (10th Cir. 1979). The independent tort of fraud must cause damages beyond those suffered by breach of contract. Mackey v. Burke, 751 F.2d 322, 329 (10th Cir. 1984).
As a matter of law, Heller was not entitled to recovery of punitive damages for fraud. There was no showing of damages beyond those suffered by reason of the breach of contract.
In an argument that impresses us as no more than incidental, Heller asserts that Martin wrongfully failed to disclose that the Real Estate Brokers’ and Salespersons’ License Act (K.S.A. 58-3034 et seq.) did not apply to this transaction. We fail to comprehend how it can be said that Martin breached any duty by failing to provide legal advice to Heller.
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Rulon, J.:
Michael L. Martin, defendant, appeals the district court’s finding that, as a matter of law, he could not serve the 90 days of imprisonment required under K.S.A. 1988 Supp. 8-1567(f) in a work release facility. We affirm.
The facts in this case are undisputed. On November 7, 1988, Martin entered a plea of guilty to driving under the influence of alcohol (DUI), contrary to K.S.A. 1988 Supp. 8-1567. This conviction was the defendant’s third DUI conviction within a five-year period. On November 16, 1988, Martin appeared for sentencing. The district court sentenced Martin to 6 months in the Sedgwick County Jail and ordered him to serve 90 days of that sentence, after which he would be released on probation.
The sole issue on appeal is whether a program of work release satisfies the requirement of “imprisonment” contained in K.S.A. 1988 Supp. 8-1567(f). The statute states, in part:
“On the third or a subsequent conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $1,000 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment.”
Martin argues that, absent a specific prohibition of work release in the statute, work release is an acceptable form of imprisonment. The State argues that the defendant would not be imprisoned while outside the facility on work release, and so the requirement of 90 days’ imprisonment would not be fulfilled.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In determining legislative intent, the court may consider the language of the statute, the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effect the statute may have under the various constructions suggested. Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
K.S.A. 8-1567 was amended in 1982 to make a minimum term of imprisonment mandatory for second or subsequent convictions and to exclude the possibility of probation, parole, or suspension or reduction of sentence until that minimum was served. See L. 1982, ch. 144, § 5 (amending K.S.A. 1981 Supp. 8-1567). The sponsor of the bill testified the bill was developed with the “objective of toughened penalties, but mostly to respond to several unintentional loopholes that allowed many guilty D.W.I. violators to go unpunished.” See Hearings on S.B. 699 before House Comm. on Transportation, 69th Kan. Leg., 1982 Sess. 2 (March 16, 1982). The testimony also indicated that, while the attitude of the drafters was not punitive, “on the third offense, there is little sympathy intended, and . . . the offender should be treated as a criminal.”
The express language of K.S.A. 1988 Supp. 8-1567 is silent on the issue before the court. Work release is never specifically mentioned in the statute. Imprisonment is not expressly defined.
“[W]ords in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of a stat ute.” Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983).
In State v. Meredith, 236 Kan. 866, 696 P.2d 403 (1985), a defendant sentenced on his second offense under K.S.A. 8-1567(d) argued that 30 days of in-patient treatment at a private alcohol treatment center should satisfy his sentence of five days in jail. The court held that the defendant had not been under the custody and control of law enforcement officials while at the center and so the time he was there could not be credited as imprisonment. 236 Kan. at 869.
In K.S.A. 1988 Supp. 8-1567(d) the legislature requires a mandatory minimum sentence of 48 consecutive hours. Under K.S.A. 1988 Supp. 8-1567(e) the offender is to serve five consecutive days’ imprisonment before the offender is granted “probation, suspension or reduction of sentence or parole or is otherwise released.” (Emphasis added.) K.S.A. 1988 Supp. 8-1567(f) omits the use of the word “consecutive” and the “or is otherwise released” language. The use of the word “consecutive” was added in 1985 to K.S.A. 1988 Supp. 8-1567(d) and (e) but not (f). L. 1985, ch. 48, § 9.
We believe the purpose and intent of the legislature in promulgating K.S.A. 1988 Supp. 8-1567(f) was to ensure that on the third or subsequent conviction of DUI the defendant would serve at least 90 consecutive days’ imprisonment. A fair reading of the statutory language that the “person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment” excludes work release programs from the definition of imprisonment.
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Brazil, J.:
Kansas Gas and Electric Company (KG&E) and Beech Aircraft Corporation, The Coleman Company, Total Petroleum, Inc., LaFarge Corporation, and Texaco, Inc., (the industrial intervenors) appeal the Kansas Corporation Commission’s (KCC) decision finding fuel costs were imprudently incurred during outages at the Wolf Creek Generating Station (Wolf Creek) and ordering a $6.9 million refund with interest to KG&E’s customers. We affirm in part, reverse in part, and remand.
In September 1987, Wolf Creek embarked on a refueling outage scheduled to last 49 days. The refueling outage actually lasted 101 days and a subsequent, unscheduled outage on January 21, 1988, lasted another 26 days. As part of a general investigation into excess energy costs incurred during the 1987-88 extended outages at Wolf Creek, the KCC, on its own motion, ordered KG&E to show cause by an order dated December 30, 1988, why KG&E should be allowed to retain $6,415,582 of excess costs charged to Kansas ratepayers during the unscheduled outage periods. The industrial customers subject to KG&E’s Retail Energy Cost Adjustment Clause intervened in the action. The Citizens’ Utility Ratepayers Board (CURB), representing residential and small commercial customers, also intervened.
After a hearing, the KCC issued an order finding imprudence and mismanagement during the 1987-88 outages in question. The KCC further adopted the KCC staff s calculation of refund rather than relying on KG&E’s Retail Energy Cost Adjustment Clause (ECA clause) to determine the refund. In so doing, the KCC found a 49-day outage schedule to have been prudent and the balance of the outage to have been avoidable, and ordered KG&E to refund $6,923,457 in three equal lump sums, payable annually. (The $6,415,582 refund proposed in the show cause order as sumed a 56-day outage schedule.) The refund included 9.8836 percent interest from the time the overcharges were incurred until the time each refund is made. Chairman Henley dissented from the decision.
Both KG&E and the industrial intervenors timely applied for judicial review, and those applications were consolidated for argument and decision by this court.
We are first confronted with the question of this court’s jurisdiction to hear the appeal. K.S.A. 1989 Supp. 66-118a(b) provides in relevant part: “The court of appeals shall have exclusive jurisdiction to review any agency action of the state corporation commission arising from a rate hearing requested by a public utility or requested by the state corporation commission when a public utility is a necessary party.” KG&E is clearly a public utility as defined in K.S.A. 66-104; i.e., it is a company “for the production, transmission, delivery or furnishing of heat, light, water or power. ” The jurisdictional question here is whether the agency action arises from a rate hearing.
KG&E’s position is that the ECA clause is a rate because it involves the pricing of a product to customers. In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, 685 P.2d 304, rev. denied 236 Kan. 875 (1984). The KCC’s position, as announced in its order, is that the ECA clause is a tariff and not a rate and that the hearing appealed from was not a rate hearing.
Two recent Court of Appeals decisions have addressed this jurisdictional issue. In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, involved approval of tariffs which had been severed from the underlying rate case because of the need to expedite the rate case. Jurisdiction was found to lie with the Court of Appeals based on two factors: “(1) the close relationship between this case and the prior rate case; and (2) the similarity of the involved tariff to a rate schedule.” 9 Kan. App. 2d at 529.
The court added a cautionary note, however:
“The conclusion that this court has jurisdiction in this case does not mean that all cases involving tariffs are directly appealable to this court under K.S.A. 66-118a. For example, questions of tariff interpretation should be appealed to the district court. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375 [, 664 P.2d 798 (1983)]. If the tariff is closely related to a prior rate case or if it is similar to a rate schedule, jurisdiction will more likely be with this court than with the district court.” 9 Kan. App. 2d at 531.
MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm'n, 10 Kan. App. 2d 527, 704 P.2d 989 (1985), turned on application of the second Southwestern Bell factor. 10 Kan. App. 2d at 530-31. The court found the amended tariff which was the subject of appeal “dealt only with new rates” and “[t]he Commission s hearing on the tariff likewise dealt only with rates and revenues.” 10 Kan. App. 2d at 531. The court concluded this was a rate hearing, and the resulting order was one “ ‘arising from a rate hearing.’ ” 10 Kan. App. 2d at 531.
In this case the KCC issued an order to KG&E to show cause why it should be allowed to retain in excess of six million dollars of excess costs charged to Kansas ratepayers during unscheduled outage periods associated with the second refueling of the Wolf Creek Generating Station. As part of the original Wolf Creek rate hearings, the KCC approved an ECA clause as part of KG&E’s tariffs. The clause, as explained by KG&E’s Supervisor of Regulatory Accounting, is a “rate setting mechanism whereby customers are charged, as a separate component on their bills, for the estimated costs of fuel and purchased power required to meet anticipated energy consumption on KG&E’s system during each calendar month.” In calculating the proposed refund for purposes of the show cause order, the KCC staff employed an alternative fuel mix ratio, a decision challenged by KG&E, which contended before the KCC and now on appeal that a refund, if ordered, should be calculated under the ECA clause approved as part of the Wolf Creek rate hearings. KG&E argues the rejection of the ECA clause and the application of a different cost adjustment formula resulted in retroactive ratemaking in the instant case.
We find that, based on either Southwestern Bell factor, the close relationship between this case and the prior rate case, or the similarity of the involved tariff to a rate schedule, jurisdiction properly lies with this court because the show cause order in this case is inextricably bound to the tariffs established in the prior rate case and the issues involved are not simply ones of tariff interpretation. Likewise, KG&E’s ECA clause is an indispensable component of its rate structure because it is the only mechanism available to KG&E to price its product for the purposes of recovering its fuel costs. Even if the EC A clause in this case is a tariff, it is a tariff similar to a rate schedule.
Our scope of review is defined at K.S.A. 77-621, a codification of principles well established in Kansas case law. See Zinke & Trumbo, Ltd. v. Kansas Corporation Comm'n, 242 Kan. 470, 474, 749 P.2d 21 (1988); Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. 483, 497, 720 P.2d 1063 (1986). An explanation of those principles appears in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied 226 Kan. 792 (1979).
“An order is ‘lawful’ if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are followed in making the order. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, Syl. ¶ 1, 561 P.2d 779 (1977). An order is generally considered ‘reasonable’ if it is based on substantial competent evidence. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 2 [, 565 P.2d 597 (1977)].
“The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. at 511. Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 48-9, 386 P.2d 515 (1963). Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975); Graves Truck Line, Inc. v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P.2d 1065 (1974).” (Cited with approval in Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. at 496-97, and MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm'n, 10 Kan. App. 2d at 533-34.)
“[Substantial competent evidence is that which possesses something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved.” Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 44, 46, 602 P.2d 131 (1979), rev. denied 227 Kan. 927 (1980).
1. Retroactive Ratemaking.
In determining the amount of refund owed KG&E customers, the KCC based its calculation on actual fuel mix data collected over a three-year period. KG&E contends the only approved alternative fuel ratio is contained in the current ECA clause, and adoption of any other methodology constitutes prohibited retroactive ratemaking. The KCC relies on its statutory authority to prevent collection of unreasonable and unjust rates and claims that it does not have to abide by the terms of the ECA clause alternative fuel ratio for several reasons: (1) the ban against retroactive ratemaking is basically a policy decision; (2) the ECA clause is not a “rate”; (3) the ECA clause is subject to supervision by the KCC and thus can be modified retroactively; and (4) the ECA clause is only applicable to energy costs not within the control of the utility.
While recognizing the KCC’s broad authority to regulate rates, we hold that application of an alternative fuel ratio other than that contained in the current ECA clause constitutes prohibited retroactive ratemaking.
K.S.A. 1989 Supp. 66-101d gives the KCC authority to investigate rates either on complaint or on its own initiative. The statute continues, in relevant part: “If after hearing and investigation the commission finds that such rates . . . are unjust, unreasonable, unjustly discriminatory or unduly preferential, the commission shall have the power to fix and order substituted therefor such rates ... as are just and reasonable.”
The KCC’s power to set just and reasonable rates, however, is subject to the general rule “that a statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter, and that retrospective application will not be given where vested rights will be impaired.” Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 568, 552 P.2d 998 (1976). There is no clear indication of legislative intent that 66-101d operate retrospectively. On the contrary, such a construction would fly in the face of well-established Kansas precedent against retroactive ratemaking. See, e.g., Kansas-Ne braska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 615, 538 P.2d 702 (1975); State, ex rel., v. Public Service Comm., 135 Kan. 491, 504, 11 P.2d 999 (1932); MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm'n, 10 Kan. App. 2d at 533; Sunflower Pipeline Co. v. Kansas Corporation Commission, 3 Kan. App. 2d 683, 686, 600 P.2d 794 (1979).
The ban against retroactive ratemaking has a statutory and constitutional basis in Kansas. In Sunflower Pipeline Co. v. Kansas Corporation Commission, 5 Kan. App. 2d 715, 624 P.2d 466, rev. denied 229 Kan. 671 (1981), a utility was ordered to refund to customers all amounts collected over the approved rates. The court concluded K.S.A. 66-109 does not allow deviation from an established rate without commission approval, even if the established rate is unreasonably low. The court further concluded, “[Pjartial refunds would amount to retroactive ratemaking by the commission.” 5 Kan. App. 2d at 722. Nor, by analogy, could the KCC deviate from the established rate, as it did in this case, because it determined the weighted three-year average more accurately reflected KG&E’s actual fuel mix than the alternative fuel mix ratio in the ECA clause.
In State, ex rel., v. Public Service Comm., 135 Kan. 491, the court found a statute that authorized retroactive reparation of certain freight rates constitutionally infirm. Focusing on the vested rights of private litigants, the court stated:
“[W]hen a rate has been the subject of a deliberate inquiry in which the carriers, the shippers and the commission’s own experts have participated, . . . any rate so prescribed by the commission and put into effect by the carriers may be confidently collected and' retained by them . . ., without misgiving that at some future time a further hearing of the commission may be had and more evidence taken and a different conclusion reached, and those rates condemned as unreasonable .... Such a method of regulating public utilities has none of the earmarks of due process of law nor the simplest notions of justice.” 135 Kan. at 504.
In Kansas, the ban against retroactive ratemaking is more than a matter of policy. The KCC cannot retroactively deprive a utility of its lawfully established rates.
The KCC further contends it has not violated the prohibition against retroactive ratemaking because the ECA clause is not a rate. This contention draws a sharper distinction between tariffs and rates than we have discerned in the case law.
“Tariffs have been defined as ‘those terms and conditions which govern the relationship between the utility and its customers.’ [Citation omitted.] A rate schedule involves ‘pricing the product to particular classes of customers to permit the utility to recover the revenue to which it is entitled.’ [Citation omitted.] A tariff is thus broader than a rate schedule and can include terms beyond the mere pricing of thet product. [Citation omitted.]” In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d at 530-31.
Tariffs, while distinguishable from rates in some particulars, share common characteristics with rate schedules. KG&E’s ECA clause, as part of the company’s tariff filings pursuant to the Wolf Creek rate order, operates as a pricing mechanism. It has been found that “[tjariffs, duly filed . . . generally bind both the utility and the customer. [Citation omitted.] Tariffs filed with regulatory agencies must comport with any conditions, schedules and provisions authorized by the. agency and amended tariffs and schedules of rates are not effective unless, approved by the KCC. [Citation omitted.]” Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 377, 664 P.2d 798 (1983).
Tariffs are encompassed within the prohibition against retroactive ratemaking, particularly when, as in the present case, they share similarities with rate schedules.
A closer examination of the ECA clause buttresses our conclusion that retroactive ratemaking occurred when the KCC applied an alternative fuel mix ratio other than that in the tariff.
In 1977, on its own motion, the KCC initiated an investigation to establish general policies with regard to purchased natural gas, fuel for electric power generation, and purchased electric power. Docket No. 106,850-U. The resulting order adopted a uniform clause which designates, variable automatic adjustment provisions to permit the pass-through of actual costs of gas, fuel, or purchased power.
The KCC stated at page 11 of the. 1977 order in that docket:
“We are cognizant that-one of-the dangers of a variable clause is that even costs that are avoidable.will be passed on to the consumer. No matter how ineffective the utility’s purchasing or operating performance is, the consumer will be asked to bear the cost. While we believe that a variable clause is by far the most desirable mechanism for passing through changes in the cost of gas, fuel and purchased power, the Commission also recognizes that it must reserve the right to suspend or adjust the clause if the results of its application fall outside the prescribed limits.”
The KCC required utilities to submit a monthly report relative to charges under the ECA clause on or before the 15th of the month prior to the month for which the energy adjustment was to be billed. The KCC retained jurisdiction to suspend the ECA clause by notifying the utility on or before the 25th of the month prior to the month for which the adjustment was to be billed.
As part of the Wolf Creek rate order in 1985, KG&E’s ECA clause was revised. The relevant nuclear fuel mix limits were set at 0-45% with the nuclear alternative fuel ratio set at 21%. Recognizing the insufficiency of the evidence on which those limits were established, the KCC stated in the Wolf Creek order: “We . . . intend to treat ECA tariffs filed in compliance with this order as temporary and to set the matter for hearing subsequently.” No hearing was subsequently scheduled to revisé the tariffs, possibly as noted by James Haines, director of the Wolf Creek Nuclear Operating Corporation (WCNOC), because Wolf Creek performance has consistently exceeded expectation.
It was impossible for Wolf Creek to fall below its minimum fuel limit, which was set at 0%, and the generating station exceeded its 45% maximum limit 61% of the time. Theoretically, KG&E could have reaped a windfall had the 21% alternative ratio been employed when Wolf Creek exceeded the upper limits because, according to the record before us, nuclear power is KG&E’s least expensive fuel source. The KCC’s staff has, in each instance, recommended recovery of actual fuel settlement costs rather than use of the alternate ratio, resulting in considerable savings to KG&E customers.
Given Wolf Creek’s performance history, the ECA clause limits appear to be overdue for revision. In the Wolf Creek hearing, the plant’s capacity factor was estimated at 61%; whereas, the actual cumulative factor since start-up in 1985 is 69.9%. KG&E witness Ernest Lehman testified in the current hearing that the minimum nuclear fuel mix limit was set at 0% in recognition that the plant would be off-line for refueling. The 45% maximum was chosen because it was expected Wolf Creek could produce no more than 45% of KG&E’s energy requirements in the lowest load months. The 21% alternative fuel ratio recognized Wolf Creek’s expected capacity on start-up. In the four months of commercial operation in 1985, Wolf Creek operated at 90.6% capacity and in 1986, its first full year of operation, it operated at 70.4%.
The KCC, in the current order, has now directed its staff to “commence an investigation reviewing KG&E’s current ECA and Alternative Fuel Mix limits with a view toward determining accurate and appropriate figures.”
Two statements printed on the ECA clause itself are particularly relevant to our inquiry. In fine print on the first page, it is stated: “No supplement or separate understanding shall modify the tariff as shown hereon.” Perhaps more relevant, under the heading “Commission and other Approval” on page three, it is stated:
“The rates and any terms or conditions provided herein are subject to changes or substitutions, either in whole or in part, made from time to time by a legally effective filing of the Company with, or by order of, the regulatory authority having jurisdiction, and the Company reserves the right to seek unilaterally changes or substitutions, in accordance with law, from such regulatory authority.”
In summary, the original order establishing the ECA clause provided the KCC could suspend the clause by notifying the utility on or before the 25th of the month prior to the month for which the adjustment was to be billed. The tariff itself provides it is subject to change by order of the KCC. The tariff has been in unchanged continuous use since 1985, although the KCC acknowledged the need to examine Wolf Creek operational data. We conclude that the KCC and the utility were bound by the provisions of the tariff until changed by further order of the KCC.
We find no evidence in the record that the ECA clause is applicable only to unavoidable costs. In adopting the ECA clause, the KCC acknowledged the danger inherent in such clauses of passing on avoidable costs to the consumer. As a result, the KCC incorporated into the ECA clause the safeguard of review prior to billing and the right to suspend the ECA clause prospectively. In addition, the KCC adopted alternative fuel ratios to be employed when the utility’s performance falls outside the stated limits. Testimony of James M. Proctor, KCC chief utility regulatory auditor, is consistent with application of the ECA clause to both avoidable and unavoidable costs. Proctor stated that “when Staff believes the limits were exceeded for avoidable reasons it may recommend that fuel costs determined using the alternate ratios be recovered.” The KCC’s staff did not exercise that option during the 1987-88 outages.
A refund, if warranted, should have been calculated under existing tariffs. This conclusion in no way diminishes or infringes upon the powers of the KCC, which are admittedly expansive. It does, however, assure that “ ‘[a] rate once fixed remains established until changed in some manner allowed by law.’ ” Sunflower Pipeline Co. v. Kansas Corporation Commission, 5 Kan. App. 2d at 720.
Because on remand a reasonableness determination under the ECA clause will necessarily involve an examination of imprudence, we will address issues of admission of expert testimony and sufficiency of the evidence to support the imprudence finding.
2. Admission of Expert Testimony
KG&E contends staff witness David A. Schlissel lacked qualifications to give expert testimony on matters pertaining to nuclear power plants. In particular, KG&E contends Schlissel had no basis to give testimony on the prudence of management actions or the. impact of imprudence on the outage duration. KG&E, therefore, contends the KCC erred in admitting Schlissel’s testimony.
“The rules of evidence as found in the Kansas Code of Civil Procedure are to be applied by the KCC at all of its hearings. The chairman may, however, relax the rules of evidence when ‘it will be in the public interest to do so and will aid in ascertaining the facts.’ K.A.R. 82-1-230.” In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d at 539.
As guidance to the KCC, K.S.A. 60-456(b) provides:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
Admission of expert testimony lies within the trial court’s discretion, Hampton v. State Highway Commission, 209 Kan. 565, 582, 498 P.2d 236 (1972), and within the KCC’s discretion in hearings before that body.
Schlissel’s educational background includes a bachelor of science degree in engineering from the Massachusetts Institute of Technology (MIT), a master of science degree in engineering from the Stanford University School of Engineering, a law degree from Stanford, and three years of study in nuclear engineering at MIT.
In 1983, Schlissel formed Schlissel Engineering Associates and has been retained by governmental bodies, municipal utility systems, and private organizations in seventeen states to prepare expert testimony and analyses on engineering and economic issues related to public utilities. He reviewed a list of recent clients and listed regulatory commissions in twelve states before whom he had testified in addition to the Atomic Safety and Licensing Board of the Nuclear Regulatory Commission. Although the weight of Schlissel’s testimony was subject to attack because he lacked actual practical experience in the nuclear field, this conclusion does not erode the propriety of the KCC’s initial ruling to allow his testimony. The KCC did not abuse its discretion in admitting Schlissel’s expert testimony.
3. The Imprudence Finding
KG&E contends there is not substantial competent evidence in the record to support the KCC’s findings that 78 days of the 1987-88 extended outages were imprudently incurred. KG&E’s principal concern is KCC’s reliance on the direct testimony of David Schlissel.
Once testimony is admitted, the KCC has discretion to weigh and accept or reject that testimony. Union Gas System, Inc. v. Kansas Corporation Commission, 8 Kan. App. 2d 583, 586-87, 663 P.2d 304, rev. denied 233 Kan. 1093 (1983) (cited with approval in MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm'n, 10 Kan. App. 2d at 532). Although Schlissel’s credibility was undermined on cross-examination, he presented cogent direct testimony which the KCC accepted. We find no abuse of discretion in the KCC’s acceptance of Schlissel’s testimony.
We turn now to the question of the sufficiency of the evidence to support the KCC’s findings.
As a preliminary matter, we note KG&E’s contentions that it has been held to a standard of strict liability rather than prudence and that the KCC focused on too narrow a time frame in judging its performance. Our review of the record reveals a prudence standard was applied, although one might disagree with the KCC’s coriclusions as KG&E does. In his direct testimony, Schlissel defined the prudence standard as “how reasonable persons, with the skill and knowledge attributed to reasonable utility managers, should have, been expected to cope with the circumstances and problems.” Cf. Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. at 495 (“prudence” defined as “ ‘[c]arefulness, precaution, attentiveness and good judgment’ ”).
As to KG&E’s complaint that the KCC too narrowly focused on 'performance during the outage periods of 1987-88 rather than taking a larger view of performance since the beginning of commercial operation in 1985, conflicting evidence exists. The record is replete with KG&E testimony detailing Wolf Creek’s superior performance and admonitions that the KCC should measure performance oyer a. statistically significant period of time. There is, however, also testimony in the record from Fred B. Adam, who testified on behalf of the industrial intervenors that, if performance were measured over an extended period of time, KG&E could recover costs despite inefficiency and imprudence. Focus on the narrower time frame was not arbitrary and capricious.
KG&E originally scheduled this second refueling outage to last 56 days but later developed a 49-day work schedule to begin September 30,- 1987. The outage began prematurely on September 27, 1987, when workers inadvertently tripped a switch which forced the shut-down of the plant, The refueling outage lasted 101 days with the plant back on line January 5, 1988. A 26-day unscheduled outage began on January 21, 1988, 21.5 days of which were attributable to a leak past the reactor vessel “O” rings and a 4.5-day extension attributed to a ground in the main generator exciter rotor. The plant returned to power on February 17, 1988, having been out of service 127 days between September 27, 1987, and February 17, 1988..
Staff witness .David Schlissel found between 44 and 52 of the unscheduled outage days during refueling were the result of WCNOC’s failure to' properly plan, manage, and control outage activities. Schlissel concluded WCNOC could have avoided the entire 26-day forced outage had the “O” ring gasket area been subjected to a second inspection before start-up after refueling.
KG&E does not contend there is no evidence in Schlissel’s direct testimony to support the KCC’s decision. KG&E’s contention, rather, is that Schlissel’s credibility was so impaired on cross-examination that his testimony as a whole does not constitute substantial competent evidence. Admittedly, Schlissel’s credibility was impaired by references to deficiencies in his experience (as opposed to education). He admitted the 49-day schedule was an aggressive one, but he continued to maintain the work could have been done in that time or the problems could have been anticipated. Because there are varying explanations for each event, it is difficult to say there is not a substantial basis of fact from which the issues can be resolved.
The “O” ring incident is a case in point. KG&E witnesses testified the specific problem was unknown to the industry before the Wolf Creek incident. On the other hand, there is testimony the “O” ring leak was discovered on December 26, 1987, and yet management continued to bring the plant back on line. There was general knowledge that the industry was having problems with “O” ring seals. Schlissel’s testimony was that prudent operators would have performed a second inspection and cleaned the “O” ring gasket area before the vessel head was tensioned or, in the alternative, would have discontinued start-up when the leak was discovered. Evaluating the efficacy of these options appears to be a task particularly within the KCC’s expertise.
We share the sentiment of the KCC chairman in his dissent that it is incredible that every single day of outage beyond the 49 days scheduled was due to KG&E’s imprudence. However, given the KCC’s discretion to weigh testimony and this court’s narrow scope of review, we find substantial competent evidence exists of record to support the finding that 78 days of the 1987-88 outages were imprudently incurred.
4. Interest on Refund
KG&E contends the KCC exceeded its statutory authority in ordering 9.8836% interest on the refund of $6,923,457. Although the amount of refund will change, whether to assess interest and the rate to be assessed remain viable issues.
We conclude the KCC has the inherent power under K.S.A. 66-101 to impose interest on refunds when, as here, the refund is ordered for imprudent or unreasonable actions. K.S.A. 66-101 gives the KCC “fall power, authority and jurisdiction to supervise and control the electric public utilities . . . doing business in Kansas, and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.”
K.S.A. 66-101g further provides:
"As applied to regulation of electric public utilities, the provisions of this act and all grants of power, authority and jurisdiction herein made to the commission, shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of this act are expressly granted to and conferred upon the commission.”
We question the imposition of interest different than the statutory rate, however, absent any authorizing agreement, statute, or regulation. See K.S.A. 16-204(e).
If, on remand, a refund is ordered under the ECA clause alternative fuel ratio, we hold the KCC has inherent authority to impose the statutory rate of interest on that refund.
Given our disposition of the refund issue, we need not address the issues of the industrial intervenors other than to note the KCC’s order should identify the customers entitled to the refund and how the refund should be apportioned, as well as the manner and time of payment.
That portion of the KCC’s order mandating a $6.9 million refund with interest is reversed. The case is remanded for consideration of whether, during the months when fuel limits were exceeded, the actions of KG&E were reasonable and, if found to be unreasonable, for proper application of the ECA clause. In short, although we have affirmed the KCC’s finding of imprudence, it will still be necessary on remand to determine reasonableness under the ECA clause. | [
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Knudson, J.:
State Farm Mutual Automobile Insurance Company (State Farm) appeals from the district court’s granting of summary judgment to Wayne O, Baker. Finding no error, we affirm.
State Farm, doing business in Missouri, issued an automobile liability insurance policy to Baker, a Missouri resident. The liability section of the policy contained an out-of-state provision that allowed Baker to drive the insured automobile upon the highways of other states in full compliance with a particular state’s mandatory insurance law. The policy also included separate first-party medical payment coverage of up to $1,000 not subject to subrogation by the insurer.
In August 1983, while driving the insured automobile, Baker was involved in a two-car collision in Wyandotte County, Kansas. He received medical attention due to injury caused by the collision, for which State Farm reimbursed him $511. Baker contends the payments were made under the medical payments provision of the insuring agreement. State Farm contends that it paid Baker personal injury protection (PIP) benefits, as required under Kansas law and consistent with the out-of-state coverage clauses within the policy. At the time of the collision, Kansas required $2,000 in medical benefits as part of the personal injury protection package. K.S.A. 40-3103(k).
When Baker settled his tort claim with the driver of the other automobile, State Farm refused to endorse the settlement check over to Baker. Ultimately, State Farm filed suit seeking a declaratory judgment finding that, under the provisions of the policy and pursuant to Kansas law, it was entitled to subrogation.
Both Baker and State Farm filed motions for summary judgment. The trial court granted Baker’s motion, finding Missouri law must be applied to the construction of the insurance contract and, under Missouri law and the terms of the insuring agreement, subrogation was not permitted.
Neither party disputes the propriety of this litigation being ripe for summary judgment under their respective motions. We note summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Danes v. St. David’s Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988). In the case atibar, the terms of the written insurance- agreement are unambiguous. Thus, this litigation is a proper subject for summary judgment and presents questions of law subject to unlimited review on appeal. Atkins v. Hartford Cas. Ins. Co., 801 F.2d 346, 347 (8th Cir. 1986); Hutchinson Nat’l Bank & Tr. Co. v. Brawn, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
The parties each state the controlling issues somewhat differently. State Farm starts from the premise that the payments were PIP benefits. Conversely, Baker starts from the. viewpoint that the payments, were medical payment benefits as bargained for and provided in the insuring agreement. We belieye. it is within the framework of the issues presented on- appeal to state the dispositive issues, to be: (1) whether Kansas or Missouri, law is determinative of State Farm’s right, .to subrogation, and (2) whether State Farm is entitled to subrogation.
K.S. A. 40-3106(a) provides that a nonresident owner of a motor vehicle may not operate such vehicle on the highways of Kansas unless a motor vehicle liability policy conforming with K.S.A. 40-3107 is in effect for such vehicle. K.S.A. 40-3107(f) requires that a motor vehicle liability policy provide personal injury protection benefits to 'the named insured that, Under K.S.A. 40-3103(k), include medical benefits up to $2,000.
Based upon the above-referenced statutes and Mayer v. Harris, 224 Kan. 231, Syl. ¶ 1, 579 P. 2d 715 (1978), we conclude that a nonresident owner of a motor vehicle operated on the highways of this state is subject to the provisions of the Kansas Automobile Injury Reparations Act (KAIRA). K.S.A. 40-3101 et seq.
Baker’s automobile liability policy contains separate coverages for liability, for first-party médical benefits, and for uninsured motorist coverage.- Missouri does not have no-fáult insurance as mandated under Kansas law. In addition to liability- limits of $50,000/$100,000/$25;000, Baker’s policy in SECTION I — LIABILITY — COVERAGE A provides:, ■ . ■
“Motor Vehicle Compulsory Insurance Law or Financial Responsibility Law “1. Out-of-State Coverage.
If an insured under the liability coverage is in another state or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance, financial responsibility or similar law;
a. the policy will be interpreted to give the coverage required by the law; and
b. the coverage so given replaces any coverage in this policy to the extent required by the law for the insured’s operation, maintenance or use of a car insured under this policy.
Any coverage so extended shall be reduced to the extent other coveragfe applies to the accident. In no event shall a person collect more than once.”
Bakers policy does conform to the requirements of K.S.A. 40-3107, and it provides personal injury protection benefits, which include up to $2,000 in medical benefits. As we have noted, Baker’s policy also provides first-party medical payments insurance up to $1,000. The policy states:
“MEDICAL EXPENSES
“We will pay medical expenses, for bodily injury caused by accident, for services, furnished within one year of the date of the accident. . . .
“Persons for Whom Medical Expenses are Payable.
“We will pay medical expenses for bodily injury sustained by;
“1. a. the first person named in the declarations; . . . .”
The policy further provides:
“If There Are Other Medical Payments Coverages.
“1. Your Car.
The amount payable for medical expenses to a person who sustains bodily injury while occupying your car will not be reduced if there is other vehicle medical payments coverage.”
Is State Farm then entitled to subrogation for the $511 paid in medical benefits? To resolve this issue we will first decide whether Kansas or Missouri law is to be applied in interpreting the underlying insuring agreement and the nature of the benefits provided.
In Simms v. Metropolitan Life Ins. Co., 9 Kan. App. 2d 640, Syl. ¶¶ 1, 3, 685 P.2d 321 (1984), this court stated the general rules governing the choice of law applicable to insurance contracts: “Under Kansas law the choice of which state’s law is applicable to the construction of a contract depends on where the contract is made.” “For choice of law purposes, a contract is ‘made’ where the last act necessary to complete the contract occurs.” In the more recent case of Commercial Union Ins. v. John Massman Contracting, 713 F. Supp. 1403, 1405 (D. Kan. 1989), the rules of construction as stated in Sims were reiterated. Thus, Missouri law should be applied.
State Farm contends that the general rule is inapplicable because there is a choice of law provision in the insurance policy that provides for the policy to be interpreted according to the laws of Kansas. State Farm relies upon the already quoted provisions of the policy’s out-of-state coverage providing that “the policy will be interpreted to give the coverage required by the law.” We do not believe this contention has merit. This phrase merely requires that State Farm and its insured agree that the policy shall provide benefits mandated under Kansas law. It does not state the policy shall be interpreted under Kansas law rather than Missouri law. Quite to the contrary, the only choice of law provision is stated in the numbered conditions of the policy as follows: “6. Terms of Policy Conformed to Statute. If any terms of this policy are in conflict with the statutes of Missouri they are amended to conform to these statutes.”
For the foregoing reasons, we conclude Missouri law rather than Kansas law is applicable in construing the policy and determining the benefits afforded and paid, including those mandated under KAIRA.
We must next determine the nature of the $511 paid by State Farm. Was the money paid under the medical payments provisions of the insurance policy or was it personal injury protection benefits paid under the policy’s out-of-state coverage? In framing this issue, we have assumed in the latter event State Farm would be afforded subrogation rights. K.S.A. 1989 Supp. 40-3113a(b).
Under Missouri law, rules of construction applicable to insurance policies require that the policy language be given its plain meaning, and, if the language is unambiguous, the policy must be enforced according to such language. Briggs v. State Farm Fire & Cas. Co., 680 S.W.2d 444, 445 (Mo. App. 1984). Missouri courts follow a construction favorable to the insured wherever the language of a policy is susceptible of two meanings, one favorable to the insured and the other to the insurer. Meyer Jewelry Co. v. General Insurance Co. of Amer., 422 S.W.2d 617, 623 (Mo. 1968). Parenthetically, Kansas rules of construction are very similar if not identical. See Glenn v. Fleming, 14 Kan. App. 2d 62, 69, 781 P.2d 1107 (1989), aff'd in part, rev'd in part 247 Kan. 296, 799 P.2d 79 (1990), Howard v. Farmers Ins. Co., 5 Kan. App. 2d 499, 619 P.2d 160 (1980), rev. denied 229 Kan. 670 (1981). Thus, even if Kansas rules of construction were applied, this court’s reading of the contract would be the same.
Turning to the insurance policy, we note that the policy explicitly provides first-party medical payments coverage to the insured wholly apart from liability coverage. We also note that the policy states the medical payment coverage applies “[i]n the United States of America.” It is difficult to imagine any clearer language stating the parties’ intent that the first-party medical payments coverage would apply out of state as well as within state. The insured, Baker, is entitled under the terms of the policy to the explicitly bargained for coverage and, in the event of an out-of-state accident, replacement of that explicit coverage by coverage required under the laws of the sister state. There is no provision within the policy, nor under KAIRA, that would even remotely suggest Kansas personal injury protection benefits, statutorily mandated as part and parcel of liability coverage under a no-fault scheme, require elimination of first-party medical benefits insurance explicitly bargained for and provided in the policy. We hold that, under the circumstances of this litigation, the first $1,000 in medical benefits paid to or on behalf of Raker were under the first-party medical benefits, not under Kansas personal injury protection benefits, and not subject to subrogation. The practical result is that Raker is entitled to receive up to $1,000 in benefits plainly provided under the policy and up to an additional $1,000 in personal injury protection benefits. State Farm pays what it is contracted to pay under the policy knowing it is not entitled to subrogation and then has an additional $1,000 exposure under KAIRA, which most probably is subject to subrogation.
The parties have acknowledged that under Missouri law subrogation of medical payments under a Missouri automobile liability insurance policy is void as against public policy. See Jones v. Aetna Casualty & Surety Company, 497 S.W.2d 809, 813 (Mo. App. 1973); Travelers Indemnity Company v. Chumbley, 394 S.W.2d 418, 424-25 (Mo. App. 1965). State Farm’s policy specifically excludes subrogation for first-party medical payments.
For all of the foregoing reasons, the decision of the trial court granting summary judgment to Baker is affirmed. | [
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Vieux, D.J.:
In 1986 the City of Leavenworth entered into a contract with Dahlstrom & Ferrell Construction Company, Inc., (D&F) for the construction of a community center. D&F provided a public works bond as required by K.S.A. 60-1111 to ensure payment of indebtedness incurred in the construction of the building. This bond was secured through United States Fidelity and Guaranty Company, Inc. (USF&G).
In 1987 D&F subcontracted with High Tech Construction, Inc., (HTC) for certain mechanical work on the project. HTC, in turn, subcontracted with ACI, Inc., for this same work. ACI ordered supplies from Wichita Sheet Metal Supply, Inc., (WSM) and Air Moving Equipment, Inc., (AME) which were allegedly delivered to and incorporated into the project.
As a result of ACI filing for bankruptcy protection in 1988, WSM and AME were not paid for the materials provided. WSM and AME separately .filed actions against D&F and USF&G for payment. In both cases, D&F and USF&G filed motions for summary judgment. The motions were sustained by the trial court, which determined that, as a matter of law, supplies to “sub-subcontractors” were not covered by K.S.A. 60-1111 public works bonds. WSM and AME each timely appealed the orders, and the cases are now consolidated.
Summary judgment is proper when the record conclusively shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ” Danes v. St. David’s Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988); K.S.A. 60-256(c). “ ‘Where the facts presented in the motion are subject to conflicting interpretations or reasonable persons might differ as to their significance summary judgment is improper.’ ” Busch v. City of Augusta, 9 Kan. App. 2d 119, 122, 674 P.2d 1054 (1983). “An appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. It should take such party’s allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant.” Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶ 3. “Factual inferences tending to show triable issues are to be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will be denied.” Ruebke v. Globe Communications Corp., 241 Kan. 595, 602, 738 P.2d 1246 (1987).
The facts, as stated above, are not in dispute. The case turns on legal conclusions regarding the scope of liability on public works bonds.
The bond required by K.S.A. 60-1111 must be of suflicient sureties, “conditioned that such contractor or the subcontractor of such contractor shall pay all indebtedness incurred for labor furnished, materials, equipment or supplies, used or consumed in connection with or in or about the construction of such public building.” The filing of such a bond bars the attachment of any lien and discharges existing liens, its obvious purpose to preclude the seizing and selling of public property to satisfy liens for labor and materials. The statute specifically states that “[a]ny person to whom there is due any sum for labor or material furnished . . . may bring an action on such bond for the recovery of such indebtedness.” (Emphasis added.) K.S.A. 60-llll(b).
With no on-point Kansas precedent, the trial court accepted the defendants’ argument that this statute, K.S.A. 60-1111, coupled with the mechanic’s lien statute, K.S.A. 1988 Supp. 60-1103, and related Kansas case law, precludes suppliers to sub-subcontractors from suing on the bond. We disagree.
The Kansas Supreme Court has stated that public works bonds filed pursuant to K.S.A. 60-1111 are substitutes for mechanics’ liens, and, in general, it is appropriate to analogize rules applicable to mechanics’ liens to contractors’ bonds. J. W. Thompson Co. v. Welles Products Corp., 243 Kan. 503, 508-09, 758 P.2d 738 (1988). Moreover, contractors’ bonds are for the use of all persons in whose favor liens might occur. 243 Kan. at 508.
K.S.A. 1988 Supp. 60-1103(a), the mechanic’s lien statute, provides:
“Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor.” (Emphasis added.)
Defendants argue and the trial court agreed that, as to subcontractors, the language in K.S.A. 1988 Supp. 60-1103(a) restricts coverage to only those agreements with first-tier subcontractors. The court apparently based its conclusion on the omission of the term “sub-subcontractor” in either statute, K.S.A. 1988 Supp. 60-1103 or K.S.A. 60-1111, and on Gard’s comments to 60-1103 in his Kansas Code of Civil Procedure 2d Annotated (1979). The trial court mischaracterized Gard’s comments. Regarding 60-1103(a), Gard writes:
“[T]he right to a lien is expressly extended to protect persons furnishing labor, equipment, materials or supplies not only under an agreement with the contractor but also with ’a subcontractor of the contractor.’ This is a rejection of the principle of Nixon v. Cydon Lodge, [56 Kan. 298, 43 Pac. 236], interpreting the former statute and holding that the lien provisions of the statute did not cover a subcontractor of a subcontractor. The extension under this subsection is not ad infinitem but protects only those dealing with a subcontractor of the one having the original contract.”
Again, in his comment to 60-1111, the controlling statute in this case, Gard explains:
“Prior to the amendment of the former statute in 1931 it had been held in Indiana Limestone Co. v. Cuthbert, [126 Kan. 262, 267 Pac. 983], that limestone furnished to a subcontractor, and used in a building, was not the subject of a lien by the supplier. The 1931 amendment made the liability under the bond extend to the obligations of ‘subcontractor or subcontractors of said contractor or contractors’ and thus repealed the effect of the Indiana Limestone decision. So now suppliers of subcontractors are protected. This is consistent with the new policy of Section 60-1103 extending to subcontractors of subcontractors the right to file liens.”
Kansas cases addressing scope of liability under public works bonds, while factually distinguishable from the present case, provide rationale consistent with allowing suppliers of sub-subcon tractors to reach the bond. “The purpose of K.S.A. 60-1111 is to protect the contributions of those assisting in the construction of public improvements and public works and the bond given in compliance with the statute must be construed to accomplish the end which the legislature had in view.” Cedar Vale Co-op Exch., Inc. v. Allen Utilities, Inc., 10 Kan. App. 2d 129, 131, 694 P.2d 903, rev. denied 237 Kan. 886 (1985) (supplier of first-tier subcontractor may sue on a public works bond) (citing Leidigh & Havens Lumber Co. v. Bollinger, 193 Kan. 600, 602, 396 P.2d 320 [1964]).
“A statutory public works bond has two characteristics which are important to a discussion of this issue. First, such a bond applies to ’all indebtedness’ incurred in making public improvements. Thus, no privity with the general contractor is required. Second, such a bond, properly filed, acts to discharge all liens filed in connection with the construction.” Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, 246, 662 P.2d 1195 (1983) (contractor and surety estopped from excluding sub-subcontractor from coverage of statutorily inadequate bond).
The language of K.S.A. 60-llll(b) is supportive as well. It specifically permits actions for recovery on public works bonds by “[a]ny person to whom there is due any sum for labor or material furnished.”
It is argued by the defendants as well as in the amicus brief of the Associated General Contractors of Kansas, Inc., (AGC) that WSM and AME are remote parties over which the general contractor has no control and that allowing them to reach the bond allows any party supplying materials to any tier of subcontractor to reach the bond. It is noted that the extension of protection to remote suppliers, suppliers of a supplier, has been addressed and has been explicity precluded. 243 Kan. at 510 (applies discussion of K.S.A. 60-1111 predecessor in Leidigh & Havens Lumber Co. v. Bollinger, 193 Kan. at 603; Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, 267 Pac. 983 [1928]). The instant case, however, is only addressed to the immediate supplier to a sub-subcontractor. Moreover, when viewed in light of the mechanic’s lien statute, first-tier suppliers are entitled to liens because they have “an agreement” with a subcontractor, which, as above, is construed to include agreements with sub-subcontractors.
The amicus brief addresses'possible adverse effects of protecting suppliers of any tier subcontractor. This case, however, involves only a second-tier subcontractor, and, therefore, may not operate as AGC envisions. Furthermore', restricting protection to only those in privity with the general contractor contravenes both the purpose and the meaning of-K.S.A. 60-1111, as previously discussed. The court also notes-that,-in this instant case the general contractor sought to insulate itself-from just this type of problem by requiring the subcontractor-to post its own bond. The general contractor, however, apparently failed to enforce that particular element of its contract with its subcontractor.
The defendants further urge that the plaintiffs are precluded from reaching the bond by the language of the bond itself. The court rejects this argument. When a statute requires a bond to be given, the statutory terms and. conditions will be read into the bond and conditions not required by statute will be stricken from the bond as surplusage. Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 78, 415 P. 2d 236 (1966). In Arrowhead Construction Co. v. Essex Corp., 233 Kan. at 246, a bond with very similar language was held not in compliance with K.S.A. 60-1111 and was endowed by the court with the terms and conditions of the statute estopping the contractor and surety from excluding a sub-subcontractor from bond protection.
Pursuant to the foregoing, it is concluded that the trial court erred in granting the defendants summary judgment. Defendants were not, as a matter of law, entitled to summary judgment.
The next issue on appeal is whether the trial court erred in finding that no contract existed between AME and D&tF. AME contends that a contract existed between it and D&F, apparently to establish its eligibility to recover on the bond consistent with the trial court’s view of bond coverage as expressed in the prior WSM decision. AME further contends that whether a contract existed was a question of fact and, therefore, was inappropriate for determination in a summary judgment. The second argument will be addressed first. WSM does not assert these arguments.
The scope of appellate review of summary judgment cases discussed in Issue I is equally applicable here. Although all facts and reasonable inferences are to be viewed in favor of the party opposing summary judgment, the opposing party “has the affirm ative duty to come forward with facts to support its claim, although it is not required to prove its case.” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
AME contends the trial court erroneously found there was no contract between AME and D&F. “The question as to whether a binding contract was entered into depends upon the intention of the parties and is a question of fact.” Arrowhead Constr. Co., 233 Kan. at 248.
AME argues that usage of trade- as defined in K.S.A. 84-1-205(2) may be used to establish the formation of an oral contract and that AME’s delivery of supplies to the job site constitutes usage of trade. D&F disputes whether AME delivered supplies directly to the job site or to ACI. In support of its claim, AME provided the trial court with an affidavit from Don Hembree, president of AME, stating that he shipped the items directly to the job site. Likewise, D&F submitted an affidavit of Kevin Kelly, D&F’s project manager, stating that AME “allegedly furnished supplies only to ACI who then furnished such supplies to HTC on the project,” The fact regarding delivery was, therefore, controverted.
To preclude summary judgment, however, a disputed issue of fact must be material. Bacon, 243 Kan. at 307. “If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.” Secrist v. Turley, 196 Kan. 572, 575, 412 P.2d 976 (1966). In light of the trial court’s decision 19 days earlier in the WSM case, finding that only a party to an agreement or contract with a subcontractor or general contractor could reach a public works bond, the existence of a contract between AME and D&F would allow it to prevail where WSM had lost. The factual dispute over contract formation was material to AME’s case.
By submitting Hembree’s affidavit, AME met its affirmative duty to come forward with facts to support its claim. The court, therefore, erred in finding that no contract existed between AME and D&F.
Because plaintiffs are, as a matter of law, covered under the public works bond, and AME’s contract claim was an attempt to establish coverage under the bond via the trial court’s erroneous conclusions of law, remand on the contract claim is unnecessary.
The summary judgment against the plaintiffs is reversed, and the matter is remanded for further proceedings in accordance with this decision. | [
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Briscoe, J.:
Defendants Phillip and Dorothy Kissling appeal a summary judgment setting aside a tax foreclosure sale in favor of plaintiff Michael A. Newman, the alleged owner of the property who had not received notice of the tax foreclosure proceeding. It is undisputed that Newman’s interest in the property was not of record. We reverse after concluding that, although the county was involved in a prior suit which quieted title in third parties subject to Newman’s right to redeem, any knowledge garnered from that prior suit was not sufficient to require the county either to inquire regarding Newman’s present interest in the property or to provide notice to Newman in the subsequent tax foreclosure action.
The facts in this case are not in dispute. In 1976, Newman entered into an installment contract to purchase 20 acres of vacant land from the Eilerts and others (all of the owners are jointly referred to hereafter as “the Eilerts"). Newman is a licensed realtor, knowledgeable of the recording requirements involved in the typical real estate transaction.
When no payments were made on the contract for three years, the Eilerts brought an equitable foreclosure action against Newman in 1986. The Board of County Commissioners of Shawnee County was also named as a party defendant because real estate taxes on the 20-acre tract were delinquent for the years 1981, 1982, 1983, and 1984 and were due and unpaid for 1985. Pursuant to an agreed journal entry, Newman was awarded 3 acres of land and was also given the right to redeem the remaining 17 acres before midnight on June 30, 1986:
“6. That the defendant should be given the opportunity to redeem the remainder of said tract of approximately 17 acres by paying the remaining principal sum due under the contract with accrued interest, the court costs and publication fees in this action on or before midnight, June 30, 1986.”
If Newman did not redeem the land, title was quieted in the name of the original sellers, the Eilerts.
“7. That in the event the defendant, Michael A. Newman, fails to redeem said property as aforesaid within said period of time, then title to the remainder of said tract of approximately 17 acres should be quieted in [the Eilerts] and the plaintiffs should be entitled to a writ of possession restoring them to possession and title of said remaining tract.”
The journal entry further provided:
“It is Further Ordered, Adjudged and Decreed that title in and to the following tract is hereby quieted in [the Eilerts] free and clear of any and all claims of any of the defendants and subject only to the right of redemption of the defendant, Michael Newman, as hereinbefore provided.”
Newman redeemed, the 17 acres prior to the redemption deadline. Nothing was filed in the action to evidence that Newman had exercised his right to redeem. The escrow agent sent the deed to Newmán, but he failed to record the deed.
As a party to the Eilert action, the county, through the county counselor, had. knowledge of the above-quoted provisions of the journal entry which set forth Newman’s right to redeem. However, the county counselor was not notified in any way of Newman’s subsequent redemption of the property.
No real estate, taxes had been paid on the 17-acre tract since 1985. In order to; institute tax foreclosure proceedings, Shawnee County contracted With a title company to have it determine who owned the. property. The title company found no evidence of record that Newman had any interest in the property. Included in the title company’s search was a review of the court records in the Eilert action. As there was no indication in those records that Newman exercised his right to redeem or any deed located which established Newman had any interest in the property, the title company concluded,Newman had no interest in the property and was not entitled to any notice of the tax foreclosure action. Therefore, Newman was not named as a party defendant in the tax foreclosure action and the county did not .personally serve Newman with notice of the tax foreclosure sale. The county did publish notice of the . tax sale as required by K.S.A. 79-2801, thereby setting forth the legal description of the property. At the tax sale held on May 16, 1988, Roy Stubblefield purchased the 17 acres for $1,100.
On June 20, 1988, the Kisslings purchased the property from Stubblefield for $2,605. The Kisslings were aware that Stubble-field had purchased the ■ land at a tax sale a month earlier. The Kisslings received a title insurance policy which excepted any equitable and legal rights of any party to set aside tax sales.
On July 18, 1988, Newman recorded the deed he had received from the Eilerts. Newman then filed the present suit to non-confirm and set aside the foreclosure sale and to quiet title in Newman. The trial court granted Newman the relief he requested, finding the county’s participation in the prior suit where Newman was given a right to redeem was enough to require the county to inquire as to Newman’s present interest in the property when the county instituted tax foreclosure proceedings.
Was Newman entitled to personal service of notice of the tax foreclosure sale?
The Kisslings contend Newman was not entitled to personal service of notice of the tax sale because he failed to record any interest he had in the land. K.S.A. 79-2801 states in part:
“Whenever real estate has been or shall be sold and bid in by the county at any delinquent tax sale . . . the board of county commissioners shall order the county attorney or county counselor ... to institute an action in the district court . . . against the owners or supposed owners of the real estate and all persons having or claiming to have any interest therein or thereto ....
“A summons shall be issued and personally served or publication made as provided in other cases under the code of civil procedure.” (Emphasis added.)
The Kisslings rely on two cases to support their claim that Newman was not entitled to personal service: Atchison County v. Lips, 69 Kan. 252, 76 Pac. 851 (1904); and Board of County Comm’rs. v. Groomer, 166 Kan. 593, 203 P.2d 237 (1949).
In Lips, the defendant, who had purchased a tract of land but had failed to record the deed, asked that the sale of the property at a tax sale be set aside because he had not received notice. In denying his motion to set aside the sale, the court concluded that defendant was not entitled to personal service because he had failed to record his interest in the land. The court held the county may rely on the record and assume that no person has actual title to the land except those whose interest is of record. In Groomer, the Lenskis asked to be added as defendants in a motion to confirm a tax foreclosure sale. They claimed they had purchased the land but had forgotten to record their deed. The trial court granted the Lenskis relief by not confirming the sale and allowing them to redeem the property. The Supreme Court disagreed with the trial court’s findings, stating the tax foreclosure was filed against the record title owners. Since the Lenskis failed to record their deed, it was proper for the attorneys preparing the foreclosure action to rely on the record and name as defendants only those individuals who were title holders of record. In both Lips and Groomer, the court restated the general rule that an unrecorded deed is only valid between the parties executing the deed and those who have notice of the deed.
Newman does not dispute the holdings of these cases but contends his case is distinguishable. Newman argues the county’s knowledge of his right to redeem is an additional fact not present in the cases cited by the Kisslings and it is this fact which required the county to provide him with notice in this case.
In support of his contention, Newman cites Board of Leavenworth County Comm’rs v. Cunningham, 5 Kan. App. 2d 508, 619 P.2d 525 (1980), rev. denied 229 Kan. 669 (1981). Cunningham purchased and took possession of a tract of land from Collins, continually occupying it from the date of purchase. Cunningham failed to record his deed. Taxes were not paid and a tax foreclosure action was filed. The county searched the record and found Collins to be the record title holder. In order to personally serve Collins, a deputy sheriff went to the residence on the property in question. There the deputy was advised by an unidentified man that he had purchased the property and that Collins had moved.
In delineating the issue presented, the court stated:
“As we view this case, the sole issue before us is whether Cunningham had the right to some type of notice from the county under these circumstances, not whether the county always has a duty to inquire of the occupier of the land involved in a tax foreclosure action whether that person claims an interest in or ownership to the land in order to satisfy due process requirements. Here the county did inquire and had actual notice that the person occupying the land claimed to be the owner. This is a far different question than whether an absolute duty to inquire exists.” 5 Kan. App. 2d at 510. (Emphasis added.)
The court found the county, through its agent, was put on notice of the existence of a person claiming an interest in the real estate. The court then stated that 79-2801 requires the county to serve all persons claiming an interest in the property and this require ment is not limited to owners of record, but also extends to require notification of those persons who the county knows are occupying the land and claiming ownership. The tax sale was set aside on the basis that the county had failed to personally serve a person who the county knew was in possession of the property and who claimed ownership. The court distinguished Lips and Groomer on the basis that the county in Cunningham was put on notice of the existence of a person in possession of the property who claimed an interest in it.
Newman also relies on Board of Johnson County Comm’rs v. Roberts, 231 Kan. 135, 643 P.2d 138 (1982). In Roberts, in an earlier tax foreclosure action, Carson and Anderson, who were not named as parties to the action, had filed a pleading claiming ownership of one of the tracts subject to foreclosure. The foreclosure action was dismissed as to that tract and thereafter the county filed a second tax foreclosure action including the same tract. Neither Carson nor Anderson was served with notice of the second foreclosure action. The Supreme Court stated that Carson and Anderson were clearly persons having or claiming to have an interest in the land within the meaning of 79-2801. Their claim was asserted in the prior foreclosure action and, thus, the assistant county counselor had knowledge of the claim. The court held that, under the circumstances, failure to join Anderson and Carson as party defendants and to serve them with process did not comply with the requirements of 79-2801. The court ruled the foreclosure sale was defective and the district court was correct in setting it aside.
In applying the agency rationale followed in Cunningham and Roberts, we agree that the county, through the county counselor, had notice of Newman’s right to redeem. However, the journal entry conveying that notice also stated that, unless Newman exercised that right to redeem, title to the property was quieted in the Eilerts. Expiration of the redemption period without Newman giving any notice to the county of his redemption, through any document filed or recorded, extinguished any notice the county had that Newman still claimed the property. The county was not required to serve Newman in the subsequent action because the county did not have notice that he claimed an interest in the real estate.
Although Newman admits he did nothing to establish his redemption of record, he argues the county still had a duty to inquire regarding the title to the property because the Eilerts had not requested a writ of possession. Pursuant to the journal entry, after Newman’s redemption period expired, title was quieted in the Eilerts. While the Eilerts would have been entitled to request a writ of possession to eject Newman or others from physical possession of the property, filing of the writ was not necessary to establish title to the property. See K.S.A. 60-1001; Hillyard v. Fick, 89 Kan. 108, 130 Pac. 675 (1913). Therefore, the absence of a writ, of possession in the court records would not have placed the county on notice that further inquiry was necessary to ascertain who the title holders were.
Is Stubblefield an indispensable party to this action?
The Kisslings also argue this case should have been dismissed for failure to join an indispensable party. Stubblefield purchased the land at the tax sale and then sold it to the Kisslings. The Kisslings claim he is an indispensable party to this action.
Stubblefield is neither an owner nor a supposed owner of the land in question and he does not claim an interest in the land. Therefore, he is not an indispensable party pursuant to K.S.A. 79-2801.
K.S.A. 60-219 states in part:
“(a) Whenever a ‘contingently necessary’ person, as hereafter defined, is subject to service of process, he shall be joined as a party in the action. If he has not been so joined, the court shall order that he be made a party. . . .
“A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action ....
“(b) If a contingently necessary person cannot be made a party, the court shall determine whether in equity and good conscience the action ought to proceed among the parties before it or ought to be dismissed.”
The Kisslings rely on McDonald v. National Bank, 58 Kan. 461, 49 Pac. 59 (1897), as authority for claiming Stubblefield is an indispensable party. In McDonald, the purchasers at the tax sale were named parties in a motion to set aside a sale of real estate. The purchasers were never served with notice of the suit; however, they were “constructively present” when the motion was heard. The court stated that, since the purchasers were constructively present at the hearing, the adverse ruling could not he overruled even though the purchasers were not. properly served.
"The purchaser [at a tax sale], by his hid, the payments of the purchase money, and the sheriffs return of the sale, becomes a party to the record .... [H]is interests may be adverse to those of both the plaintiff and the defendant. He is not obliged to depend on either of them to protect his rights, nor has cither of them authority to speak for him unless he gives it." 58 Kan. at 4(52.
The Kisslings rely on this language in claiming Stubblefield has such an interest in the outcome of this suit that complete relief cannot be granted in his absence, making him a contingently necessary party.
The present case can be distinguished from McDonald. There, the purchaser was a named party to the action and was seeking relief in the suit. See Sumner County Comm’rs v. Avis, 163 Kan. 388, 391, 183 P.2d 462 (1947). Here, Stubblefield is not a named party nor is he seeking any recourse in the action. In McDonald, the court was trying to protect the rights of the original purchaser at the foreclosure sale. Here, the Kisslings are'not concerned with Stubblefield’s rights but are only trying to protect their own interests. Stubblefield does not claim any interest in the land. Complete relief can be afforded the parties without joining Stubblefield as a party.
Reversed and remanded with directions tp enter summary judgment in favor of the Kisslings. | [
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Brazil, J.:
Stephen W. Sylva appeals a district court order denying his motion to modify sentence, arguing the court was required by K.S.A. 1989 Supp. 21-4603(3)(a) to grant probation because probation was recommended in the report of the State Reception and Diagnostic Center (SRDC) and because probation was a presumptive sentence for him as a first-time class D felon. We affirm.
Sylva pled guilty to one count of attempt to sell cocaine (K.S.A. 1987 Supp. 65-4107[b][5], K.S.A. 65-4127a, K.S.A. 21-3301), a class D felony, and one count of attempt to sell marijuana (K.S.A. 1987 Supp. 65-4105[d][13], K.S.A. 1987 Supp. 65-4127b[b][3], K.S.A. 21-3301), a class D felony.
A sentencing hearing was held in which Sylva moved for probation. The court denied the motion and sentenced Sylva to commitment to the custody of the Secretary of Corrections for a term of two to five years for each offense. SRDC issued its report, recommending that Sylva be considered a candidate for probation. A hearing was held in which Sylva’s motion for modification of sentence was denied. Sylva filed a motion to reconsider the motion to modify, which was also denied.
K.S.A. 1989 Supp. 21-4603(3)(a) provides that at any time within 120 days of sentencing the district court shall modify a sentence imposed “if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” K.S.A. 1989 Supp. 21-4603 became effective July 1, 1989. The report filed by SRDC recommended Sylva “be considered a candidate for probation.”
Prior to the 1989 amendment, K.S.A. 21-4603(3) provided that the court “may” modify a sentence. As amended, the court shall modify a sentence if recommended by the SRDC unless the court makes the required findings, The constitutionality of the amendment has not been challenged in this appeal and need not be considered because we conclude that the 1989 amendment is not applicable here.
K.S.A. 1989 Supp. 21-4606a also became effective on July 1, 1989. It provides:
“The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class D or E felony or convicted of an attempt to commit a class D felony. shall be probation, unless the conviction is of a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated or the crime is a felony violation of K.S.A. 65-4127b, and amendments thereto, which involved the manufacture, sale, offer for sale or possession with intent to sell such controlled substances. In determining whether to impose the presumptive sentence, the court shall consider any prior record of the. person’s having been convicted or ,having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult. If the presumptive sentence provided by this section is not imposed, the provision of K.S.A. 1989 Supp. 21-4606b shall apply.” (Italics indicates 1989 amendments.)
Sylva was convicted of one count of attempt to sell cocaine, which is a class D felony, and one count of. attempt to sell marijuana, which is a class D felony. Because attempt is defined by K.S.A. 21-3301, Sylva was not convicted of a crime specified in articles 34, 35, or 36 of chapter 21 of the Kansas statutes. Similarly, Sylva was not convicted of K.S.A. 1987 Supp. 65-4127b but rather was convicted of attempt to violate K.S.A. .1987 Supp. 65-4127b, which prohibits the sale of cocaine or marijuana. Séé Sutton v. State, 6 Kan. App. 2d 831, 636 P.2d 187, rev. denied 230 Kan. 819 (1982) (K.S.A. 1977 Supp. 21-46Í8, which provided that probation shall not be granted to any defendant convicted of a crime set out in article 34 of chapter 21 of thé Kansas statutes in which the defendant used a firearm in the commission thereof, applies to the crime of murder [K.S.A. 21-3401] but does not apply to the crime of attempted murder because attempted murder is not an article 34 crime.). If the 1989 amendments to 21-4606a are applicable in this case, then Sylva is entitled to a presumption of probation. We conclude they are not applicable.
“While it is ... a general rule of statutory construction that a statute will operate prospectively unless its language clearly indicates the contrary, that rule is modified where the statutory change is merely procedural or remedial in nature and does not affect the substantive rights of the parties. State v. Hutchinson, 228 Kan. 279, Syl. ¶¶ 6, 7, 615 P.2d 138 (1980). In Hutchinson we stated:
"As related to criminal law and procedure; substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.’ 228 Kan. at 287.” State v. Nunn, 244 Kan. 207, 216, 768 P.2d 268 (1989).
In Nunn, the Supreme Court found that criminal statutes of limitation are remedial or procedural, not substantive, and could be applied retroactively. ‘ '
In State v. Henning, 3 Kan. App. 2d 607, 609, 599 P.2d 318 (1979), this court held that K.S.A. 1978 Supp. 21-4608(5) was substantive and must be applied prospectively. That section of the statute extended the permissible authorized sentencing to allow a Kansas sentence to run concurrently with another state’s sentence for an offense committed prior to the defendant’s Kansas sentence.
For purposes of distinguishing between substantive statutes that prescribe punishment as opposed to merely procedural statutes, we conclude that K.S.A. 1989 Supp. 21-4603(3)(a), changing sentence modification, and K.S.A. 1989 Supp. 21-4606a, changing the presumptive sentence law, are similar to the statute considered in Henning. We further conclude that K.S.A. 1989 Supp. 21-4603(3)(a) and K.S.A. 1989 Supp. 21-4606a are substantive statutes relating to punishment and must be applied prospectively.
The penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense. Kelsey v. State, 194 Kan. 668, 400 P.2d 736 (1965). The offenses in this case occurred on or about March 3 and 8, 1988, prior to the effective date of K.S.A. 1989 Supp. 21-4603(3)(a) and K.S.A. 1989 Supp. 21-4606a. Those statutes are not applicable in this case.
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Rees, J.:
Defendant Thomas L. McClanahan appeals from his jury conviction of indecent liberties with a child (K.S.A. 1989 Supp. 21-3503[l][a] or [b]) committed in November to December 1987.
At trial, the State introduced damning hearsay evidence, testimonial evidence of out-of-court statements made by the child victim declarant, L.S., to prove the truth of the matter stated. The evidence was admitted under the K.S.A. 1989 Supp. 60-460(dd) hearsay exception.
Presently pertinent are these statutory provisions:
K.S.A. 60-407
“Except as otherwise provided by statute (a) every person is qualified to be a witness, and . . . (c) no person is disqualified to testify to any matter . . . .”
K.S.A. 60-417
“A person is disqualified to be a witness if the judge finds that . . . the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury . . .
K.S.A. 1989 Supp. 60-460
“Evidence 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, is hearsay evidence and inadmissible except:
■ “(dd) .... In a criminal proceeding ... a statement made by a child, to prove the crime ... if:
“(I) The child is alleged to be a victim of the crime . . .; and
“(2) the trial judge finds, after a hearing on the matter, that [1] the child is disqualified' or unavailable as a witness, [2] the statement is apparently reliable and [3] the child was not induced to make the statement falsely by use of threats or promises.”
K.S.A. 60-459
“As used in K.S.A. [1989 Supp.] 60-460, its exceptions and in this section:
“(g) ‘Unavailable as a witness’ includes situations where the witness is . . . (2) disqualified from testifying to the matter . . . .”
The child victim, L.S., was approximately five years and six months of age at the time of the alleged offense. She was approximately five years and eight months of age when the preliminary hearing was held some two months later, in February 1988, and six years and seven months of age when the case was tried in January 1989.
At the preliminary hearing, L.S. was questioned by the State and defense counsel. Based upon her responses and, in particular, her demonstrated inability to respond to posited inquiries, the trial judge held that L.S. was not “competent” to testify as a witness. In effect, the trial judge ruled that L.S. was disqualified to be a witness upon a finding that she was “incapable of expressing . . . herself ... so as to be understood.” See K.S.A. 60-417. Thus, in February 1988, she was held to then be “unavailable as a witness” as K.S.A. 60-459(g)(2) defines that phrase. Accordingly, it was held in February 1988 that L.S. then was a child victim that was “disqualified or unavailable as a witness” for the purposes of the K.S.A. 1989 Supp. 60-460(dd) hearsay exception.
When the case came on for trial in January 1989, some eleven months after the preliminary hearing, a “dd hearing” was conducted prior to the State’s proffer of the challenged hearsay evidence. At that hearing, the trial judge found and held that the child victim hearsay evidence to be proffered by the State involved statements made by L.S. that were apparently reliable and that L.S. had not been induced to make them falsely by threat or promise. See K.S.A. 1989 Supp. 60-460(dd).
Of particular importance, at the January 1989 trial “dd hearing,” the trial judge declined to again consider the question whether L.S. was disqualified or unavailable to be a witness. Instead, the trial judge ruled that having found in February 1988 that L.S. then was “disqualified to be a witness,” she continued to be disqualified or unavailable as a witness in January 1989.
At the February 1988 preliminary hearing, the trial judge had stated:
“Four times she was unable to answer the question as to where he touched her, and we proceeded to reduce her to something less than the cheerful little girl that first came into the courtroom.
“I determine from what I witnessed in the courtroom here from the witness stand that that child is incompetent to testify about the allegations set forth with regard to sexual abuse on the part of this defendant. She is therefore unavailable . . . .”
The transcript of the trial “dd hearing” in January 1989 reports this:
“[DEFENSE COUNSEL]: . . . With regard to [L.S.’] out-of-court declaration, there’s been no showing that she’s unavailable as of today. . . . [T]his Court has no competent evidence upon which it can conclude that as of this day she’s unavailable. . . . [I]t has been almost one year since the Court last took a look at [L.S.], and she has had an opportunity to mature to the point that it would be pure speculation for the Court to extrapolate what she may have demonstrated in February of ’88 is exactly the same as it is now. ...
“[THE COURT:] . . . [Counsel] raises [a] . . . legal question, which I would paraphrase as what requirement is there upon the Court to update a Double D hearing to shortly before the actual trial. In this case there was considerable delay from the initial preliminary hearing, . . . for good reason, . . . now here we are again in January . . . and eleven months have gone by since the Double D hearing. From what I remember of what was then a five-year-old little girl, I don’t feel compelled to bring her back in again at six and put her through the same ordeal. I know of no require ment that she has to go through it twice, and I continue to believe that she’s, unavailable as a witness. . . . The unavailability in this case is not because she’s someplace else. . . . This child is considered to be unavailable because I have determined she’s incompetent to testify and not because of where she is.”
These various rulings are summarized in the journal entry of judgment as follows:
“[0]n this 18th day of February, 1988, this matter comes on for preliminary hearing ....
“[T]he State requests a hearing pursuant to K.S.A. 60-460(dd) in conjunction with the preliminary hearing.
“[T]he State presents evidence.
“[T]he Court determines that [the] alleged victim is incompetent to testify.
“[0]n this 23rd day of January, 1989, this matter comes on for jury trial ....
“[T]he State requests a hearing pursuant to K.S.A. 60-460(dd) regarding statements made by the alleged victim.
“[T]he State presents evidence ....
“[T]he Court finds the motion pursuant to K.S.A. 60-460(dd) should be granted in that the statements appear to be reliable.”
It is our opinion, and we hold, that the trial judge erred in admitting the child victim hearsay evidence at the January 1989 trial. The flaw in his decision to admit the hearsay evidence under K.S.A. 1989 Supp. 60-460(dd) was his reliance upon his February 1988 determination that L.S. then was “disqualified or unavailable as a witness.”
Admittedly, L.S. was quite young both in February 1988 and in January 1989. Further, it may be assumed that a second “dd hearing” in January 1989 on the question of witness disqualification or unavailability would entail a risk that it would prove to be unpleasant and emotionally disturbing to L.S. Nonetheless, to make the necessarily implicit finding that L.S.’ capability to express herself so as to be understood had not increased or improved by her maturation over that period of almost a year was speculative at best. And counterbalancing well-intentioned deference to a risk of upsetting L.S. is consideration of the defendant’s Sixth Amendment fight of confrontation.
An accused’s constitutional right of confrontation in sexual abuse cases has been the subject of judicial attention in several recent appellate decisions. Included among these are Coy v. Iowa, 487 U.S. 1012, 101 L. Ed. 2d 857, 108 S.Ct. 2798 (1988); State v. Siard, 245 Kan. 716, 783 P.2d 895 (1989); State v. Chisholm, 245 Kan. 145, 777 P.2d 753 (1989); State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (1989).
Plainly, the admission of hearsay evidence under K.S.A. 1989 Supp. 60-460(dd) in cases such as the one before us impinges upon the accused’s right of confrontation. But, as said in Siard, those cases teach:
“[T]he confrontation clause of the -Sixth Amendment guarantees the defendant the right to a face-to-face confrontation with the witnesses against him during trial. . . . [T]here may be occasions when an important public policy requires exceptions to the general rule. . . .
“. . . In Eaton, 244 Kan. 370, we held:
“ ‘The right to confrontation of a witness under the Kansas and United States. Constitutions includes the right of the accused to face-to-face confrontation while a victim/accuser is testifying against the accused.’ Syl. ¶ 1.
“ ‘The fundamental right of a defendant to confront a witness in a criminal trial is not absolute and has exceptions where necessary to further ap important public policy.’ Syl. ¶ 2.
“[B]efore a defendant may be deprived of a face-to-face confrontation of the victim at trial the State must show an important public policy consideration for doing so.” 245 Kan. at 719-20.
Although Coy, Siard, Chisholm, and Eatoy. concern the .screening of the child victim witness and the accused from one another at trial, it remains that those cases teach that the accused’s right of confrontation is not to be taken lightly. In Coy, this appears:
“[T]he Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. . . . [W]e have described the ‘literal right to “confront” the witness at the time of trial’ as forming ‘the core of the values furthered by the Confrontation Clause.’ . . .
“The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. . . . “[F]ace-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.” 487 U.S. at 1016-1020.
Given the defendant’s constitutional guarantee of the right of confrontation, we conclude that the trial judge erred in rejecting the defendant’s request for a second “dd hearing” on the subject of the child victim’s disqualification or unavailability at the time of trial. The hearing denied would have been analogous to a Jackson v. Denno hearing. Absent resolution of the disqualification or unavailability question establishing fulfillment of the prerequisites of K.S.A. 1989 Supp. 60-460(dd), the challenged hearsay evidence was inadmissible.
With reluctance, we conclude that we must remand this case for a new trial. Just as it was incorrect for the trial judge to determine that the child victim was an unavailable witness in January 1989 on the ground that she had been found to be unavailable eleven months previously, it would not be appropriate to remand the case for a hearing to now determine whether she was disqualified or unavailable at the time of trial in January 1989.
It has not been suggested that we affirm this case on the ground of harmless error. Even if that were suggested, we could not agree to that disposition. We do not see that the error was harmless.
In view of our conclusion that this case must be remanded for a new trial, we need not and do not address the defendant’s contention that the trial judge erred in declaring a mistrial when the case first came on for trial in September 1988.
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Briscoe, J.:
Defendants Board of Shawnee County Commissioners (Commissioners), Shawnee County Zoning Administrator (Zoning. Administrator), and members of the Shawnee County Board of Zoning Appeals (Zoning Board) appeal from a summary judgment entered in favor of plaintiffs, Margaret and Kenneth Corbet, which reversed the Zoning Board’s decision to require a special use permit for operation of a wildlife hunting preserve. We affirm the district court’s ruling and conclude the Corbets’ proposed use of their land as a hunting preserve is an agricultural use which does not require a special use permit.
Margaret is the owner of 95 acres in rural Shawnee County. Her son, Kenneth, is a purchaser of the real estate under a contract for deed. The real estate is located outside the three-mile limit of the city limits of Topeka and is zoned “RA-1” agricultural. The Corbets filed an application for a special use permit to operate a wildlife hunting preserve and the Topeka-Shawnee County Metropolitan Planning Commission (Planning Commission) recommended disapproval. On advice of counsel, the Cor-bets withdrew the application prior to formal action by the Commissioners and continued operation of the preserve. After an adjoining landowner complained, the Commissioners began an investigation and sought the opinions of the Planning Commission staff, the Zoning Administrator, and the Shawnee County Counselor (Counselor). The Planning Commission and the Zoning Administrator concluded the zoning regulations require that a landowner first obtain a special use permit to operate a hunting preserve on RA-1 agricultural property. The Counselor concluded a special use permit is not required.
The Zoning Administrator issued a violation notice advising the Corbets to cease operation of their hunting preserve until a special use permit was approved. The Zoning Board, upon review of the Zoning Administrator’s action, concluded a special use permit was required. The Corbets challenged this decision by filing suit in district court pursuant to K.S.A. 19-2926. The district court reversed the Zoning Board’s decision and it is from that decision defendants appeal.
The issue presented is whether the Corbets’ proposed use of their land as a wildlife hunting preserve is an “agricultural purpose” which would exempt them from county zoning regulations.
The parties have stipulated that fishing; hunting of upland birds, migratory birds, and waterfowl; dog training; and clay target shooting are activities which could lawfully be conducted on the subject property by the landowners and their guests, without the payment of a fee. The parties also stipulated that the Zoning Administrator determined said activities are in violation of the Shawnee County zoning regulations only if a fee is charged.
The Corbets propose to use their land to provide hunting, fishing, clay target shooting, and dog training to the public on a fee basis. Hunting and fishing would be restricted to comply with the Kansas Fish and Game Commission rules and regulations. Kenneth testified that he had spent a good deal of time and money developing the acreage as a wildlife habitat, including the provision of food, water, and ground cover beyond that which naturally occurs. He has planted crops such as milo and soybeans for the specific purpose of providing sources of food for wildlife. The subject property contains a mixture of trees and brush, and cultivated crops. The acreage also contains Kenneth’s residence and one or more ponds.
Kenneth stated the primary uses of the hunting preserve would be hunting and fishing, but ancillary uses would include providing hunters with dogs if requested, clay target practice, and providing coffee or snacks to the hunters. The ancillary services were described only as an accommodation to the hunting and fishing activity. The Planning Commission and the Zoning Administrator made repeated reference to the operation of a snack bar on the premises. The Corbets stated in response that there is no snack bar or shop operated on the premises. Those who hunt and fish on the preserve are offered coffee from a thermos and occasionally a cupcake or snack, but these items are not sold.
K.S.A. 19-2901 et seq. authorizes the rezoning of county property. The present issue centers around the interpretation of K.S.A. 19-2921, which states in part:
“[N]o determination nor rule nor regulation shall be held to apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise.”
Pursuant to these statutes, Shawnee County adopted zoning regulations for the “RA-1” agricultural district. Section 6 provides that the premises shall be used only for the following purposes:
“1. Agricultural uses including the raising of crops, livestock, poultry or animals for the production of food or any activity connected therewith normally found to be necessary and essential to this purpose.
“2. Any activity deemed essential to the utilization and conservation of natural resources.”
The Corbets argue that 19-2921 and the RA-1 agricultural district regulations exempt them from the county zoning requirements and, therefore, a special use permit is not required. The district court agreed.
No Kansas case has specifically defined what an “agricultural purpose” is under 19-2921. Several cases have considered whether certain activities fall within that term. See Fields v. Anderson Cattle Co., 193 Kan. 558, 563-64, 396 P.2d 276 (1964) (agricultural purpose includes operation of livestock feed lots); Carp v. Board of County Commissioners, 190 Kan. 177, 373 P.2d 153 (1962) (agricultural purpose includes a hog feeding operation); Board of County Commissioners v. Brown, 183 Kan. 19, 325 P.2d 382 (1958) (raising canaries for sale is consistent with an agricultural purpose, but operation of an automobile garage and body repair shop is not).
In a more recent case, Blauvelt v. Board of Leavenworth County Comm’rs, 227 Kan. 110, 605 P.2d 132 (1980), the issue centered around the construction of a farmhouse which did not meet zoning regulation requirements. The court found:
“The obvious purpose of the proviso in K.S.A. 19-2921 was to favor agricultural uses and farmers. Since this state’s economy is based largely on the family farm it would appear the intent of the legislature was to spare the farmer from more governmental regulation and not to discourage the development of this state’s farm industry.” 227 Kan. at 113.
There is no Kansas case law specifically addressing the issue of whether a hunting preserve is an agricultural use. The Court of Civil Appeals of Texas has found that a farm which is also leased for deer hunting constitutes an “agricultural use” of land for tax purposes. Klitgaard v. Gaines, 479 S.W.2d 765 (Tex. Civ. App. 1972). The statute at issue defined “agricultural use” as ‘‘the raising of livestock or growing of crops, fruit, flowers, and other products of the soil under natural conditions as a business venture for profit, which business is the primary occupation and source of income of the owner.” 479 S.W.2d at 766-67. In Klitgaard, the court concluded that “deer leases and grass leases involve the utilization of the resources of the land for profit, and that both constitute ‘agricultural uses’ of the land.” 479 S.W.2d at 769-70. Other cases have held that, in the final analysis, the nature of the use made and not the identity of the user of the land determines whether the activity may be permitted. See Tuftee v. County of Kane, 76 Ill. App. 3d 128, 394 N.E.2d 896 (1979) (boarding and training show horses constitute an agricultural use of the land); Barnhart v. Z.H.B. of Nottingham Twp., 49 Pa. Commw. 481, 411 A.2d 1266 (1980) (boarding horses is an agricultural use). In the present case, the Corbets are cultivating the land to provide food for wildlife. The nature of this activity relates to agriculture as it involves utilization óf the re sources of the land for production of plants and animals useful to man. 3 C.J.S., Agriculture § 2.
It is a well-established principle that zoning ordinances must be liberally construed in favor of the property owner. Koppel v. City of Fairway, 189 Kan. 710, 713, 371 P.2d 113 (1962). “Zoning ordinances, being in derogation of the right of private property, should be liberally construed in the property owner s favor, and where exceptions appear they are liberally construed in favor of the property owner.” Koppel, 189 Kan. at 713.
Considering the legislative policy of favoring agricultural uses and promoting the development of the farm industry, together with the liberal construction given zoning ordinances in favor of property owners, the operation of a wildlife hunting preserve, under the facts of this case, is an “agricultural purpose” as contemplated by 19-2921 and is exempt from county zoning regulations.
Defendants contend the district court erred in failing to give sufficient weight to the ruling of the Zoning Board.
Any action of the Zoning Board is subject to judicial review pursuant to K.S.A. 77-621. The scope of judicial review under the statute relevant to this issue is limited to whether the board erroneously interpreted or applied the law. Courts give great weight under the doctrine of operative construction to statutory interpretation of a statute by the administrative body charged with enforcing the statute. National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989). Although the administrative interpretation of a statute should be given consideration and weight where the statute is ambiguous, the final construction of a statute rests with the courts. Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, 647-48, 518 P.2d 453 (1974). The issue on appeal is whether a wildlife hunting preserve is an “agricultural purpose” within 19-2921 and the zoning regulations adopted pursuant to 19-2901 et seq. The question raised is one of law and not of fact. Therefore, it is the function of both the district court and this court to interpret the statute.
In its decision, the district court held the hunting preserve is an agricultural use of the land. The court stated the proposed use fits within the policy underlying 19-2921, that is, to allow the Corbets to use their land profitably without governmental hindrance. As stated in Blauvelt, 227 Kan. at 113, the obvious purpose of the statute is to favor agricultural uses and farmers and not to “discourage the development of this state’s farm industry.” The district court also held in the present case: “This is in the tradition of the liberalized use of real estate and the narrow interpretation of any restrictions placed thereon.” See Koppel, 189 Kan. 710. We agree with the district court’s conclusion.
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Larson, J.:
Clarence McCarty, the named beneficiary of an individual retirement account held by his deceased brother, Ralph McCarty, appeals from the entry of summary judgment in favor of Ralph’s wife, Mary McCarty, in an action to recover the proceeds of the account.
In 1982, Ralph created an IRA pursuant to 26 U.S.C. § 408 (1988), with the Fredonia State Bank. At the time of Ralph’s death in 1987, his brother Clarence was the designated beneficiary of approximately $25,000 accumulated in the IRA.
When Ralph died, his probate estate consisted of $5,000 in real property and $5,000 in personal property. Ralph’s will left all of his property to his parents and provided that if they did not survive him, all of his property was to be left to his brothers, Clarence and Robert McCarty.
Ralph married Mary McCarty on April 24, 1976. Mary survived Ralph and did not consent to either the IRA beneficiary designation or Ralph’s will. Mary, as the surviving spouse of Ralph, and Timothy R. Emert, as administrator c.t.a. of Ralph’s estate bring this action to have the IRA beneficiary designation declared invalid and to have the assets of the IRA become a part of Ralph’s estate.
The trial court entered summary judgment in Mary’s favor by adopting the logic arid reasoning of Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840, reh. denied 192 Kan. 471, 389 P.2d 1 (1964), that Ralph is precluded from transferring away Mary’s spousal share without her'consent pursuant to K.S.A. 33-101 and K.S.A. 59-602(2).
Clarence appeals. We affirm.
Summary judgment is proper where there is no issue of material fact and the movant is entitled to judgment as a matter of law. Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 756, 740 P.2d 1083 (1987).
The facts in this case are not in dispute. The only issues are questions of law, of which this court has unlimited review. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Is Ralph’s IRA account subject to and governed by the provisions of K.S.A. 1989 Supp. 9-1215?
Clarence contends the IRA is either a payable on death (POD) account or a Totten trust created in compliance with K.S.A. 1989 Supp. 9-1215, entitling him, as the named beneficiary, to all the proceeds of the account.
•K.S.A. 1989 Supp. 9-1215 provides in pertinent part:
“An individual adult or minor,. hereafter referred to as the owner, may enter into, a written contract with any bank located in this state providing that the balance of the owner’s deposit account, or the balance of the owner’s legal share of a deposit account, at the time of death of the owner shall be made payable on the death of the owner to one or more persons . . '. referred to" as the benéficiary or beneficiaries. . . .
“Transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.
“Every contract authorized by this section shall be considered to contain a right on the part of the owner during the owner’s lifetime both to withdraw funds on deposit in the account in the manner provided in ’the contract, in whole or in part, as though no beneficiary has been named, and to change the designation of beneficiary. The interest of the beneficiary shall be considered not to vest until the death of the owner.
“No change in. the designation of the beneficiary shall be valid unless executed in the form and manner prescribed by the bank and delivered to the bank prior to death of the owner.
“As used in this section, “person” means any individual, individual or corporate fiduciary or nonprofit or charitable organization as defined by K.S.A. 79-4701 and amendments thereto.”
The present wording of 9-1215 is the result of legislative changes which followed the Kansas Supreme Court’s ruling in Truax v. Southwestern College, 214 Kan. 873, 522 P.2d 412 (1974), that savings accounts payable to charities upon the death of a depositor were testamentary in character and invalid because they were not executed in compliance with the statute of wills.
The history of this statutory change is well documented in In re Estate of Morton, 241 Kan. 698, 769 P.2d 619 (1987), which held that K.S.A. 1986 Supp. 9-1215 (banks), K.S.A. 1986 Supp. 17-5828 (savings and loan associations), and K.S.A. 1986 Supp. 17-2263 (credit unions), which authorize the transfer of property through POD accounts without compliance with the statute of wills, also authorize the disposition of financial institution Totten trusts accounts. In Morton, Justice Herd opined that the language of K.S.A. 1986 Supp. 9-1215 “is broad enough to show the legislature intended to remove those types of accounts [savings account trusts and POD accounts] from the statute of wills.” 241 Kan. at 705-06.
Clarence contends that his brother’s IRA simply becomes one of “those types of accounts” whose disposition is governed by 9-1215. Our decision is not so easily reached for we must first consider whether a federally inspired IRA’s disposition is mandated by 9-1215 and then, more importantly, whether the rights of a nonconsenting spouse who is effectively disinherited by the beneficiary designation void Ralph’s creation of a revocable inter vivos trust with Clarence as the beneficiary.
Mary contends that Ralph’s IRA is not a Totten trust but a revocable inter vivos trust that may be challenged pursuant to K.S.A. 33-101 and K.S.A. 59-602(2) as interpreted and applied by Ackers which was followed in Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988).
An IRA is a trust (or custodial account) created for the exclusive benefit of an individual or his or her beneficiaries. 26 U.S.C. § 408(a), 60A Am. Jur. 2d, Pensions and Retirement Funds § 42 (1988). Congress created this program for the sole purpose of permitting eligible individuals to accumulate funds for their own retirement instead of relying completely upon employer- or government-sponsored retirement programs. 9 Federal Tax Guide Reports, Planning for Your Retirement: IRA’s & KEOGH’s ¶ 2 (1983).
In order to obtain deductibility for federal income tax purposes of contributions to an IRA, the trust must meet the requirements of 26 U.S.C. § 408(a). Because the State Bank of Fredonia, Kansas, where the IRA was located, did not have trust powers, the involved account was established under the authority of K.S.A. 9-1601, which provides:
“[I]f the governing instrument limits investment of funds to deposit in time or savings deposits in the bank, any bank may act as trustee or custodian of individual retirement accounts established pursuant to section 408 of the federal internal revenue code of 1954, and amendments thereto, or trusts established pursuant to section 401 of the federal internal revenue code of 1954, and amendments thereto, without being issued a special permit to act in such capacity.”
Investments under the account were limited to eighteen-month variable accounts or eighteen-month fixed accounts by the individual retirement custodial account agreement between Ralph and the Bank, which appears to be authorized under 26 U.S.C. § 408(h) by the following wording:
“(h) Custodial accounts. — For purposes of this section, a custodial account shall be treated as a trust if the assets of such account are held by a bank (as defined in subsection (n)) or another person who demonstrates, to the satisfaction of the Secretary, that the manner in which he will administer the account will be consistent with the requirements of this section, and if the custodial account would, except for the fact that it is not a trust, constitute an individual retirement account described in subsection (a). For purposes of this title, in the case of a custodial account treated as a trust by reason of the preceding sentence, the custodian of such account shall be treated as the trustee thereof.”
Article IX of the IRA agreement between Ralph and the Bank governs the interpretation and administration of the account by providing:
“This agreement shall be interpreted and administered in a manner that the account established herein will meet the requirements of Section 408(a) of the Code for an individual retirement account (custodial). Except to the extent superseded and controlled by such interpretation of federal law, this agreement will be construed according to the laws of the State of Kansas.”
The trial court concluded, and all the parties appear to agree, that the IRA herein involved, even though its investments are more limited than is required by the federal law, is a trust. This is supported by the agreement and case law defining a trust. Shumway v. Shumway, 141 Kan. 835, 842, 44 P.2d 247 (1935), described the three essential requirements in creating a trust as (1) an explicit declaration and intention to create a trust; (2) definite property or subject matter of the trust; and (3) the subsequent holding and handling of the subject matter by the trustee as a trust. Each of these elements is present here. Following the federal law that the “custodian of such an account shall be treated as the trustee,” it is clear the IRA must be treated as a trust.
Ralph had the specific right to withdraw all of the funds in the custodial account. ARTICLE IV Distributions states: “1. The Depositor shall have the right to receive any part of, or the balance in, the custodial account at any time upon written notice to the Custodian.”
Complete right of withdrawal is equivalent to having unrestricted control over the funds, making the trust revocable by Ralph at all times during his lifetime. It is thus clear that the IRA herein involved must be considered and construed as a revocable inter vivos trust under the laws of Kansas.
The issue then becomes whether the IRA (revocable inter vivos trust) is sufficiently similar to a POD account and a Totten trust to be governed by the provisions of 9-1215. While we affirm the trial court, we do not agree with its conclusion that the IRA in question falls within the definition of “those types of accounts” as defined in 9-1215. “The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason. [Citation omitted.]” Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989).
A POD account is a contract whereby funds are deposited in a financial institution for the benefit of another and are payable upon the death of the depositor to the named beneficiary. The depositor retains direct control over the account. Because the POD account is based on a contract, the beneficiary’s claim to the proceeds of the account is founded on a third-party beneficiary theory. 241 Kan. 698, Syl. ¶¶ 7, 8.
A Totten trust is created by depositing funds in a financial institution as “trustee” for certain named beneficiaries. The depositor can withdraw the funds or revoke the trust, and the beneficiaries’ rights to the trust funds arise only upon the depositor’s death. 241 Kan. at 701. The disposition of the funds upon the depositor’s (trustee’s) death from a Totten trust is identical to that of a POD account although a. Totten trust is based on trust principles rather than contract rights. 241 Kan. 698, Syl. ¶ 8.
The IRA differs from both the POD account and Totten trust because it is a creature of federal law. 26 U.S.C. § 408. It is subject to special rules that limit a depositor’s control, including amount of deposits, limited investment decisions, and taxation penalties for prohibited withdrawals. An IRA in Kansas is entitled to special protection. For example, pursuant to K.S.A. 1989 Supp. 60-2308(b), an IRA is protected from attachment by creditors, although under K.S.A. 1989 Supp. 60-2308(c), it is subject to the claims of an alternate payee under a qualified domestic relations order. An IRA may be garnished by a former spouse seeking maintenance and child support awarded in a divorce decree. In re Marriage of Schoneman, 13 Kan. App. 2d 536, 775 P.2d 194, rev. denied 245 Kan. 784 (1989).
An IRA is a structured revocable trust subject to provisions of federal law. Although the Bank herein involved was required, in the absence of trust powers, tp limit the investments to its own accounts, many IRA’s are invested in securities or managed by investment companies and other non-bank entities.
K.S.A. 9-1215 was enacted by the 1979 legislative session as Senate Bill No. 395. L. 1979, ch. 177, § 1. A review of the House and Senate Journals as well as the minutes of the House and Senate Committee which favorably reported the bill shows the legislation was requested by the Kansas Bankers Association to authorize POD deposits for the convenience and estate planning assistance of bank customers. “The Senate Committee thought it such a good idea, that even in the absence of such request, they made the same kind of POD instrument available to savings and loan associations and credit unions.” Minutes of House Committee on Commercial and Financial Institutions, March 20, 1979. There is no legislative history which shows the bill was intended to apply to or govern the disposition of IRA’s.
Truax is not specifically mentioned in the legislative history of Senate Bill No. 395 but it is clear, as Justice Herd stated in Morton, 241 Kan. at 705, that the legislation changed the result in future instances with respect to POD accounts. Until and unless the legislature specifically does so, we will not expand 9-1215 to include an IRA in the form of a revocable inter vivos trust established primarily under the auspices of and with the support of federal law.
We specifically hold that K.S.A. 1989'Supp. 9-1215 does not apply to or govern the disposition. of Ralph’s IRA. The opinion in Morton must be confined to its own facts. We distinguish Morton on its facts and hold it is not authority for the result Clarence requests. We also note that the rights of a nonconsenting spouse were not involved in Morton.
If the legislature chooses to mandate that the' rights of surviving spouses should be ignored in the disposition of a substantial portion of many decedent’s estates (IRA’S, retirement benefits under Keogh plans, I.R.C. § 401[k] plans, or other forms of pension and profit sharing pláns) it may do so, but this should only take place after long and deliberate discussions and the realization that the rights of many spouses will be adversely affected.
Is the IRA subject to the rights of a rionconse'ntihg spouse who was not its beneficiary?
We have previously decided herein that Ralph’s IRA must be considered and treated as a revocable inter vivos trust.
By characterizing the IRA in this inanner, we establish the basis for Mary’s contention that it is subject to attack by a spouse pursuant to K.S.A. 33-101 and 59-602(2).
K.S.A. 33-101 states:
“All gifts and conveyances of goods arid chattels, made in trust to the rise of the person or-persons making the same shall, to the full extent‘of both the corpus and income made in trust to such use, bé void arid of no effect, regardless of motive, as to all past, present or future creditors: but otherwise shall be valid and effective.”
K.S.A. 59-602(2) prevents a.person from,willing away from his spouse more than half .of his property without the spouse’s consent:
“Either spouse may will away from the other half of his or her property, subject to the rights of homestead and allowances secured by statute. Neither spouse shall will away from the other more than half of his or her property, subject to such rights and allowances, unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses, or shall elect to take under the testator’s will as provided by law.” '
Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840 (1963), held that the transfer of property to a trustee under an agreement whereby the settlor reserved income for life with the power to revoke is valid under G.S. 1949, 33-101 and 67-414 (now K.S.A. 58-2414), subject only to the rights of creditors and the statutory rights of a surviving spouse. The central issue in Ackers was whether one spouse may place all of his property into a revocable inter vivos trust, appoint a trustee, name a beneficiary other than his spouse, and thereby prevent his nonresident spouse from taking an interest in his estate.
The Ackers court had a clear public policy problem — is the decedent’s right to alienate his personal property more important than protecting the statutory rights of his surviving spouse? K.S.A. 33-101 read then as it does today. The court said in Ackers, “[I]f the settlor retained the control over the corpus of the trust ... it was void as to creditors . . . but otherwise it was valid.” 192 Kan. at 325. In allowing the spouse to attack the trust, Ackers expanded the class of people who may challenge a beneficiary designation of a revocable inter vivos trust to include a spouse asserting spousal rights under G.S. 1949, 59-504, 59-505, or 59-602. The Ackers court held:
“We conclude that the husband of a nonresident wife may, by absolute sale, gift or other transfer made in good faith during his lifetime, deprive the wife of her distributive share. However, if the transfer is colorable only and the husband retains the power of revocation, it is fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.
“The trust instrument in question reserved to the donor the power of revocation. The donor did not part with dominion over the trust res and the widow is not barred from claiming her distributive share of the corpus of the trust under the law of intestate succession. [Citation omitted. ]” 192 Kan. at 333.
The Supreme Court ordered the district court to enter judgment directing the trustee to deliver one-half of the corpus to the administrator of the Frank C. Ackers estate.
Because the ultimate beneficiary of the trust after life estates in the donor’s daughter and granddaughter was the Kansas University Endowment Association, the contention was made in Ackers that Kansas should be committed to the policy of upholding charitable gifts wherever possible. However, the rule that one spouse should not be permitted to defeat the statutory rights of the other by a colorable or illusory conveyance was deemed to be more important, and the court stated: “Public welfare is not enhanced by a husband conveying all of his property to charity, by a colorable instrument, and thus leaving his widow to seek alms.” 192 Kan. at 334.
Ackers was followed 25 years later in Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988). Albert Newman placed all of his assets in a revocable inter vivos trust, designating Jim George as trustee. Albert retained the right to amend, invade the assets, or terminate the trust. The trustee had the power to invade the corpus as necessary for the care of Albert or Loretta, his wife, and was directed to pay them all income during their lives. The ultimate beneficiaries of the trust were Albert’s sister, Alice Williams, and Loretta’s sister, Rosie Brady, who had cared for Albert and Loretta for years. Loretta was incapacitated and did not consent to the trust.
Albert and Loretta had no children but Loretta had a son from a previous marriage. This son obtained a guardian and conservator for Loretta, who filed suit claiming that under Ackers Loretta was entitled to the entire estate. The trial court, the Court of Appeals, and the Supreme Court agreed.
The issue in Neuman was whether, the rule of election is governed by K.S.A. 59-602(2) and K.S.A. 59-603, which would entitle Loretta to one-half of the estate, or whether the rules of intestate succession in K.S.A. 59-504 apply, which would entitle Loretta to the entire estate.
The Neuman court applied Ackers and concluded that when Albert died intestate, Loretta took the entire estate by intestate succession because Albert left no issue and died without a will. 243 Kan. at 188. K.S.A. 59-602(2) and 59-603 did not apply because Albert, like Frank Ackers, died intestate, and those statutes applied only to testate estates. The court acknowledged that its ruling was not consistent with Albert’s intention but opined that the rule of Ackers was so well-established that to make an exception would compromise the spousal protection it established. 243 Kan. at 189.
The court rejected an argument by the trust beneficiaries that the trial court was required to make a finding of fraudulent intent on the part of Albert. Albert had provided for his wife in his trust, but because she could not legally consent to its provisions, the court felt bound by the rule set forth in Ackers that “if one spouse transfers property without consent of the other spouse and retains the power of revocation, the transfer is ‘fallacious, illusive and deceiving, and will be considered as fraud.’ 192 Kan. at 333.” 243 Kan. at 188-89.
The fact the spouse in Ackers was a nonresident and Loretta Newman is a resident makes no difference.
The decisions of Ackers and Newman clearly apply to the revocable inter vivos trust (IRA) created by Ralph. Ralph’s actions are “fallacious, illusive and deceiving, and will be considered as fraud,” Ackers, 192 Kan. at 333, and fall squarely within the rule announced in Ackers as applied in Newman.
We hold, as did Newman, that the Ralph McCarty IRA is void and invalid. Because Ralph died testate, K.S.A. 59-602(2) and 59-603 apply.
Since the bank paid the balance in the IRA to Clarence prior to the filing of this lawsuit, the trial court’s order that “the decedent’s assets previously held by the State Bank of Fredonia and all accumulated interest and increase thereon which have been delivered to Clarence McCarty are hereby ordered delivered by Clarence McCarty to the administrator c.t.a. of the estate of Ralph L. McCarty, to be distributed in accordance with the will and the court’s interpretation and orders thereon” is affirmed. The administrator c.t.a. of the estate of Ralph L. McCarty is entitled to judgment and interest at the statutory rate against Clarence McCarty.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for personal injuries sustained by the plaintiff by being run over by an automobile driven by the defendant Harris. Trial was to the jury; verdict against both defendants for $1,800. The court, on consideration of a motion for a new trial by the grocery company, concluded that Harris was an independent contractor and that the grocery company was not liable. The motion for new trial was granted solely on that ground. The plaintiff appeals.
The plaintiff sought to hold the defendant grocery company responsible for the consequences of the negligence of Harris ón the theory of respondeat superior.
The grocery company’s place of business was at Wichita. It made an oral contract with Harris to canvass a certain prescribed territory covering sixteen or seventeen towns. Under the contract he was to take orders for goods and collect money for goods which had been delivered. He was to be paid a minimum compensation of $175 per month, and if he should produce more than a minimum amount of business his compensation was to be increased in the proportion that his sales should exceed the minimum amount. Out of such compensation Harris was to transport himself and pay all his expenses. He was at liberty to select any manner of transportation and any route and times of visiting the different towns that he chose, the only requirement being that he should call on the trade of the whole territory once each week.
The injury complained of occurred on the first day that he entered upon the execution of this contract. Harris provided himself with an automobile and started out on his territory Monday morning. The company provided him with samples and gave him a list of the merchants in his territory who had purchased goods the preceding week, and from whom, presumably, he was expected to collect. He was asked to try to open an account at Oil Hill, one of the towns on his territory.
He took a passenger with him for hire, who rode with him the entire trip over the territory that week and paid Harris for his transportation. The two had visited Benton, Towanda, Midian and Oil Hill, and were approaching El Dorado when the accident oc curred. The instructions submitted to the jury the question of whether the relation of master and servant existed between the grocery company and Harris, or whether the latter was an independent contractor; that, if the latter was the case, the grocery company would not be liable. The jury found that Harris was not an independent contractor.
The plaintiff contends that there was a dispute in the testimony as to the terms of the contract, and that therefore the question was properly for the jury; that the court committed error in setting aside the verdict and granting a new trial. The defendant contends that there was no conflict in the evidence as to the terms of the contract, and that therefore the legal relation of the parties was purely a question of law for the court. Two witnesses only testified concerning the contract.
Harris testified:
“It was stated that I was to have $175 per month salary and pay my own expenses. I was not to receive commissions on sales.”
On cross-examination:
“I commenced working for $175 per month. There was an understanding that if I increased the business I was to get more.”
Mr. Bevis, manager of the grocery company, testified:
“My arrangement with him was that he was to take it on the basis of $175, which would be merely a drawing account. We give the men $175 providing he produces on that territory. He would not get any more than $175 unless he produced a certain amount of business. . . . The arrangement with Harris was that we would give him $175 per month, and if he increased that business he would get more money on the same basis we paid for [our] other salesmen. . . . We gave him $175 p.er month.”
There was no material discrepancy on this point. Nor does there appear any conflict in the testimony as to the order in which Harris should visit the towns.
Mr. Bevis testified:
“There was no requirement as to the order in which he made the towns, just so he made them and called on the trade. They had a routine way of making the towns. He was expected to make his own routine; in fact, I think he changed a time or two while he was on it.”
Mr. Harris testified:
“There was no requirement in particular as to the order in which I was to visit towns. I was expected each week to visit the territory. ... It was not particular whether I made it one day or the other, but I made it the same as the other men had been making it.”
As to the manner of transportation, Harris testified:
“Q. Was there anything said between you and the company as to how you should travel? A. Nothing in particular. Mr. Bevis suggested that I could make the towns better and have more time with a car and he would like to have me travel that way. He didn’t say I had to. He had stated to me that the towns could be rhade better if the salesman used an automobile. . . . The grocery company did not require me to own a car. I had my choice of going any way I chose. . . . When I started out the first day the company. furnished me with a list of the merchants who had bought goods of the company the week before, and that list included all merchants in my territory who had purchased the week before. There was nothing said about calling upon them, but I was.supposed to call upon all trade in that territory regardless of whether they were on the list or some one else. I was furnished the list for the purposes of interviewing them and trying to sell them goods.”
Mr. Bevis said:
“There was no requirement as to how he should transport himself. I probably did suggest that .the train service be considered, and that if he got results it would probably be more economical and better for him if he got a car. ... I did not require him to have a car, I merely suggested it.”
In 14 R. C. L. 78 it is said:
“If the contract providing for the performance of certain work is in writing and is unambiguous, its construction is generally a question solely for the court. . . .In the case of an oral contract, if there is no material dispute in the testimony, whether the employee is an independent contractor may present a question for the court.”
Serviceable notes on the subject are found in 65 L. R. A. 508, and 17 L. R. A., n. s., 382. The authorities are practically unanimous in holding that where there is no material conflict in the evidence with respect to the terms of a contract, and such terms are not in any respect ambiguous or uncertain, the meaning and effect of the contract, and the relation of the parties to it thereby created, is a question of law to be determined by the court. (Green v. Soule, 145 Cal. 96, 78 Pac. 337.)
In Aldrich v. Tyler Grocery Co., 17 A. L. R. 617 (Ala.), it was said:
“A salesman employed on a commission 'basis, who owns and operates an automobile to assist him in seeking his trade, and whose movements are in no way controlled by his employer, is, with respect to the operation of the car, an independent contractor, so that his employer is not answerable for injuries caused by his negligent operation of the car.”
In the opinion it was said’:
“Shook was the grocery company’s ‘city salesman.’ He alone owned and maintained the automobile causing the injury. He was compensated on a commission basis. He was paid a percentage on orders taken and accepted. He received payment of bills due the grocery company and delivered such payments to it. The grocery company was only concerned in the result of his efforts as salesman. It did not control when, how or where he secured these orders, except he was not to work another salesman’s trade in the territory he [Shook] was entitled to work. The method, means and occasions of his calls upon the trade were left entirely to him, uncontrolled by the grocery company. The facts that he was lame; that the company knew this fact; that the company knew when he first was engaged that he would and did afterwards visit the trade in a car of his own, maintained alone by him; and that on this occasion Page, his associate or successor as city salesman, was in the car when the injury occurred — did not operate, singly or otherwise, to change Shook’s relation from that of an independent contractor to a servant to the grocery company as master in the operation of Shook’s automobile on this occasion.” (p. 620.)
See, also, Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66; Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990; 14 R. C. L. 74; Pooler v. Lumber Co., L. R. A. 1915F 1125 (Me.).
In the instant case there was no material conflict in the evidence with respect to the terms of the contract. Under the facts and circumstances disclosed, Harris was an independent contractor. No error was committed by the court in setting aside the verdict and granting the grocery company a new trial.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the plaintiff to recover compensation for an injury sustained while she was in the employ of the defendant. It resulted in an award of $2,529, and from the judgment rendered defendant appeals.
Complaint is made of the refusal of the court to grant a continuance on account of the absence of a medical witness. The affidavit supporting the motion set forth the testimony that the witness would give if he were present. Plaintiff consented that the affidavit should be read as the deposition of the witness. The court following the provisions of section 315 of the civil code denied the application and the affidavit was treated and used as the deposition of the absent witness. There was no error in the ruling.
Error is assigned on rulings, first, in refusing to set aside the special findings returned by the jury and also in the denial of defendant’s motion for judgment on the special findings. The plaintiff- claimed compensation for an injury resulting from her hand being drawn into a cog machine in defendant’s plant which cut off the first joint of her index finger and crushed the end of her second finger, severing the nerve and destroying the tissue resulting in a neuroma. She averred that the injury causes shooting pains in the wrist and arm which reach the shoulder, that she is unable to grip articles with that hand and her ability to perform ordinary manual labor is greatly lessened, and further that the injury has caused a partial permanent disability. The special findings are that plaintiff was partially and permanently incapacitated for labor by the injury, that it had existed since March 17, 1920, that for a short period she had been able to earn $13.50 per week, that she had been permanently incapacitated for work in other ways than by the loss of the index finger. That her average weekly wages for a period of five years immediately prior to her injury had been $15.70 per week, and that the amount she has been able to earn since her injury was $11.95 per week. It is contended that the evidence did not warrant the findings as to the injury to the second finger and hand other than the loss of the index finger, but a reading of the record satisfies us that the evidence is abundant to sustain the finding, both as to the effect and duration of the injury.
It is said that there is an inconsistencj'' in the findings in that one answer stated that she had received $13.50 per week for a period that she had worked, and the other saying that she was able to earn $11.95 per week after receiving the injury. It appears that she returned to work for defendant after a partial recovery from the injury but was unable to continue and for that short period she had been paid at the rate of $13.50 per week. Whatever amount she received in the attempt to come back, the jury made a specific finding as to her earning capacity in the future. The. explanation shows that there is no real inconsistency and that the claimed conflict furnishes no ground for setting aside the findings or for the reversal of the judgment.
Some special questions requested by the defendant were not submitted to the jury. Those which were pertinent and proper upon disputed facts, however, were sufficiently covered by the questions which the court did submit and there is no cause for complaint on this score.
There is a contention that the compensation awarded was excessive principally upon what is called the disparity between the award authorized by the statutory schedule for the loss of a finger or other specific injury, and the amount awarded for the unscheduled injury to the second finger and hand. The injury-to the hand and arm other than the loss of the index finger comes fairly within the rule of Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861, and Emry v. Cripes, 110 Kan. 693, 205 Pac. 598. We are asked to reconsider and reconstrue the provisions of the compensation act which provide a schedule for specific injuries and those not covered by the schedule which enacts a rule for measuring the compensation a workman shall receive for permanent partial disability and an extended and interesting argument has been made in opposition to the view already taken by the court. These provisions were carefully considered and construed in the Stefan case decided in February, 1920, and were again considered and the former holding approved in the Emry case. There have been two sessions of the legislature sjnce the provisions of the statute in question were interpreted but no change has been made in them evidencing that the construction placed upon the statute was not out of line with the legislative purpose. We see no occasion to renew the discussion or to add anything to the reasons that have been given and the view taken.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action for damages sustained by falling on the wet and slippery floor of the killing room in defendant’s packing house in Hutchinson.
Plaintiff conducted a retail grocery and meat market at Medora, a few miles from Hutchinson. He was accustomed to go to defendants’ plant two or three times a week for his meat supply. The entrance to the meat room for customers like plaintiff who came to select, meat for their retail trade was along the south side of the killing room, but that portion of the room was not railed off from the rest of it. There were two or three pillars in the killing room some seven or eight feet distant from the south wall, and the space between these pillars and the south wall of the room constituted a sort of passageway, but there was also testimony that customers sometimes walked straight through the killing room without regard to the passageway. About fifteen feet north of this passageway was a table where men were cleaning hogs. On the day plaintiff was injured he turned aside from the passageway to speak to some men working at the table, and when he started to continue his journey he fell and was severely injured. He testified:
“Q. What kind of an approach was there to the west side of the meat market? A. No other way than through the slaughter room. . . .
“Q. In passing through that slaughter room, did you pass across the center of the room? A. Right across, you might say, the center, yes, sir.
“Q. . . . How big was that slaughter room? A. Well, it was possibly twenty-five feet wide across the building. I should judge that. . . .
“Q. What was the width of the slaughter room, north and south? A. North and south where they butchered their hogs, it was about twenty feet. . . .
“Q. When the hogs were washed and cleaned, which way did the water flow on the floor? A. It was practically all over the floor. . . .
“Q. Tell the jury exactly the route you traveled? A. We came in off of the street on the south side,— . . .
“A. I did that; and turned to the left there to go right through this slaughter room across to this meat market. . . .
“A. ... On my right was Mr. Goble and a colored man by the name of Snowden. They were dressing a hog, and as I went through there Mr. Goble spoke to me, accosted me and I hesitated just a moment. He spoke to me about my boy playing ball and wanted to know whether they could get him to pitch ball for them. I told him he would have to see him, I didn’t know as to that, and I advanced on then. Those boys were facing the east, Snowden and Goble was, and I passed by them and possibly went ten feet to the central part of thé building and there I slipped and fell to the floor. . . .
“Q. Going back just before you fell, what was.the condition the floor was in? A. It was in a very bad condition. .• . .
“A. Well, it was covered more or less with blood and different fragments of meat and a considerable amount of water, because this man was flooding this string of hogs with a stream of water as big as my thumb, I should judge, and this water was running all oyer the floor. . . .
“Q. You may state whether or not that was the usual and customary route taken by yourself? A. Yes, sir; it was. . . .
“Q. You may state whether or not it was the usual and customary route used by other customers? A. It was.”
On cross-examination, plaintiff testified:
“Q. You started to walk straight across from the east door of the killing room to the west side, along the north wall of the cooling room? [south wall of killing room.] A. Yes, sir. . . .
“Q. How far from the wall did you come along, as you walked west, how far from the wall were you? A. When I was walking in from the east going west, to pass this string of hogs I was out just barely enough to pass this man that was flooding the hogs, and as I got past him Mr. Goble spoke to me and I j ogged over a little to the right where he was butchering this hog, just a step, and I-proceeded on after speaking to him just a minute; I proceeded on west about ten feet from them and there is where I fell, about middle way of the building, I should judge. . . .
“Q. You say Mr. Goble and a colored boy were cleaning a hog? A. Yes, sir. . . .
“Q. Were they approximately in the middle of the killing room? A. You might say right around near the middle of the killing room. . . .
“Q. Did you go over to the table where they were working and talk to him? A. Just stepped aside, in front of this young man, like, as he was talking to me about my boy playing ball.
“Q. Then you went straight west? A. I went west. . . .
“The Court: I want to get this straight. As I understand you, you came in from the south and went up to the middle of the place where they were dressing this hog because the young man spoke to you, about your son, and then turned and went direct west?
“A. No, sir; I was going west when he spoke to me. Of course I continued on west then. He was just to my right ... I jogged over where this young man was that spoke to me, and then started across to the door of the meat market.”.
There was testimony for defendant tending to show that the eight-foot space between the south wall and the row of pillars was the regular passageway and that it was always kept clean; and testimony, also, that plaintiff fell in jumping across a pail of water, and that he had repeatedly told witnesses that the accident was caused by his own fault.
A witness for defendant testified:
“Q. Now, Mr. Winchester-, is there a walk or passageway leading from the hall to the sausage room? A. Yes, sir. . . .
“Q. Is that along out by the wall? A. Yes, sir.
“Q. How large a passageway is that? A. Probably seven to ten feet.
“Q. Is that seven to ten feet used in the killing or cleaning of hogs? A. No, sir. . . .
“By the Court: It strikes me you are taking up a lot of time with this. There is no claim in the testimony that this passageway wasn’t in perfect condition.
“Counsel for plaintiff: What passageway?
“By the Court: The regular passageway.
“Counsel for plaintiff: There is a claim of that kind; yes, sir.
“By the Court: I haven’t seen any or heard any testimony of that kind.
“Counsel for defendant: We have assumed it was our duty to show that it was in good condition.
“Counsel for plaintiff: We except to the remarks of the Court on that proposition, because that is a question for the jury.
“By the Court: I am going to instruct right along that line. I don’t want to take up any more time than we have to with it. Exception allowed.
“Cross Examination. . . . '
“Q. People that come there to buy, customers, pass through that way all the time? A. Yes, sir.
“Q. And that was the usual route traveled? A. Yes, sir.”
Another witness testified:
“Q. Is there a passageway along that wall, that South wall? A. Yes, sir.
“Q. For people to go? A. Yes, sir.
“Q. Is that the passageway usually used by people going through that room? A. Yes, sir. ...
“Q. Could you see from where you were working at the table day after day during the time you worked there, where people walked when they came from the hall to the sausage room? A. Yes, sir. . . .
“Q. And where did they usually walk? A. Well, sir, probably four feet from the south wall.
“Q. Straight across? A. Yes, sir.”
The court instructed the jury, in part, thus:
“If you find that the plaintiff was injured at some place other than the usual and accepted, traveled passageway across or through the butchering room to the door of the room where the meat products were stored, and that he was not induced by invitation or allurement of the owner, expressed or implied, to the position and place where he was injured, then he was a mere licensee, and the defendant assumed no duty to the plaintiff other than to see that no wanton or wilful injury was inflicted on him, and in this case there is no evidence that the plaintiff was wantonly or willfully injured and therefore if you find the plaintiff was injured on defendant’s premises at a place or point other than the usual and ordinary passage way used by persons going to and coming from the meat room intended to be reached by the plaintiff through the butchering room, then your verdict will be for the defendant.
“The jury are instructed that if there were two routes or ways to reach the meat products room to which plaintiff claims he was going, it was his duty to take the safe route, and if you find that the route which he took was dangerous, and further find that plaintiff knew of its danger, or by the exercise of ordinary and reasonable care should have known of. such danger, and that such danger did not exist by the other route, which fact was also known to him, or by the exercise of ordinary and reasonable care should have been known to him, then your verdict will be for the defendant.”
The general verdict was in favor of the defendant, but certain special findings were made by the jury which form the basis of this appeal. These must be set out in detail:
“No. 1. Q. Were all customers of the defendant who desired to inspect meat before purchasing required to pass through the said cleaning room in order to get into the cooling room where meats were displayed? A. Yes.
“No. 2. Q. Did the defendant use ordinary care in providing a safe passageway for customers through said cleaning and dressing room into said cooling room? A. No.
“No. 3. Q. Was the floor of said cleaning and dressing room wet and slippery at the time plaintiff was crossing over same to enter into the cooling room for the purpose of inspecting meats for purchase? A. Yes.
“No. 4. Q. Did the defendants give any warning or other notice of any kind to the plaintiff that said floor was slippery and dangerous for use in passing to said cooling room? A. No.
“No. 5. Q. Was the plaintiff exercising ordinary care in passing over said floor into the entrance into said cooling room at the time he slipped and fell and sustained the injury? A. Yes. . . .
“No. 7. Q. Did the defendants know that the passageway used by customer’s in going to the sausage room through, the killing and cleaning room was slippery? A. Yes.
“No. 8. Q. Could the defendants have provided a safe entrance and passage way into the sausage room for their customers? A. Yes.”
Plaintiff's motion for judgment on the special findings was overruled ; likewise their motion for a new trial. He now contends that the special findings were inconsistent-with the general verdict. At first blush they may seem so, but it is clear that the general verdict was induced by the pertinent instructions of the trial court quoted above, to which plaintiff made no objection in the trial court and makes none here. While there was a dispute at the trial as to whether that seven or eight feet of space in the killing room next to the south wall of that roorcqwas a passageway or whether the whole slaughter-room floor was the passageway, the seventh finding seems to indicate that the jury held to the view that the space between the wall and the pillars was the passageway, and while that finding and the others indicate that the jury believed the passageway was slippery and dangerous, yet plaintiff was not injured on the passageway. He fell near the middle of the room, to which point he had turned aside for private conversation with defendants’ employees, so any negligence of defendants in the care of the passageway was immaterial. He was not injured there, nor anywhere that he had a right to be except as a mere licensee whose rights and the defendants’ obligations toward whom were correctly defined by the trial court.
The general verdict was consistent with the evidence, especially that part of it adduced by the prevailing party touching the existence and common use of the passageway, and not necessarily inconsistent with the special findings when these are viewed in the light of all the evidence and the instructions. Consequently the judgment cannot be disturbed.
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The opinion of the court was delivered by
Hopkins, J.:
This is an original proceeding in quo warranto which calls for a construction of the provisions of chapter 200, Laws of 1923, providing compensation for veterans of the world war.
The title of the act is: “An a.ct relating to compensation for veterans of the world war.”
Section 1 reads as follows:
“The state of Kansas acknowledges its indebtedness to, and promises to pay to each person, who was a resident of the state of Kansas at the time of his entering the service, and who served in the world war in any branch of the army, navy, or marine corps of the United States prior to November 11, 1918, and who was honorably discharged therefrom, the sum of one dollar per day for each day of his or her entire service, which compensation shall be in addition to all pay and allowances made by the United States government.”
Section 2 provides that the governor, secretary of state and state auditor are authorized and directed to issue bonds of the state of Kansas in a sum not exceeding $25,000,000, to provide funds for the purpose set out in section 1.
Section 3 provides a tax levy to pay the interest on the bonds and the principal thereof, as they become due and makes appropriation of the funds so raised for that purpose.
Section 4 is as follows:
“There is hereby created a board consisting of the state officers named in section 2 hereof, and the adjutant general of the state, who are hereby charged with the administration of this law, and who shall, within thirty days after the taking effect of this act, make, establish and publish rules and regulations providing for the proof of claims under this act, and for the method of payment of the same; and they are hereby authorized in the general administration of this law, to establish other rules and regulations.”
Five general questions are presented:
1. Are regular soldiers, sailors and marines who were members of a branch of the regular army, navy and marine corps prior to the declaration of the world war, April 6, 1917, entitled to participation in the compensation provided by section 1 of the act?
2. Are members of officers’ training camps, conducted after the declaration of war, entitled to compensation under the acts for the time they were members of such training camps?
3. Are persons who entered the United States Military Academy at West Point and the Naval Academy at Annapolis, and from those places became veterans of the world war, entitled, under the act, to compensation?
4. Is the rule prescribed by the state board of compensation limiting the compensation of eligible claimants to the fund to June 30, 1919, valid or a proper exercise of discretionary power of the board under section 4 of the act?
5. It being conceded that the fund already voted by the people and appropriated by the legislature is insufficient to pay all claims in full, whether the equitable rule of paying each claimant his pro rata share should be invoked?
The questions will be considered in their order.
1. 'The plaintiff contends that regular soldiers, sailors or marines who were in the service of the United States prior to the declaration of war are not beneficiaries of the act and should be excluded from participation in the compensation awarded; that the regulars who enlisted in the military, naval or marine corps service prior to the declaration of war were not moved to enlist because of the world war but because of the profession, its emoluments, promotions and stations; that the regulars did not sustain a loss of occupation and calling because of the war; that, having enrolled as regulars, the war was only an event of their service; that, because of the war, they obtained additional emoluments, promotions and honors which they never would have obtained had it not been for this event in their service; that the compensation act was not intended for their benefit. On the part of the defendants it is contended, not only that the plain intent and meaning of the statute includes the regular soldier, but that there were good and sufficient reasons which moved men through the purest patriotism throughout the entire struggle between the European armies, and before the declaration of war by the United States, to enter the service for the impending conflict, clearly discernable. We need not here discuss such reasons or motives which then actuated men. Those who desire will find such questions fully discussed in recent histories of the world war. (See, Simonds’ History of the World War and Reference History of the War, New International Encyclopedia.) Attention to the statute is sufficient. Its language discloses a clear, plain and unmistakable meaning. It is not ambiguous or lacking in definiteness or preciseness. The act relates to compensation for veterans of the world war. It includes any person who was a resident of the state of Kansas at the time of his entering the service, who served in any branch of the army, navy or marine corps of the United States in the world war and who was honorably discharged. No strained construction of its provisions is necessary. The langua'ge conveys.no hidden meaning. There is no discrimination against volunteers, drafted men, men in the regular army, national guards, or any branch of the army, navy or marine corps. It makes no distinction as to manner in which the person entered the service, whether inducted voluntarily, drafted or commissioned in any branch of the army, navy or marine corps of the United States. All were engaged in the same laudable enterprise. They relinquished the pursuits of peace and safety for those of privation and danger. When the legislature and the people came to make provision for their compensation, they did not distinguish between regular army men and those in other branches of the service.
2. It is contended by the plaintiff that the provisions of the National Defense Act, relating to officers’ training camps, do not warrant the payment of compensation to those who served in the training camps during such service; that the status of such persons under the compiled statutes of the United States, is that of citizens; that they were only preparing to enter service, and that, until they acually did so, they cannot be regarded as members of the army, navy or marine corps of the United States, and consequently, not entitled to compensation under the provisions of the act under consideration. We are here giving consideration to the intention of the legislature and the electors of Kansas when they provided the compensation. We find no language in the act or elsewhere indicating an intention of the legislature or of the people of Kansas to exclude the training camp soldiers of the world war from compensation for the time spent in the camps. Ample reasons for these men entering the camps at the time should not now be overlooked.
Shortly after the outbreak of the war the president declared that eventually this country must participate in the salvation of the civilization of the world; that it was the duty of young men to prepare themselves. About the same time Major General Leonard Wood advocated the establishment of military training camps for the instruction of the youth of the land against the day when the United States must enter the war. Such camps were established. The secretary of war, acting under the authority of the National Defense Act of June 3, 1916, established training camps to train men to officer the troops of the United States during the emergency. Men of special fitness, physically, mentally and educationally, were appealed to on patriotic grounds to leave their civil occupations, their professions and businesses and enlist for this training. Hundreds of Kansas men, in response to these appeals, volunteered on this basis, left their homes and civil occupations, were accepted and entered these camps. On arrival at the camps they were checked in, issued complete military equipment, assigned to companies, placed in barracks and,each took the following oath:
“I hereby acknowledge that I have enlisted for a three months’ course of instruction at the training camps for reserve officers and candidates for commission in the army of the United States, to be held at- or at such other places as may be designated by proper authority, commencing -, 1917, and I agree to obey all rules and regulations prescribed by proper authority for the government of said camps. I further agree to accept such commission as may be tendered to me by the secretary of war; and I do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America, and that, during the period of said camp, unless sooner discharged by competent authority, I will obey the orders of the president of the United States and of the officers appointed over me according to the rules and regulations established by the secretary of war.”
It is said that the military discipline at the training camps was the strictest encountered anywhere in the service. All who entered immediately lost their status as civilians and assumed a military status. They lost their constitutional right of trial by jury; were subject, under all circumstances and at all times, to military control. They were deprived of their liberty for infractions of military rules or orders without any civil trial. They could not leave the camps or withdraw from the service except upon authority of the camp commander, in each case, for cogent reasons, the sufficiency of which were judged by military authority. The soldier had no option and was at all times obligated to accept whatever commission was offered him. The option as to whether he should remain in the service of the government was vested in the government of the United States and not in him. During service in the training camp he performed the same duties as other soldiers. To all intents and purposes they were doing service as much as those enlisted in other branches. In a'great majority of cases those who enlisted in the training camps were commissioned and remained in the service during the war. It is also urged that these men did not go to the camps solely by reason of the emergency but that they were moved, at least, in part, by selfish motives. The legislature and the electors of this state did not predicate the paying of compensation upon motive of entering the service. Who is now able to analyze the conflicting emotions which moved men in'those stirring times? It is said that the highest mortality occurred among the junior officers, those likely to be selected from the training camps. How then are we able to say that these men acted with a selfish motive when they voluntarily abandoned their peaceful pursuits, bade their families goodbye and set out on war’s uncertain adventure? They are entitled to participate in the fund for the time served in the training camps.
3. The question is presented, whether persons who entered the United States Military Academy at West Point and the Naval Academy at Annapolis, and from there became veterans of the world war, are entitled to compensation under the act. There appears to be no question but that cadets in training at West Point are recognized as being in the regular army of the United States and that cadets at Annapolis are understood to be in the navy. (Act of June 3, 1916, 39 U. S. Stat. at Large, ch. 134, §§ 1, 2, p. 166; act of June 4, 1920, 41 U. S. Stat. at Large, ch. 227, §§ 1, 2, p. 759; United States v. Watson, 130 U. S. 80; United States v. Cook, 128 U. S. 254.)
It is also conceded by the parties to this action that cadets in attendance at the United States Military Academy at West Point and the Naval Academy at Annapolis are members of the army and navy of the United States. We are therefore of the opinion that cadets in either institution who were citizens of Kansas and who served in the world war are entitled to compensation under the act.
4. The question is presented, whether it is within the power of the compensation board to fix a date (June 30, 1919) limiting the time for which compensation will be allowed those who were in the service, and if not within the power of the board so to do, whether the board may establish a rule placing the burden of proof on the applicant to show that he could not sooner have retired from the service. Whatever authority the compensation board may have is given by section 4 of the act. It may be said that the rules which the board may make for the effective exercise of their power and for the discharge of their official duties are administrative and ministerial. They are made for the accomplishment of the business with dispatch. The board is not empowered to make rules which amend or which have the effect of amending the statute nor to modify its terms in any degree. The statute provides that compensation shall be paid “the sum of one dollar for each day of his or her entire service." It prescribes no limit to the compensation and no date on which it should cease. It states neither a beginning nor an ending for such service, but says that those who entered the world war prior to November 11, 1918, shall be entitled to compensation. The world war had a legal beginning and ending. For some specific purposes it might be considered as ending on a specified date, but, unless otherwise specified, it began on the declaration of war and ended at the date of the proclamation of peace. The two dates are April 6, 1917, and July 2, 1921. (Joint Resolution of Congress, act of July 2, 1921, Fed. Stat. Ann. 1921, supp., p. 68.) We are of opinion, with reference to the establishing of a rule requiring applicants to show that they could not sooner have ended their service, that the language of the statute which states clearly that the applicant is entitled to pay for each day of his entire service, precludes authority on the part of the board to require any such showing. The date of the applicant’s discharge is sufficient.
5. It is conceded by the parties to this action that the fund of $25,000,000 voted by the people and appropriated by the legislature will not be sufficient for the purpose intended. This is indeed a regrettable situation, one for which the best possible solution must be found. It is a general policy of courts of equity to distribute assets proratably among all the creditors. One or more may not obtain preference or priority over the others. The $25,-000,000 voted by the people and appropriated by the legislature, is a trust fund for all veterans of the world war who come within the requirements of the act. It would not be just to pay one veteran all that is due him and another nothing, nor to pay one in full and another in part only. The statute is framed on equitable principles. It is designed to do a public duty to those who served their state and country in time of peril. The application of the equitable rule of payments between debtor and creditor should govern here as in any case of the insufficiency of funds. This rule was laid down at an early date and has been consistently applied to the present time. Under the circumstances the rule of equity requires a prorating of the fund in order that there may be equality of distribution among those entitled to participate. A moral duty requires that the available fund be extended to the fartherest possible degree and that the next convening legislature 'take all necessary means to provide for whatever deficiency may be found to exist. It would be manifestly unjust to pay some of the claims in full at this time and compel other worthy veterans to wait for their proportionate part until provision for the balance can be made by another legislature. The circumstances require the payment of every veteran of as large a per cent of his claim as possible and as soon as humanly possible. It will, therefore, be the duty of the board to prorate and pay the claims of the applicants for as large a per cent of the amount due as may be safe in order that every possible claimant entitled to participate may receive his just proportion. The board should also designate some reasonable time in the future within which applicants may file and complete their claims and then, when all claims have been properly considered, make a further payment of the balance remaining in the fund.
Judgment for plaintiff in part and for defendant in part. | [
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The opinion of the court was delivered by
Dawson, J.
These were actions to recover on policies of fire insurance on a stock of merchandise. The goods were damaged by fire on December 26, 1921. They were covered by about a dozen policies of insurance, ranging from $1,000 to $3,000 each and aggregating over $27,000, which was about one-half the sound value of the insured property.
Following the fire the usual notices of loss were given, and one Harris, adjuster for the insurance companies concerned, called on plaintiff and made an offer to settle the loss for all the companies at $11,000. This was declined. Plaintiff demanded an appraisement, and accordingly Carl M. Anderson, of McPherson, and George Knorr, of Wichita, were selected as appraisers, and H. M. Reed, of Newton, was accepted as umpire. Appraisers Anderson and Knorr were unable to agree on the loss and damage, so the umpire, with the approval of Anderson, fixed the sound value of the goods before the fire at $57,698.84 and the loss and aggregate liability of all the insurers at $26,300. The pro rata share of the loss which the appellant the Northern Assurance Company was called on to pay was $1,928.29, and the proportionate liability of the appellant the AEtna Insurance Company was fixed at $2,320.72. Several of the companies refused payment and a series of actions was instituted, two of which culminated in judgments against the present appellants, and the matters involved therein are brought here for review.
The answers of these appellants and the evidence to maintain their respective defenses were substantially the same. They pleaded and their evidence attempted to prove that the sound value of the mercantile stock before the fire was not in excess of $35,000, that the pro rata shares of these appellants’ liabilities were fixed by the award at sums grossly in excess of a proper amount, and in excess of the amount at which plaintiff has actually fixed its first claim in its sworn proof of loss. That amount had been $24,707.04. It was also part of the defense that appraiser Ander son and umpire Reed improperly included in their award the sum of $5,000 for loss of rents, profits and other inconvenience suffered by plaintiff as a result of the fire. Another defense was that appraiser Anderson was an employee of plaintiff, and that he falsely and fraudulently represented to his fellow appraiser and to the umpire that it had been agreed between plaintiff and defendants that the plaintiff’s inventory should be accepted and be binding as to the amount and value of the goods on hand before the fire, and that as a consequence of this false and fraudulent misrepresentation the appraisers and umpire did not examine the goods, but relied on the inventory, and that the inventory was grossly excessive in its value.
The trial court made extended .findings of fact, some of which read:
“No. 22. . . . The evidence in this case is not of such a character as to convince the court that Carl M. Anderson, the appraiser selected by the plaintiff, was interested or an employee of the plaintiff, nor that he was guilty of any bias or prejudice or fraud, or that he made any false representations in behalf of the plaintiff; and the court does not find that said Anderson was interested or that he was an employee of the plaintiff, or that he was guilty of bias or prejudice or fraud or that he made false representations. The evidence shows that the appraisers and the umpire made a personal examination of the stock of goods, counted the suits and overcoats, and made an examination of the results of the fire, and that they determined for themselves the sound value of the entire stock of goods, and that the appraiser, Carl M. Anderson, and the umpire, H. W. Reed, agreed upon the appraisal, and that they did not include in the allowance illegal or unlawful items as claimed in the answer. The court finds that the appraiser, Anderson, and the umpire acted in good faith, and that the sound value of the stock and the damage pertaining thereto occasioned by the fire represented their own judgment as to such matters. . . .
“No. 29. The value of plaintiff’s stock at the date of the fire was substantially as recited in the award.
“No. 30. The damage sustained by the plaintiff as the direct result of the fire was substantially as recited in the award.”
Defendants’ motion to set these and some less important findings aside was overruled. Their motion for additional findings was denied. Judgment was entered for plaintiff in conformity with the umpire's award. Hence these appeals.
There is an assignment of errors based on the refusal of the trial court to make certain findings suggested by defendants, and on certain of the findings which the trial court did make, the chief of which are set out above. But defendants’ brief makes no at tempt to follow this assignment. Indeed, it seems clear that what these appellants desire is not a critical examination of some one or more assigned errors committed by the trial court.of sufficient gravity to require or justify a reversal of the judgment, but that this court should updertake independently to try these lawsuits de novo on the record and give judgment thereon according to our discretion, regardless of the judgment of the trial court. Such a theory of the scope of appellate review is altogether foreign to this jurisdiction. (Bruington v. Wagoner, 100 Kan. 439, 441, 164 Pac. 1057; Upton v. Pendry, 110 Kan. 191, 203 Pac. 300; Hayslip v. Insurance Co., 112 Kan. 189, 210 Pac. 188; Nelson v. Railroad Co., 116 Kan. 35, 225 Pac. 1065.)
Coming, then, to the matters which may properly concern this court on appeal, it is difficult to get a hold of anything which looks like a point for judicial discussion. Defendants lodge a barrage of words against appraiser Anderson, but the trial court was not bound to.adopt their view of his qualifications or fairness, or that he improperly imposed his will‘upon the umpire. This court cannot say that any erroneous or undue significance was attached to the “perpetual inventory” in arriving at the amount of the award and the insurers’ aggregate liability. It is of no consequence now what the testimony of Harris, the adjuster, and Knorr, the appraiser, chosen'by the defendants, may have been.. The trial court saw fit to minimize or discredit their testimony so far as it was at variance with that given in behalf of plaintiff. The same principles of appellate review apply to the contention that umpire Reed took into consideration an indirect loss of $5,000 sustained by plaintiff, such as rents and loss of business. Reed testified that he did not intend to include that sum in fixing the amount of the award. The trial court believed him, which settled that controverted fact.
Neither is it of any consequence that the award was in excess of plaintiff’s original claim as shown by its proof of loss. Since that claim and proof were rejected by defendants, plaintiff was no more bound thereby than they were.
The court is urged not to overlook the fact that “within two hours after Anderson returned his outrageous award the stock was being moved.” Plaintiff’s lease on the building had expired on January 1, 1921. By forbearance of the landlord, plaintiff was permitted to occupy the premises until the appraisement and award were determined. There was no occasion to delay the removal of the damaged stock another hour. Furthermore, Harris, the defendant’s adjuster, knew the stock was being moved and disposed of and made no objection. Touching the “outrageous award,” it may be noted that various witnesses placed the sound value of the stock at $50,000, $60,000, $62,000 and-$65,000, and that Harris, defendants’ adjuster, conceded that its salvage value was no more than $24,000, so there was substantial evidence that plaintiff’s loss was from $26,000 to $41,000, which clearly placed the award of $26,300 beyond this court’s jurisdiction to disturb. Hence the judgments against appellants for their proportionate shares of the aggregate liability must be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to compel specific performance of a contract to assign an oil and gas lease. The plaintiff was defeated, and appeals.
Van Pelt and Johnson, who owned a seven-eighths interest in an oil and gas lease, agreed to assign six-eighths to Prewett, by written contract which reads as follows:
“This agreement, entered into this 2nd day of September, 1921, by and between J. T. Van Pelt and C. H, Johnson, of Colony, Kansas, parties of the first part, and Chas. Prewett, of Coffeyville, Kansas, party of the second part, witnesseth:
“That for and in consideration of the sum of one dollar and the meeting of the conditions and obligations in a certain oil and gas lease covering lot 34, block 3, in Graeeland addition to the town of Colony, parties of the first part agree to assign six-eighths (%) interest in the oil and gas lease covering the above described property within six days from date. It is further agreed that, in case party of the second part drills a producing well on the above described premises, and the gas or oil is put into the Kansas Natural line, then parties of the first part agree to pay their proportionate part of the expense of putting same in. It is agreed and understood that parties of the first part assign six-eighths (%) interest of their seven-eighths (%) interest unto party of the second part. This contract made in triplicate, original held in escrow in First National Bank, and copy to each party thereto.”
The material facts of the controversy were stated by the court in findings of fact which, with the conclusions derived therefrom, follow:
“findings.
“7. Prior to the time that the three individuals went to the bank [to have the contract drawn], there had been some discussion with reference to the time in which the plaintiff Prewett was to have his drilling rig upon the lease in question. While it was understood that the contract to be entered into would require him to have the rig on the lease within six days, yet it was also understood between the contracting parties that he would be unable to get his rig there within that time, and a limitation was to be inserted, with the understanding that he would get his rig on the lease as soon as possible, and in time to comply with the provisions contained in the lease which was being assigned, which provided that a well should be commenced on the land on or before September 24, 1921.
“8. After the signing of the agreement by the defendants Van Pelt and Johnson, the plaintiff went some place near Coffeyville and loaded his rig and sent it to the city of Coffeyville, where it arrived about September 8, and apparently the rig remained in the yards of Coffeyville until after September 24, 1921. The plaintiff Prewett did not attempt to take possession of and did nothing towards the drilling of a well on the lease in question on or before September 24, 1921.
“9. After the plaintiff’s drilling rig arrived at Coffeyville, he apparently made no further effort to ship the same to Colony so as to enable him to begin the drilling of a well on the lease in question on or before September 24, 1921.
“11. About September 11, 1921, the defendants Van Pelt and Johnson sold the lease in question to the defendant J. B. Kirk, in consideration of the sum of $1,000. 'At the time Kirk purchased this lease, he had notice of the fact that the defendants Johnson and Van Pelt had already contracted for the sale of their interest in the lease to the plaintiff Prewett. He did not, however, have knowledge of the actual conditions of such contract.
“12. The defendant Kirk erected a drilling rig on the lease in question about September 14, 1921. This action was begun on September 15, 1921, on which date service was secured upon the defendant Johnson, and the defendant Kirk was served with summons about January 5, 1922. The plaintiff knew of Kirk’s activity with respect to commencing a well on the lease in question about the time Kirk began work.”
“conclusions.
“3. The plaintiff was guilty of such laches as to bar him from any recovery in this action because of his failure to carry out the conditions imposed by the lease referred to in finding No. 10.
“4. The bringing of this action did not excuse the plaintiff from commencing or at least attempting to commence a well on the lease before September 24, 1921.
“5. The fact that the defendant Kirk began a well on the lease and that the plaintiff knew this fact, did not excuse the plaintiff from commencing or attempting to commence a well on the lease before September 24, 1921.”
It will be observed the learned district court was of the opinion Prewett’s obligation to comply with the terms of the lease by commencing to drill on or before September 24 required him to drill by that time, or to make contentious effort to do so, in opposition to the conduct of Van Pelt, Johnson, and Kirk.
Van Pelt and Johnson agreed to make the assignment within six days, and to do so notwithstanding Prewett'could not get his drilling rig on the lot within that time. On September 8, the sixth day, Prewett got his drilling rig to Coffeyville, and was then entitled to his assignment. On the 11th, three days later, Van Pelt and Johnson ranged themselves as adversaries of Prewett, and disabled themselves from performing at all by assigning their entire interest in the lease to Kirk. Kirk purchased with notice of the contract to sell to Prewett, and Kirk’s occupation of the premises on the 14th, under his assignment, was a hostile act toward Prewett. There is no finding that, previous to the 11th or 14th, Prewett had abandoned the contract, or that because of delay in getting his rig out of Coffeyville it would have been impossible for him to begin drilling before the 24th. The facts found do not warrant an inference of either abandonment or impossibility of performance and, as indicated, the fault attributed to Prewett is that he did not strive tó begin drilling by the 24th, notwithstanding what had occurred.
The consideration for the assignment to Prewett wa's that he would fulfill the covenants of the lease, including the covenant to commence' a well by the 24th; and' ordinarily a plaintiff who has not performed on his side may not have the benefit of the equitable remedy of specific performance. Likewise, ordinarily a plaintiff must have been ready, willing, and eager to perform at all times. A vendor, however, who prevents or obstructs or opposes or repudiates performance by his vendee is not in a position to interpose nonperformance, or delay in performance, as a bar to relief. A purchaser from the vendor, with notice of the vendee’s rights, stands in the shoes of the vendor; and when performance is obstructed by adverse possession created by the vendor and a purchaser from him with notice, the vendee is not obliged to resort to self help. He may resort to equity, as Prewett promptly did on discovering Kirk’s drilling rig on the premises.
Kirk’s answer admitted he had drilled a gas well on the lot, and Prewett must still perform as near as may be. In the accounting which must follow a decree of specific performance against Kirk, the proper cost of drilling the well, and of otherwise complying with the covenants of the lease except as prescribed by the contract, should be charged to Prewett.
There is nothing else of importance in the case. The contract was not so uncertain as to be unenforceable. Although not signed by Prewett, the obligations of the contract became mutual when Prewett acted upon it. The subject of fraud in procuring the contract was disposed of by a special finding sustained by sufficient evidence. The finding is that when Kirk purchased he had notice that Van Pelt and Johnson had already contracted to sell to Prewett. That was notice enough to prevent Kirk from being an innocent purchaser. The issue of abandonment of the contract by plaintiff was raised by the pleadings. Besides what has already been said, it may be observed defendants made no request for a finding on that subject, and it is now out of the case. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264.)
The judgment of the district court is reversed, and the cause is remanded with direction to proceed in accordance with the views expressed in the foregoing opinion. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Forrest B. Anderson for the recovery of a broker’s commission from the defendants for the sale of their home. Plaintiff produced his evidence and the trial court held it to be insufficient, and upon a demurrer thereto gave judgment for defendants.
In his appeal plaintiff contends that under the evidence he had earned a commission. It appears that plaintiff was employed to sell the property at a price of $4,750, the purchaser to carry $2,000 of the same in a mortgage and pay the balance of the price in cash. A broker other than plaintiff had been employed to effect a sale of the same property. The plaintiff endeavored to negotiate a sale to A. B. Jackson, who subsequently purchased it through the other agency. Plaintiff, it appears, took Jackson over to see the property, but when they arrived there Jackson informed plaintiff that he had already been shown the house with a view of selling it to him. The defendants had made the carrying of a mortgage of $2,000 and certain payment in cash of the price, the basis of any sale that should be made. The testimony tended to show that plaintiff was not able to make the required arrangements or induce Jackson to purchase the property on the prescribed terms. The other broker was able to make the required arrangements with the purchaser, and it is said that he has received his commission for the sale. Before plaintiff could recover it was incumbent on him to prove that he was the primary, proximate and procuring cause of the sale. The testimony tended to show that the property had been brought to the attention of Jackson before plaintiff began negotiations with him and that although plaintiff made efforts to arrange a sale to Jackson according to the terms required, his negotiations were unsuccessful.
Under the evidence we cannot hold that the finding of the trial court that plaintiff was not the primary, efficient and procuring cause of the sale, was erroneous.
Judgment affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action is one of mandamus to compel the bank commissioner to issue to plaintiff a certificate payable out of the bank depositors’ guaranty fund.
The Traders State Bank of Arkansas City closed its doors March 15, 1922.. For eight or ten years previous to that time the plaintiff had carried with it a checking account. On January 11, 1921, the plaintiff left with the bank $2,200 of Victory bonds under a contract which reads:
“The Traders State'Bank.
Not Transferable No. (Copy)
Arkansas City, Kansas, Jan. 11, 1921.
This certifies that W. T. Bloomheart has deposited with this bank United States bonds of the Victory issue of the par value of two thousand and two hundred dollars, with unmatured coupons attached, for which we agree to pay a like amount in the bonds of the same issue or cash at our option on the surrender of this certificate. Interest at the rate that these bonds bear will be credited to the savings account of the payee herein named, in place of said coupons as they mature.
Deposits in this bank guaranteed under the Guaranty law of the State of Kansas. Frank E. Hensy, for Cashier.”
On the same day the plaintiff also left with the bank $500 in Fourth Liberty Loan bonds under a similar contract.
On August 23,1921, the bank sold plaintiff’s bonds, together with others, totaling approximately $11,000 to the Commerce Trust Company of Kansas City, Mo.
On January 3, 1922, the plaintiff, having no knowledge that the bank had disposed of his bonds, made another contract with the bank which reads:
“Memo Contract January 3, 1922.
“This contract made and entered into by and between W. T. Bloomheart of Arkansas City, Kansas, party of the first part, and the Traders State Bank, Inc. of Arkansas City, Kansas, party' of the second part, witnesseth: That W. T. Bloomheart, party of the first party hereby loans to the Traders State Bank, party of the second part, the following Liberty bonds:
$2,200.00 Victory bonds.
500.00 Fourth Liberty Loan bonds.
It is understood by and between the parties hereto that the said bonds are to be used and accounted for by the party of the second part, the same as a cash deposit, and that said bank, the party of the second part, agrees to deliver to the party of the first part, the bonds of description and issue, except as tb the serial number, to the party of the first part, on demand.
W. T. Bloomheart, First Party.
The Traders State Bank, By Walter W. Olson, Ass’t Cashier, Second Party.”
(The following was later endorsed thereon.)
“Feby. 14, 1922. Received of the Traders State Bank $150.00 in Victory bonds. W. T. Bloomheakt.” .
Did the plaintiff, under the transactions detailed, make a deposit with the bank which entitles him to a certificate on the bank depositors’ guaranty fund?
It is the contention of the plaintiff that the acts of the parties on January 3, 1922, evidenced by the agreement of that date, constituted a deposit by the plaintiff which entitles him to participate in the fund, and that all transactions relative to the bonds in question which occurred previous to that date are historical only and have no material bearing on the controversy.
The defendant contends that the transactions of January 11, 1921, did not constitute deposits but were contracts of bailment; that a bailment of bonds is not a deposit within the meaning of the bank guaranty fund act; that if the transactions constituted a deposit the plaintiff is barred because of the agreement of the bank to pay 4% and 4% per cent interest, which is in excess of that allowed on guaranteed deposits; that there was no deposit by plaintiff on January 3, 1922, because the bank had, on August 23 preceding, converted and embezzled the plaintiff’s bonds; that the bonds were negotiable instruments and by the sale o-f August 23 the Commerce Trust Company became a purchaser, in good faith, had acquired good title, and that plaintiff’s title was extinguished; that the transaction of January 23,1922, was, therefore, not based upon any actual bonds.
Contracts of deposit, like contracts generally, are to be construed in the light of the surrounding circumstances, including the relationship of the parties. The contract should be construed as a whole, and the intention of the parties governs. (18 C. J. 566.) The plaintiff’s contention that all acts of the parties preceding the con tract of January 3, 1922, are historical only and do not affect his case is not tenable. The plaintiff cannot escape the results of his own action. All of the acts and circumstances are to be construed together. Each step in the transaction dovetails into and modifies every other step. One who has adopted a certain line of action in a given matter may not segregate a portion which he considers to his advantage and disregard others less advantageous.
Deposits may ordinarily be classified as general and special.
In Newmark on Bank Deposits, section 11, it is said:
“Deposits made with banks may be divided into two classes, those in which the bank becomes bailee of the depositor, the title in the thing deposited remaining with the depositor, and that kind peculiar to banking business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the banker, and the latter, in consideration of the loan of the money, and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand. ... A special deposit of money in a bank is made where moneys, such as bills in packages or specie in boxes, are entrusted to the bank, not to be used, but to be kept safely, and specifically returned. An ordinary bank deposit is made when a voluntary credit is taken with the bank, and for which no bank note, bill or similar evidence of debt is given and for which there exists a right to draw unconditionally.”
In Boyden v. the President and Directors of the Bank of Cape Fear, 65 N. C. 13, it was said:
“The ordinary relation, subsisting at common law between a bank and its customers on a general deposit account is simply that of debtor and creditor. A deposit by a customer, in the absence of any special agreement to the contrary, creates a debt, and the payment by the bank of the customers’ checks, discharges such debt pro tanto. The bank or the customer may at any time discontinue their dealings, and the balance of the account between them can be easily ascertained by a simple calculation. . . . The fact that a regular customer sometimes made special deposits of bank bills with a bank, has no tendency to show that he had notice of change in the ordinary usage and custom of the bank as to general deposits, for a special deposit constitutes a contract essentially different from that which arises by implication of law from a general deposit. A special deposit is a naked bailment, and on demand of the bailor, restitution must be made of the thing deposited. And as the bank acquires no property in the thing deposited, and derives no benefit therefrom, it is bound only to keep the deposit with the same care that it keeps its own property of a like description.” (Syl.)
In National Bank v. Graham, 100 U. S. 699, it was said:
“Sec. 5228 of the Revised Statutes, which provides that it shall be lawful for a national bank after its failure to ‘deliver special deposits,’ is as effectual a recognition of its power to receive them as an express declaration to that effect would have been. The phrase ‘special deposits,’ so employed, embraces the public securities of the United States.”
The case of Pattison v. Syracuse National Bank, 80 N. Y. 82, was an action brought to recover the value of certain negotiable railroad bonds alleged to have been deposited for safe-keeping by plaintiff with the defendant and which the defendant refused to deliver on demand. In the opinion it was said:
“The numerous cases in the books relating to special deposits in banks, disclose how extensively, even in modern times, this business has been and is carried on,.and the general understanding in respect to it. The very act of Congress under which the national banks are organized recognizes the practice, and provides for the return of special deposits by national banks, even when required to suspend their general business. Section 46 of the act of 1864 provides that, in certain events, the banks shall cease to prosecute business, ‘except to receive and safely keep money belonging to them, and1 to deliver special deposits’ This provision assumes that such banks will receive special deposits, and impliedly recognizes and sanctions their so doing, by making express provision enabling them to return them at a time when they are prohibited from paying out to depositors funds held on general deposit. , . . The term special deposits has, and has always had, a well known and defined meaning. In the Marine Bank v. The Fulton Bank (2 Wall., 252, 256), Miller, J., says: ‘all deposits made with bankers may be divided into two classes, namely, those in which the bank becomes bailee of the depositor the title to the thing deposited remaining with the latter; and that other kind of deposit of money, peculiar to banking business, in which the depositor for his own convenience parts with the title to his money, and loans it to the banker.’ This description marks the distinction between general and special deposits. In Story on Bailments (§ 88), the same distinction is recognized, and also in Rawson v. Real Estate Bank (5 Ark., 297). In the Vermont case itself, at page 554, the court defines general deposits; and says that at the time of the passage of the act, deposits in banks had a well known and understood meaning, and that the delivery of money, securities, or other property, to be specifically kept and re-delivered, had been equally well1 known as special deposits. And in Turner v. First Nat. Bank of Keokuk (26 Iowa, 562) the authority to return special deposits, contained in section forty six, is held to refer to deposits for safe-keeping.” (p. 95.)
Smith v. First National Bank in Westfield, 99 Mass. 605, was a case of a special deposit of bonds with a national bank and the bank was held to be the bailee of the bonds.
In Foster et al., Executors, v. Essex Bank, 17 Mass. 479, a special deposit for safe-keeping was made with the defendant of a cask containing gold coin. The question was as to the liability of the bank as bailee. The court held that the practice of the bank having been to receive such deposits and its building and vaults having-been allowed to be used for that purpose and its officers employed in receiving into custody the things deposited, the corporation must be deemed the depositary.
In Nat. B’k. of Ft. Edw. v. Wash. Co. Nat. B’k, 12 N. Y. Sup. Ct. 605, 607, it was said:
“In the strict meaning of the word, borrowed from the civil law, deposit is the delivery of a thing for custody, to be redelivered on demand, without compensation. Such are deposits of securities or valuables, in a bank, for safe-keeping. But ordinary money deposits in banks are clearly different, in this respect; the identical money deposited is not to be returned — only its equivalent; and the money deposited becomes the money of the bank. The bank really becomes debtor to the depositor.”
Michie on Banks and Banking, 1297, states:
“The title to the thing deposited specially is not in the bank but remains in the depositor. Where a deposit is made generally the relation between the bank and depositor is that of debtor and creditor, but where the deposit is made specially, the relation between the bank and the depositor is that of bailor and bailee.” (See, also, Preston v. Prather, 137 U. S. 604, 34 L. ed. 788.)
In Scott v. National Bank of Chester Valley, 72 Pa. St. 471, a special deposit of bonds for safe-keeping had been made with the defendant by one of its customers.
In Lancaster County National Bank v. Smith, 62 Pa. St. 47, a special deposit of United States bonds had been made with the bank.
In the early case of Johnson v. Reynolds, 3 Kan. 257, the question of a special deposit was discussed. A regular boarder at a hotel deposited gold with the hotel keeper. It was held that the bailment was a naked deposit without reward. In the opinion it was said:
“Manifestly it is that specie’s of bailment known in law as a deposit, deposition, which is defined to be ‘a naked bailment of goods, to be kept for the bailor without reward, and to be returned when he shall require it. (Story on Bail., §§ 4, 41.) Or a contract by which one of the contracting parties gives a thing to another to keep who is to do so gratuitously, and obliges himself to return it when he shall be requested. Pothier Traite Depot, n. 1; Civil Code of France, art. 1915.” (p. 261.)
Hale v. Rawallie, 8 Kan. 136, considered the question of a special deposit of money. It was held that “The transaction between the parties amounted to a bailment; one of that species known as a deposit, which is defined to be 'a naked bailment of goods to be kept for the bailor without reward and to be returned when he shall require it.’ ”
It is clear that the relation between a bank and its depositor ordinarily is that of debtor and creditor. But, where a special deposit is made of specific articles, the relation is that of bailor and bailee. (Bank v. Bank, 106 Kan. 303.)
What are the facts here?
The plaintiff in his petition sets out a copy of the contract of January 11, 1921, and follows it with this allegation:
“That said Frank E. Hensy was duly authorized to issue said certificates and said bonds were then, and there delivered to said bank for safe keeping and receipts were given to this plaintiff in substantially the same form aforesaid and for the purpose aforesaid; that said bank continued to hold said bonds, in so far as plaintiff knew, and this plaintiff held said receipts until about the third day of January, 1922.”
The plaintiff, among other things, testified:
“That he left in the bank for safe-keeping $2,200 of Victory bonds and $500 of Liberty bonds on January 11, 1921 — Fourth Liberty bonds. One bore 414 and the other 4% per cent. I received pink slip for $2,200 Victory bonds and one of similar form for the Liberty bonds. Both same date. At that time I was carrying a checking account and had for the last eight or ten years. Had a pass-book in which entries and withdrawals were made. Just deposits.
“Q. Why did you take this receipt [referring to contract of January 3, 1922] instead of having credit entered on your pass-book for the amount? A. That was what the president gave me. That is all I know. He said that would give me credit and I could check on it. I knew I could deposit money and have credit put on my book and I knew I could sell these bonds and put the proceeds in the bank.
“Q. Did you sell the bonds at that time? A. That is all the conversation that took place and what the bank gave me. The receipt represents what took place and represents the arrangement made with the bank. I knew I could have sold the bonds and taken credit. So far as I can see one is as good as the other. Walter Olson, assistant cashier signed the contract. I read it over.
“Q. You stated here that ‘W. T. Bloomheart hereby loans to.the Traders State Bank the following.’ You read that statement in the receipt before signing it? A. Yes, sir.
“Q. You knew you were signing the statement at that time? A. Yes, sir.”
E. H. Armstrong, assistant receiver of the bank, testified to the selling of $11,000 of Liberty bonds to the Commerce Trust Company in August, 1921; that plaintiff’s bonds were included; also that there appeared on the brown envelope in which the Bloomheart bonds were kept, “Property of W. T. Bloomheart, 306 South C. St. Arkansas City, Kansas. Liberty bonds purchased through Traders State Bank, Arkansas City, Kansas;” that there were various other papers in the envelope, including a receipt given by the bank signed by F. E. Hensy in which he received from W. T. Bloomheart, June 8, 1921, the papers for safe-keeping.
Frank E. Hensy testified, among other things, that Bloomheart had some bonds in the bank; that he looked after the bonds and notes; that when Liberty and Victory bonds were left for safekeeping he gave receipts; that he remembered Bloomheart getting the bond interest; that he did not remember when! Bloomheart first left his bonds in 'the bank; that his bonds were kept in the brown envelope; that he had a couple of other notes and some kind of certificates from the Masons in the envelope — certificate of stock— and his daughter had some bonds in there;
There was in evidence, a statement by Frank E. Hensy made to the receiver of the bank which, among other things, contained this language:
“The first part of January 1921, at the time so many deposit boxes of banks around the country were being rifled, Mr. W. T. Bloomheart became leary of keeping his Liberty bonds in the safety deposit box in the Traders State Bank, and at that time I informed him that a great number of people left their bonds for safe-keeping with the bank, and these were deposited in the bank safe. Mr. Bloomheart decided to do this, and on or about January 11, 1921, gave me his bonds to be kept "for him. These were placed in an envelope, and on the outside of the enevelope was Mr. Bloomheart’s name.”
What happened in this case is perfectly apparent. The plaintiff had been for a number of years a customer of the Traders State Bank. He carried a regular checking account, having a passbook in which general deposits were noted, against which he checked. In January, 1921, having some Liberty bonds, he decided to leave them with the bank for safe-keeping. They were placed in a brown envelope marked “Property of W. T- Bloomheart” and left with the bank. The brown envelope contained various other papers and receipts belonging to the plaintiff. All were left with the bank for safe-keeping. In August, 1921, the bank took the plaintiff’s bonds, without his knowledge, and sold them to the Commerce Trust Company, the bank, expecting later to replace the bonds. The bank finally failed without having replaced plaintiff’s bonds. In the meantime, however, the officers of the bank, realizing the situation, and hoping to protect the plaintiff against possible contingencies, executed the contract of January 3, 1922, under the belief that the plaintiff would be protected by the depositors’ guaranty fund.
It is clear that it was never contemplated by the legislature that the depositors’ guaranty fund should protect special deposits in the nature of bailments. Reference to the various sections of the statute touching deposits leads to but one conclusion: that the guaranty fund is for the protection of general deposits, made with the bank, of money or its equivalent, when title passes to the bank and there is created between the depositor-and depositary the relation of creditor and debtor.
The 'Kansas statute authorizing the organization of -banking corporations states that they “shall be permitted to carry on the' business of receiving money on deposit and to allow interest thereon, giving to the person depositing credit therefor.” (Laws of 1921, ch. 72, § 3.) It is apparent that the legislature, in enacting this statute, had in mind general deposits.
In National Bank v. Bank Commissioner, 110 Kan. 380, 389, this court, in considering a claim against the guaranty fund, said:
“Whether or not a deposit has been made depends on the nature of the transaction. As Commissioner Hunt states in one of his conclusions of law— ‘The bank guaranty law guarantees certain deposits, but not evidences thereof, whether they take the form of certificates, promissory notes, or receipts.’ There is no all-inclusive and all-exclusive definition of the term ‘deposit,’ but the essentials are well understood. Money left with a bank, subject to order of the person leaving it, is a deposit. A deposit may be accomplished by taking credit on the books of the bank for a discounted note, or even by some obligatory arrangement with the bank for credit. In creating a deposit, pure formalities may be dispensed with, such as taking money across the counter on a matured certificate of deposit, and passing it back to obtain a new certificate .... Speaking generally, to create a deposit, within the meaning of the statute, money or the equivalent of money must in intention and effect be placed in or at the command of the bank, under circumstances which do not transgress specific limitations of the bank guaranty law,” etc.
The plaintiff contends that the transaction of January 3, 1922,' was a sale of his bonds to the bank and a resulting deposit at that time.
The fundamental distinction between a sale and a bailment lies in whether an obligation exists to restore the thing delivered in the same or in an altered form, and whether the title passes. The transaction is a bailment if the identical thing is to be returned, although in altered form. (6 C. J. 1086.)
It is essential to a deposit, whether general or special, that there shall be, at the time of the transaction, money or its equivalent or specific property actually delivered by the depositor to the depositary. There are various statutes indicating that “a deposit” means something received by the bank at the time. (See Gen. Stat. 1915, §§ 532, 533, 555, 567, 584, 585, 586.)
Under the circumstances narrated in this case, the plaintiff deposited his bonds with the bank for safe-keeping. This was no sale. On January 3, 1922, the plaintiff had no bonds to sell. At that time there existed an obligation from the bank to the plaintiff which was due. Its contract of that date was for the purpose of evidencing that obligation.
In National Bank v. Bank Commissioner, supra, it was said:
“When the primary purpose is not to establish the relation of debtor and creditor between bank and depositor, but to discharge some matured obligation of the bank by giving a time certificate of deposit, the certificate is no more than a bill payable.” (p. 390.)
In Lankford, State Bank Commissioner, v. Schroeder, 47 Okla. 280, it was said:
“Where one who purchases notes from a state bank, paying cash therefor, leaves the notes in the bank under an agreement with the cashier that the bank will collect the notes and place the money received to the purchaser’s credit account in the bank, and the bank afterwards collects the notes and, without the purchaser’s knowledge or consent, appropriates the money to its own use without giving the purchaser credit therefor, and the bank afterwards, without paying the purchaser his money, except a very small part thereof, fails and goes into the control of the State Bank Commissioner under the state banking law, held, the purchaser of the notes is not a depositor of the failed and insolvent bank, and is not entitled to payment of his claim against the bank out of the bank’s assets in the hands of the bank commissioner and necessary for the payment of the bank’s depositors, or out of the state guaranty fund.”
It is apparent that if it had been the intention of the plaintiff to sell his bonds to the bank and receive credit therefor, and the intention of the bank to buy his bonds and give him credit therefor, he would have been given credit in his pass-book in a similar manner to that in which he had been doing business with the bank over a period of years. All the circumstances show clearly that such was not the intention of the parties. Other questions presented in the briefs need not be discussed.
Writ denied. | [
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The opinion of the court was delivered" by
Mason, J.:
This is a proceeding brought by the state on the relation of the attorney-general to require the board of trustees of a community high school in Norton county to call an election upon the proposition of issuing bonds for the erection of a building, th'e obvious purpose on both sides being to settle the question whether the statute gives the defendants power to do so.
At a time when a number of county high schools were in existence, organized under various general and special acts, a statute was passed containing these provisions:
“That upon the taking effect of this act, all county high schools in the state of Kansas, regardless of acts under which created, shall be disorganized and in their stead shall be created community high schools whose territory shall include all the territory in said counties not included in the territory of other accredited high schools. Such schools so organized and established shall be known and styled 'community high schools.’ ” (Laws 1923, ch. 187, § 1.)
“That the powers and duties of the community high school in every instance shall be the powers and duties belonging to the county high school which it succeeds, except as hereinafter provided.” (Laws 1923, ch. 187, § 2.)
“All bond elections and other special elections, shall be held under the ■ same rules and regulations as are now provided for such elections by county high schools.” (Laws 1923, ch. 187, § 3.)
The statute does not expressly provide for the issuance of bonds for a community high school and it is not contended that bonds can be issued without statutory authority. The new organizations created by the act of 1923 are therein referred to as community high-school districts and the contention of the plaintiff is that to avoid the harmful consequences of what would otherwise be an omission (presumably inadvertent) in the statute they should be regarded as “school districts” within the meaning of the act reading: “for the purpose of erecting and equipping, or purchasing and equipping, one or more schoolhouses in and for any school district in the state of Kansas, the board of directors of the same shall have power to issue the bonds of the district in an amount not to exceed five-per cent of its taxable property.” (Laws 1920, special session, ch. 53, § 1.) The language just quoted, except for the addition of the phrase “and equipping” and changes of the percentage in the limitation clause, has been in the statute since 1879 (Laws 1879, ch. 49, § 1) and in substance since 1876 (Laws 1876, ch. 122, art. 13, § 1). In the act last cited, which covered nearly the whole field of school law, district schools and schools in cities of the first and second class were treated in separate articles. The context shows clearly that the expression “any school district in the state of Kansas,” as used in the section relating to the issuance of bonds, referred to the ordinary school district into which the county superintendent is required to divide the county, having a director, clerk and treasurer. The use of the same words in the course of an amendment relating to other matters could not extend its application to districts of a different kind from those already covered.
The county high school which in 1923 was converted into the community high-school district here involved was organized. under a special act (Laws 1899, ch. 229) providing for such organization in accordance with a general statute. (Laws 1886, ch. 147; Gen. Stat. 1915, §§ 9287-9303.) Neither the special nor the general act authorized the issuance of bonds to erect a building for this county high school and the latter (§9) forbade the board of trustees to contract for school buildings in excess of the amount on hand and to be raised by one year’s tax. Clearly the Norton county high school was not included in the grant to school districts of power to issue bonds for schoolhouses, and its mere conversion into a community high-school district with restricted boundaries does not in our judgment by any permissible liberality of construction enlarge its authority in this respect. If the matter were otherwise doubtful the act changing the name and character of county high schools seems to forbid looking beyond the high-school laws for power to issue bonds by providing that all bond elections shall be held in accordance therewith. Our attention has been called to no provision for the issuance of building bonds by a county high school under the act of 1886 excepting one which is limited in its operation to counties having a population of not more than 8,000, which would exclude Norton county. (Laws 1917, ch. 282, § 6.)
The writ asked is denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for compensation.- The plaintiff recovered, and defendant appeals.
The defendant is engaged in the business of manufacturing soda ash, bicarbonate of soda, and similar products, in the city of Hutchinson. The plaintiff, a laborer, working for the defendant, while engaged with another workman in hanging some 200-pound motors to the ceiling, suffered an injury to his hand. He was given first-aid treatment by a nurse in defendant’s employ, then treated by the company’s physician, and afterwards underwent an operation at a hospital by the company’s surgeon. In course of time he returned to the company. At first he did light work and later returned to his original position. At the time of returning to work he executed a release which reads:
“Received this day from the above named employer, the sum of Fifty-eight and 50-100 Dollars ($59.63) which sum being fixed by the mutual agreement of both parties such part of my wages for the period of (Hours Lost) 238% beginning on the 18th at noon day of November, 1920, and ending on the 20th day of December, 1920, as I am entitled to and making in all with the payments already received by me the sum of Fifty-eight and 50/100 Dollars (58.50) in consideration of which I hereby release and forever discharge said employer, his heirs, his executors or assigns from any and all action, causes of action, claims, demands or liability arising under or which may in any manner arise under the Workmen’s Compensation Act of the State of Kansas, or under any other statute or common law for damages, loss, suffering, disfigurement, injury or injuries which heretofore have been or which hereafter may be sustained by me in consequence of an accident which occurred to me on or about the date and hour written. I hereby acknowledge this payment as being the final payment of compensation due me on account of injury partially described above.”
His employment continued for less than one year. He sued under the compensation act, alleging permanent partial disability. The defendant, in its answer, set up the release. To the answer the plaintiff replied as follows:
“That on or about the day he returned to work at defendant’s plant, the defendant, through its employees presented to him a paper for signature which they represented was a receipt for that part of his wages due him for the time which he had lost from work on account of his injuries. Plaintiff alleges that he is an uneducated man and barely able to sign his name, that he never progressed beyond the-grade in the common schools. That he did not read or attempt to read the instrument which was submitted to him, but that he asked the foreman whether or not this covered his claim for permanent injuries, and that the foreman assured him it did not, but was simply a receipt for his wages for lost time and temporary disability; and that settlement for his permanent injuries could not be made until later, when they were more definitely ascertained. Plaintiff alleges that relying on said assurance he signed said receipt. That if said receipt by its terms purported to be a release to the defendant from liability for plaintiff’s permanent injuries then said receipt was obtained by means of fraud and deceit on the part of the defendant’s agents as above set forth. That the sum named in the copy of release incorporated in defendant’s amended answer is manifestly inadequate to cover plaintiff’s permanent disability, and that it is clearly nothing more than settlement for plaintiff’s lost time.”
There was evidence which showed that, as a result of the injury, the spread of the hand, or the measurement of the extension, was limited — that from the little finger tip to the thumb there was two inches less spread on the injured (right hand) than on the left hand; that the grip of his right hand is one-fourth as much as in the left; that he was unable to fully extend the fingers; that there was a .limitation of perhaps 15 per cent of the extension of the fingers; that there was no way of remedying such condition as found in the hand by an operation or treatment; that it was a permanent injury. Several physicians testified that there was permanent partial injury to the hand. Dr. J. E. Foltz, testifying for the defendant, said:
“I have not seen him lately but he is bound to have some permanent injury. If you don’t manipulate the fingers in an injury of that kind when you have pus and an inflamed condition, they are always stiff, in any joint any place, and you get a limitation of motion, it ceases to be sore or painful. ... I don’t think he will ever have absolutely the full use of his hand and fingers now.”
The defendant introduced testimony to show that the plaintiff did not obey the instructions of the physicians, and did not take the proper precautions, nor exercise the care that might have effected a cure. These disputed matters were resolved by the jury in favor of the plaintiff. The jury returned a general verdict for the plaintiff for $1,276.66, less $59.63 (the amount of the release) and returned answers to the special questions as follows:
“Q. No. 1. State whether you find that the plaintiff is permanently partially disabled. A. Yes.
“Q. 3. State whether plaintiff’s injury is apparent by objective examination; that is by looking at his hand. A. Yes.
“Q. 4. State whether or not it amounts to the entire loss of use of his hand.. A. No.
“Q. 5. State what you .find to have been the average weekly wages of workmen who had been employed by the defendant company for as much as a year previous to plaintiff’s injury in work the same grade employed at the same work or similar work. A. 55 cents per hour.
“Q. 6. State whether or not you find the defendant’s employees misrepresented the nature of the release to plaintiff at the time he signed it. A. Partially by a failure on the part of Otto Stevens to read and explain in full the wording of the receipt.signed by plaintiff.
“Q. 7. State whether or not you find that the plaintiff and defendant were mutually mistaken as to the full nature and extent of plaintiff’s injury at the time the release was signed. A. Yes.”
The court sustained a motion of plaintiff for judgment on the special findings in the sum of $2,430.37.
The defendant complains of an instruction with reference to the burden of proof in connection with the release. The defendant pleaded the release as one of its defenses. The plaintiff’s reply put the release in issue. The court instructed the jury that the burden of proof was on the plaintiff to prove his case and on the defendant to prove its defenses. In other instructions the court quite clearly advised the jury with reference to the validity of the release, and under what circumstances it could be set aside. However, it appears that on the trial the defendant made no objection to the instructions as given, nor any request for special instructions. Doubtless the court would have instructed the jury that the burden was on the plaintiff to prove the allegations of his reply had attention been directed to it. When a party desires special instructions to be given to the jury, such instructions should be reduced to writing, numbered, etc., and delivered to the court. (Gen. Stat. § 7185.) It has frequently been held that where the general charge of the court fairly presents the case to the jury, a party who desires an instruction upon a particular question should request it and cannot predicate error upon the omission if he has not done so. (Hamilton v. Railway Co., 95 Kan. 353, 147 Pac. 1126; Murphy v. Gas & Oil Co., 96 Kan. 321, 150 Pac. 581, and cases cited; Warders v. Railroad Co., 105 Kan. 4, 181 Pac. 599; 3 C. J. 850, 855.) It is doubtful if any prejudice resulted because of the instruction as given or the failure of the court to give an additional instruction on the burden of proof. Under the circumstances, a retrial should not be required for that reason. The defendant complains of the action of the trial court in sustaining plaintiff’s motion for judgment on the special findings. The plaintiff’s injury did not come under the specific provisions of the schedule, and hence falls under clause 19 of section 3 of the Laws of 1917. The plaintiff offered to accept the minimum of $6.00 per week, and the final judgment of the court of $2,430 was figured on that basis. The jury having found the essential facts, from ample evidence, it was proper for the court to apply thereto the measure of recovery as fixed by the compensation act. (Laws of 1917, ch. 226.) See, also, Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861; Chance v. Coal & Mining Co., 108 Kan. 121, 193 Pac. 889; Duncan v. Packing Box Co., 110 Kan. 494, 204 Pac. 543; Emry v. Cripes, 110 Kan. 693, 205 Pac. 598; Cooper v. Construction Co., 111 Kan. 391, 207 Kan. 798; Burchett v. Manufacturing Co., 114 Kan. 138, 217 Pac. 284.)
We have considered other objections but find nothing to warrant a reversal. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action arose out of an order of the public utilities commission directing the plaintiff railway company and the cross defendant telegraph company to institute some greatly needed improvements in the telegraph service furnished by them at Oberlin, Kan.
Oberlin is the county seat of Decatur county. According to the statistics of the state board of agriculture the town has about 1,200 inhabitants, the county has some 8,000 population, chiefly devoted to agriculture and the production of live stock; the county has an assessed valuation of $18,000,000; and the value of its crops and animals sold for slaughter in 1919 was $8,750,000; in 1920, it was $8,-330,000. The city of Oberlin is situated near the center of the county and is at the end of a branch line of the Chicago, Burlington & Quincy Railroad Company and connects with one of the main lines of that company at Republican, Neb. The only other railway line in Decatur county is that of the Chicago, Rock Island & Pacific which crosses the county from east to west along its southern border. Dresden, a village on the Rock Island, is situated about 20 miles south of Oberlin. The county is poorly served by mutual telephone lines.
At Oberlin such telegraph service as there is, is furnished through a joint and contractual arrangement between the plaintiff herein, the Chicago, Burlington & Quincy Railroad Company, and the cross defendant, the Western Union Telegraph Company. The railway company owns the wires; the telegraph batteries, the telegraph office in the railway depot; and the railway’s station agent is the telegraph operator. Telegraph messages are received by him and sent over the railway wires to McCook, Neb., where they are forwarded over Western Union wires to all parts of the country including Kansas. The earnings of this telegraphic traffic are divided between the railway company and the telegraph company on terms agreeable to them.
At the hearing before the public utilities commission it was clearly shown that the telegraph service furnished by the plaintiff and cross defendant to the public in Oberlin and Decatur county was inefficient, slow, and altogether unsatisfactory, that letters by United States mail from Kansas City, Topeka, Omaha and elsewhere, 300 miles or 400 miles away, were usually delivered in Oberlin before telegrams from the same points and forwarded at the same time. Oberlin citizens who had business affairs in these cities and who were accustomed to telegraph to their homes in Oberlin as to the time of their return by railroad had repeatedly reached their homes in time for a night’s sleep and had gotten to their places of business next day before the arrival of these telegrams. One witness, the vice president of a national bank in Oberlin, testified:
“The things I am objecting to is the fact that many times a message sent from away from here is not transmitted to my office. As much as three daj'S have intervened between the sending and delivery of a message. On numerous occasions messages sent from . . . Kansas City, or from the Western Union office in Kansas City and Topeka, advising my office the date of my return, and to send the car for me at some point, I would be in on a certain train, possibly Saturday, I have been compelled to wake up «the garage man to get a car and drive to Oberlin. Monday morning I would go down to my desk and during the day, Mr. Howard, the operator, would call up and 'say message for Benton Investment Company, and I would take my message, my own name was signed to it. It has happened on numerous occasions, and illustrates the kind of service we have.”
Another witness, a banker, testified:
“On a number of occasions I have sent telegrams to the station at nine o’clock a. m., our time, eight o’clock central time, and the boy in returning reported there was nobody there he could file the telegram with at eight o’clock central time. . . . Agent would say, T was out checking over cars and getting out freight, and the boy is up town for something that we have got to have, and I am out checking freight cars, and the station is locked.’ If it were open at nine o’clock for the bank it would be all right, because that is our opening time. At 11:15 a.m., mountain time, train comes in. We present ourselves there for the purpose of sending messages. Impossible to get anybody to take them for filing purposes for the reason that the train was then on the track or just coming in. Immediately following the arrival of the train the express has to be gotten out, and he cannot bother with a message. Then by the time he is ready to take 3rour message, the door to the station is sometimes locked. The agent tells me he is out with the express. I have gone down to the station at six o’clock a dozen times and the door was locked and during the noon hour. Noon hour for the agent, -and nobody in there keeping the office open. Not our lunch hour. Helper was not there, nor anybody else. I have been down to the station twenty minutes of five, his time, ten minutes after his train had gone and nobody there. Impossible to file a message or anything else. I have complained to him and he had excuses in every case. He was so busy checking freight cars or working up his books that he could not do it. He has always been courteous, no trouble from that standpoint, but he is so busy that he cannot get his book work up and express checked and freight cars tagged, and attend to these telegrams at the same time. If we had efficient service while we had it, a lot of our complaint would be relieved; that is, if when we send a telegram it got right out and we got our answer, part of the complaint would be relieved. If the office were actually open during the hours it is supposed to be, that would help some. ... I know it is practically impossible under ordinary circumstances to send a telegram between nine and twelve, and between two and four-thirty except just at times. We have sent quite a lot of telegrams by the way of Dresden, and are at the present time, but are a little bit fearful, because once or twice wo addressed a telegram that way, and the reply which came through was addressed to Dresden. I don’t live there and the agent there didn’t know who it was, and it laid there and I never received it. ... We have had a great deal of trouble in the banking business. The fact is that when we send a message we want to get a reply. Sometimes it involves a transfer of money and we want to get a reply that we can use. We want it delivered, and by asking for delivery we get a delivery; sometimes we do not unless we ask for it. Have tried to send messages through Dresden, and answers came back through Dresden and were not delivered. We would not have anything to file except it came by mail. We might get a message in'the course of a week. We are grasping for anything that will give us service on messages. Last week a gentleman came into the bank and asked us to wire for money for him. He came in at nine o’clock, said he had to have money, and had broken his car. We telegraphed at nine o’clock. No answer at four-thirty, nor at six o’clock. He went to McCook and the next day about eleven o’clock we got the answer to the telegram we had sent the previous morning at nine o’clock. We telephoned him at'McCook and he came back to get his money. . . . A man in Denver, Colorado, a customer of our bank, prepared a sight draft through the Drovers National Bank of Denver on a car of horses, and wired us' he would be here to cover his sight draft, and if it was presented to hold for the shipment of the horses. . . ■. The sight draft was here from the bank before we got the message, and the man also. He came by way of Dresden, got here for breakfast. We opened the mail and there was his sight draft.”
The people of Oberlin and Decatur county generally use central time, while the railway company operates its station, telegraph office, and the branch railway, by mountain time, which adds to and aggravates the public’s just dissatisfaction with the otherwise careless and inefficient service portrayed by the testimony just quoted. Other business men gave similar testimony, showing how their business affairs were hampered by the poor service furnished by plaintiff, how they had formerly subscribed to the Commercial News Dispatch service furnished by the railway company and the telegraph company but had abandoned it because its delivery was too slow for practical use. The witnesses also showed the expensive devices they had to use to get their telegrams out over mutual telephone lines to the telegraph service on the Rock Island line on the south side of the county.
The plaintiff made practically no showing to counteract the evidence which tended to prove the inefficient character of the telegraph service furnished at Oberlin. All it did do was to show that by some order of the interstate commerce commission the railway service at Oberlin should be operated on‘mountain time, and that through negotiations with some labor union, having the approval of the federal railroad labor board, the telegraph operator could not, without additional expense, be kept on duty for the extra hour or two which it would require to give adequate and efficient telegraph service to the people of Oberlin and thereabout in Decatur county. But it was shown, however, that the just grounds of complaint' at the inefficient telegraph service referred £o interstate telegraph service, to the slow and unsatisfactory receipt, dispatch and delivery of telegrams to and from Denver, Kansas City and Omaha, and to distant places in Kansas, and that all telegrams had to be routed through McCook, Neb., and that the purely intrastate telegraph business was altogether negligible — only six telegrams, earning $2.50, in the whole year preceding the hearing. This trifling minimum of intrastate business may have been caused in part, perhaps, by the wretched character of the service furnished by the plaintiff. For local points not too distant from Oberlin, even the poor service furnished by the rural telephone lines of northwest Kansas was superior to the telegraph service furnished by plaintiff, so the public patronized them or used the United States mail rather than use plaintiff’s telegraph service. However, the intrastate telegraph business at Oberlin would necessarily be inconsequential even if efficient service were given by plaintiff since defendant’s railway and telegraph lines in Kansas running out of Oberlin are short and connect with plaintiff’s trunk lines in Nebraska some 50 miles northeast.
After a full hearing the Public Utilities Commission made the following findings and order:
“The commission further finds that there is a contract relationship between the Western Union Telegraph Company and the Chicago, Burlington & Quincy Railroad Company, by the terms of which the Western Union Telegraph Company furnishes certain facilities to the railroad company by means of which the railroad company is able to operate its trains, and the railroad company furnishes offices, light and heat at certain of the stations on its line of railroad and that as a result of this contractual relationship the railroad company and the telegraph company are jointly engaged in the furnishing of commercial telegraph service at- the city of Oberlin, Decatur county, Kansas, and said telegraph service is furnished by means of the contractual relationship which exists between the railroad company and the telegraph company, and said joint 'enterprise is the only means by which the public at Oberlin, Kansas, would be enabled to have any telegraph service whatever; and said Western Union Telegraph Company and Chicago, Burlington & Quincy Railroad -Company by their joint enterprise as set out herein, have jointly held themselves out to the public as being willing to receive and transmit telegraph messages to any part of the United States and have taken upon themselves the burden and made their property subject to a public use as set out herein.
“The commission further finds that at the present time, the Chicago, Burlington & Quincy Railroad Compaq is operated upon mountain time, while the public at Oberlin, Decatur county, Kansas, conduct their business in accordance with central time and on account of this fact, the telegraph offices at this station is closed during the hour of one to two, central time, which is the time of day when the telegraph service at this station should be available to the public !at Oberlin, Kansas.
“The commission further.finds that the telegraph office at Oberlin, Kansas, opens at 9 o’clock a. m., central time, and closes at 6 p. m., central time.
“The commission further finds that the telegraph service being furnished at this time by the Western Union Telegraph Company and the Chicago, Burlington & Quincy Railroad Company at Oberlin, Kansas, is unreasonably inefficient and insufficient.
“It is therefore by the commission ordered: That effective thirty (30) days from the date of this order, the said Western Union Telegraph Company and Chicago, Burlington <& Quincy Railroad Company, shall render commercial telegraph service to the public at Oberlin, Decatur county, Kansas, as follows: Said telegraph office shall be open during week days for the receipt and transmission of messages from 8 a. m., central time, to 12 noon, central time, and from 1 p. m., central time to 6 p. m., central time. During the hours above named, continuous efficient and sufficient service shall be rendered at all times.
“It is further ordered: That said telegraph office shall be open for receipt and transmission of messages for one hour during the forenoon on Sunday and for one hour during the afternoon on Sunday.”
The railway company applied to the district court for an injunction to restrain the public utilities commission from enforcing the order. Issues were joined, testimonj^ introduced for plaintiff and for defendants. The evidence was substantially the same as that heard by the commission. The injunction was denied; -the plaintiff and the telegraph company were commanded to put the order of the commission into effect; hence this appeal.
The railway company makes the chief complaint against the judgment, the Western Union merely trailing but agreeing in effect with the principal contentions of the railway company. These will be noted in the order of their importance.
The railway company first argues that it has no corporate duty to give telegraph service at Oberlin, that under its corporate character granted by the state of its domicile, Illinois, and under its corporate license in Kansas, it has no grant of power to engage in telegraph service. If the state of Illinois or the state of Kansas has any grievance against the railway company for the usurpation of corporate powers not within the scope of its charter, that may be the subject of another lawsuit. The railway company through its contractual arrangement with the telegraph company does now give a certain kind of commercial telegraph service in Oberlin, and this lawsuit is only concerned with the question whether it should be required to do a better job of it, not whether the railway company should be required to undertake something it does not now pretend to do. It pretends to receive and dispatch commercial telegraph messages offered by the public for a few hours in the day, and to accept pay therefor. In a slipshod fashion it has done this for years. The public, in this lawsuit, has no concern with the contractual arrangement between the railway and the Western Union, nor with their arrangement for the use of each other’s facilities and employees, nor with their disposition of the telegraph earnings. The plaintiff railway company is giving a poor, inefficient, and unsatisfactory service at Oberlin. It had no right to undertake that business unless it intended in good faith to do a reasonably good job of it. Having assumed the power, it must exercise it in a satisfactory manner. Having taken up the task of giving telegraph service and having exercised the power of doing so, how absurd it is for it to resist a reasonable demand to exercise that power efficiently and to discharge that duty with reasonable energy and satisfaction to its patrons: In The State, ex rel., v. Telephone Co., 112 Kan. 701, 212 Pac. 902, the question of lack of power to do a public telephone business for want of a license was raised as an excuse for abandoning such business, but this court said:
“But it is earnestly urged for defendants that the Ransom company and the owners of the Barber line north of Ransom never applied for and never received a certificate of convenience and authority from the public utilities commission to transact a public utility business, as prescribed by section 31 of the public utilities act, General Statutes 1915, section 8359. The plaintiff concedes this fact, but the long-established public service to which the defendants’ devoted their property, without complaint by the state, estops them to invoke such a defense. Indeed the state’s present demand for restoration of this service is equivalent to an informal grant of permission to continue such business. For several years the defendants permitted their property to be devoted to a public use, and it is fundamental that such property is subject to governmental regulation. As said Chief Justice Waite, in Munn v. Illinois, 94 U. S. 113, 24 Law Ed. 77, 87:
“ ‘They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should not have clothed the public with an interest in their concerns.’ ” (p. 703.)
And so here, this railway company has for some years at Oberlin, and doubtless elsewhere at many stations on its line, undertaken in connection with the Western Union or some other telegraph company, to supply certain facilities and perform certain duties in furnishing the public with commercial telegraph service, and its plea of ultra vires must therefore be disregarded.
It is urged that the order of the public utilities commission interferes with the railway company’s duty to conform to the acts of congress (Act of Mar. 19, 1918, Act of Aug. 20, 1919, 41 U. S. Stat. at L. 280) and the order of the interstate commerce commission (51 I. C. C. 273), which requires the Oberlin branch railway to be operated on mountain time. This court fails to discern any such interference. The only passenger train on this branch arrives at Oberlin about an hour before noon and leaves about midafternoon. The arrival and departure of freight trains is not shown, but it nowhere appears that to open the telegraph office for public business at 8 a. m., central time, and to keep it open, except for an hour at midday, until 6 p. m., central time, and to furnish a couple of hours’ service on Sunday, would interfere with the operation of the railway trains on mountain time in the slightest degree. If by reason of a contract with a labor union or otherwise, the one telegraph operator at Oberlin could not be kept on duty for so many hours per day, without extra compensation, the public convenience cannot be interfered with for any such excuse. The public convenience is paramount. The public was not a party to that contract. It was the duty of the railway company and of the labor union to take into account the reasonable needs of the public when that labor contract was made. • At all events the labor union contract would not prevent the payment of extra wages for extra time nor prevent the employment of an additional operator if the reasonable demands of the public for adequate telegraph service could not be otherwise met.
Plaintiff also hints, but only hints, at two other propositions in its brief, (a) that the order is arbitrary and unreasonable, and (6) that it constitutes a taking of its property without just compensation. We fail to see where these two points are seriously pressed in plaintiff’s brief; and indeed there is no merit in either of them. There is no want of income at Oberlin to meet the expense of the service required, and it was shown conclusively that the inadequate service had depleted the telegraph earnings to a very considerable degree. Moreover, a public service corporation is entitled to no profit until it has met the reasonable needs of the public for service. (Atlantic Coast Line v. N. Car. Corp. Com’n, 206 U. S. 1, 51 Law Ed. 933; Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262, 54 Law Ed. 472.) The order of the public utilities commission was eminently reasonable, and compliance therewith should be cheerfully given by both corporations. It seems to us that it is only because the Chicago, Burlington & .Quincy Railroad is a relatively inconsequential concern in Kansas that so plain and simple a case for public relief, for needed improvement in public service, could ever rise to the dignity of a lawsuit in this court. It can hardly be conceived that one of the great railroad systems of this state, like the Santa Fe or the Union Pacific, would let its telegraph service .at a county seat like Oberlin deteriorate to the degree shown in this record; and it may well be doubted whether in Nebraska where this plaintiff is a railway of some consequence it conducts its telegraph service at any county seat in such a slovenly, negligent fashion as it does at Oberlin, although, indeed, one of its witnesses ventured the opinion that at one place in Nebraska, Imperial, its service was no better than it is in Oberlin.
But we now come, however, to plaintiff’s main contention — that the order of the public utilities commission constitutes a regulation of interstate commerce. Reluctantly, if we correctly understand the decisions of the United States supreme court, we will have to concede that this last point is unassailable. The evidence all tended to show that the wretched telegraph service into and out of Oberlin was of an interstate character. All the complaints concerning the service were directed at the delays incident to getting telegrams forwarded which had to be relayed through McCook, Neb., to points in other states; and the exasperating slowness of deliveries of telegrams in Oberlin were all concerning messages which had been sent from places like Denver, Omaha, and Kansas City, Mo. The telegrams to and from Oberlin to points in Kansas had virtually all to be forwarded through McCook, Neb. Even this latter sort of service is undeniably interstate in character under controlling decisions of the federal supreme court. (Hanley v. Kansas City S. R. Co., 187 U. S. 617, 47 Law Ed. 333.)
In Western Union Tel. Co. v. Speight, 254 U. S. 17, 65 Law Ed. 104, the case related to damages for mistake in the transmission of a telegram from Greenville, N. C., to Rosemary, in the same state, which telegram in the ordinary course of business had to pass over the telegraph company’s wires through Virginia for part of the distance. The supreme court of North Carolina took the old and once recognized view that since both termini were in North Carolina the telegram was intrastate in character, but the federal supreme court said:
“The transmission of a message through two states is interstate commerce as a matter of fact. Hanley v. Kansas City Southern R. Co., 187 U. S. 617, 47 L. Ed. 333, 23 Sup. Ct. Rep. 214. The fact must be tested by the actual transaction. Kirmyer v. Kansas, 236 U. S. 568, 572, 59 L. Ed. 721, 724, 35 Sup. Ct. Rep. 419.
“As the line was arranged and had been arranged for many years, ever since Roanoke Rapids had been an independent office, Richmond [Virginia] was the relay point from Greenville to the latter place. ... As things .were, the message was sent in the quickest way. The court below did not rely primarily upon the finding of the jury as to the purpose of the arrangement, but held that when, as here, the termini were in the same state, the business was intrastate unless it was necessary to cross the territory of another state in order to reach the final point. This, as we have said, is not the law.” (p. 105.)
In Western Union Tel. Co. v. Foster, 247 U. S. 105, 62 Law Ed. 1006, 1 A. L. R. 1278, the validity of an order of the Massachusetts public service commission requiring certain telegraph companies to desist from discrimination against a certain broker in their delivery of market quotations came under review. The federal supreme court held that the business was interstate and free from state regulation, and said:
“If the transmission of the quotations is interstate commerce, the order in question cannot be sustained. It is not like the requirement of some incidental conveniences that can be afforded without seriously impeding the interstate work. It is an attempt to affect in its very vitals the character of a business genetically withdrawn from state control — to change the criteria by which customers are to be determined and so to change the business.” (p. 114.)
See, also: Leibengood v. Railway Co., 83 Kan. 25, 109 Pac. 988, and note in 28 L. R. A., n. s., 985 et seq.; Kirby v. Railroad Co., 94 Kan. 485, 489, 490, 146 Pac. 1183.
And so here, it is useless to cite the Madison Branch case, 76 Kan. 467, 92 Pac. 606, 216 U. S. 262, 54 Law Ed. 472, because there was in fact a very substantial intrastate business to be regulated and which required regulation, and the fact that the just demands of the state for adequate intrastate railway service on the Madison Branch incidentally affected and regulated interstate commerce did not invalidate the order of the state commission. Nor do the decisions relating to the state’s right to stop interstate trains to ade quately supply the intrastate demands for reasonable local service, and thus incidentally affect and regulate interstate commerce reach the case before us. (See discussion and excerpt from Chi. B. & Q. Ry. v. Wisconsin R. R. Com., 237 Ú. S. 220, in The State, ex rel, v. Railway Co., 101 Kan. 660, 665, 666, 168 Pac. 838; St. Louis-San Francisco R. Co. v. Public Service Com., Law Ed. advance sheets, No. 12, p. 425, decided Mar. 19, 1923.)
In this case, if it were shown that there was any substantial intrastate telegraph service at Oberlin to be regulated, or a real need or reasonable demand for that service, the state, through its public utilities commission, could order such service to be supplied and the order in question would be perfectly reasonable and just, for there is neither confiscation nor other injustice or oppression in its terms so far as the record discloses; and the fact that such an order would incidentally affect and to some extent regulate the interstate telegraph business would not invalidate the order nor stay the hand of the district court or of this court to enforce it. But there is no intrastate telegraph business to speak of at Oberlin — merely six telegrams which realized earnings, of $2.50 in a whole year, and there was no complaint concerning the local service. What the people of Oberlin and Decatur county want and are entitled to is prompt .and satisfactory telegraphic service over the railway and telegraph wires-interlacing the great business cities of'the country and all intermediate points. The order of the commission was intended to secure that service, on evidence pertinent thereto. That order was primarily, not secondarily or incidentally, a regulation of interstate commerce. As said by the federal supreme court in Western Union Tel. Co. v. Foster, supra, the order “was an attempt to affect in its very vitals the character of a business generically withdrawn from state control.”
It follows that the public at Oberlin and Decatur county must seek elsewhere for that improvement in the telegraph service to which they are justly entitled, and the judgment of the district court _ denying the plaintiff’s application for an injunction must be reversed and the cause remanded with instructions that it is granted.
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The opinion of the court was delivered by
Hopkins, J.:
The action was for rescission of a contract to convey real estate. Plaintiff prevailed, and the defendants appeal. The history of the case is told by the trial court’s findings of fact, which are substantially as follows:
1. The plaintiff, Thomas Brooks, was a farmer living near Manhattan, Kan. The defendants, P. J. Weik and P. F. Dodson, were copartners engaged in the real-estate business in Manhattan.
2. In the latter part of the summer or early fall of 1918, the plaintiff listed Lots 349 and 350 in Ward One in the city of Manhattan with the defendants for sale or exchange at the. price of $50,000, agreeing to pay the defendants the usual and customary commission for their services as agents in the event that a sale or exchange was effected through the efforts of the defendants.
3. .The usual and customary commission of real-estate agents in and about the city of Manhattan for services performed as agents in the sale or exchange of real estate is 2% per cent of the sale price of the property disposed of.
4. There is located on said lots a two-story brick building known as the Barber Building, which was of the reasonable value of $50,000. The building was at all times, since December, 1919, occupied by various tenants.
5. That, pursuant to the employment by plaintiff of the defendants, as his agents in the sale or exchange of said lots, plaintiff had numerous conversations with the defendants relative to prospective purchases and exchanges for said building. That, in the fall of 1918, pursuant to the employment of the defendant, Weik proposed to the plaintiff that he trade said building for a farm owned by one Nicholson. That thereafter said defendant submitted to the plaintiff a proposition of trading said Barber building for a ranch in the state of Nebraska. That no sale or exchange resulted from such negotiations.
6. That plaintiff and defendants had been acquainted for many years prior to November, 1919, and during said time plaintiff had employed the defendants to act as his agents in effecting sales, as well as the disposition for the plaintiff of real estate on several occasions prior to the listing of the real estate and the employment of the defendants herein. That the plaintiff was a close personal friend of the defendant Weik and placed particular confidence ■and trust in said Weik and relied to a greater or lesser extent upon the judgment of said Weik in negotiations leading up to and culminating in the sales and exchange of real estate theretofore listed with said defendants for sale or exchange, and placed particular confidence and trust in said Weik and both defendants, and relied upon their judgment, in the negotiations leading up to, and culminating in the exchange of the Barber building for certain'oil leases covering land located in the state of Texas, and hereinafter mentioned.
7. That after plaintiff employed the defendants as his agents in the fall of 1918, to effect a sale or exchange of the Barber building for the plaintiff, that plaintiff never at any time discharged, said agents, nor did the defendants ever cancel such listing or withdraw as agents of the plaintiff.
8. That, in the month of November, 1919, the defendant herein proposed • to plaintiff that he, the plaintiff, should trade said Barber building for a large block of oil and gas leases in the state of Texas, and representing'to plaintiff that one O. M. Connet was then and there the owner of 30,000 acres of oil leases covering lands located in the counties of Mason and Llano, in the state of Texas. That plaintiff and defendants had numerous conversations during the months of November and December, 1919, relative to the proposed trade, and had numerous conversations with O. M. Connet, during all of which time the plaintiff understood and believed that the defendants were acting as his agents. That the plaintiff was wholly unacquainted with the location of said oil and gas leases and the nature and extent of development, if any, near said leases, and was wholly unacquainted with the value of the same. That plaintiff, during the negotiations, expressed a desire to go to the state of Texas for the purpose of making an investigation of said leases, but was advised by the defendants herein that said O. M. Connet had another prospective purchaser for said leases, and would not wait for the plaintiff to make a trip to Texas, and represented to plaintiff that plaintiff could rely upon the statements and representations made concerning said leases, and that plaintiff would find everything to be as represented.
9. That the defendants and O. M. Connet represented fraudulently to the plaintiff that said 30,000 acres of leases were in a solid block, approximately square, that there was a well drilling within four or five miles of these leases, and that said leases were of the actual value of $1.50 or $2 per acre.
10. That defendants represented to plaintiff that they had secured a proposition from O. M. Connet to the effect that said Connet would trade the plaintiff said 30,000 acres of leases for the Barber building and $10,000 in cash. That thereupon, the plaintiff becoming interested in such sale and exchange of his real estate for the Texas oil leases, instructed and advised the defendants, as his agents, to confer with said O. M. Connet and secure, if possible, a better trade for the plaintiff, and also instructed the defendants to offer said O. M. Connet a counter-proposition, of the Barber building and $5,000- for the leases. That after plaintiff had made such offer of the exchange of his property for the oil leases, the defendants reported back to the plaintiff that said O. M. Connet would not accept the counter-proposition, made by plaintiff; whereupon plaintiff instructed and advised the defendants as his agents to raise the offer to $7,500 cash difference. That thereafter, defendants advised plaintiff that they had so advised the said O. M. Connet, and said Connet would not take less than $10,000 in addition to the Barber building for his said leases. That the negotiations herein mentioned covered a period of two or three weeks, and finally resulted in the execution of. a written contract, dated December 24, 1919', between the plaintiff as one of the parties, and the said O. M. Connet as the other party, in which contract plaintiff agreed to convey said Barber building and execute his promissory notes aggregating $10,000 to the said O. M. Connet, in exchange for 30,000 acres of oil and gas leases covering lands located in Mason and Llano counties, Texas. That immediately upon the signing and execution of said written contract, the plaintiff made, executed and delivered his promissory notes, payable to the order of said O. M. Connet, two in the sum of $2,500 each, one in the sum of $5,000.
11. That the Barber building was encumbered by a mortgage indebtedness in the aggregate amount of $30,000.
• 12. That on the 18th day of January, 1920, the defendant, pursuant to the agreement made and entered into by and between the plaintiff and said O. M. Connet, delivered to plaintiff oil and gas leases covering something over 30,000 acres of land in Mason and Llano counties, Texas, and on January 30, I. 920, plaintiff and his wife, Ida R. Brooks, made, executed and delivered to O. M. Connet, lots 349 and 350 in Ward One, in the city of Manhattan, Riley county, Kansas, for an express consideration of $50,000, subject to mortgage liens aggregating $30,000.
13. That on or about the first week in January, 1920, the defendant, P. J. Weik, sold and rediscounted the $5,000 note of plaintiff, made, executed and delivered to O. M. Connet, on the 24th day of December, 1919, to the Farmers State Bank of Clay Center, Kan., and received in exchange therefor United States Liberty Loan Bonds of the par value of $5,000 and on or about the same date, said P. J. Weik sold and rediscounted one of the $2,500 notes made, executed and delivered by the plaintiff on the 24th day of December, 1919, to O. M. Connet, to the Leonardville State Bank of Leonardville, Kan., receiving therefor the sum of $2,400. That in the latter part of February, 1920, the defendant, P. J. Weik, sold and rediscounted the other $2,500 note made, executed and delivered by the plaintiff to O. M. Connet on the 24th day of December, 1919, to one Bert Walters, receiving therefor the sum of $2,400; all of which said bonds and moneys received for said notes were kept and retained by said defendants and O. M. Connet.
14. That in the months of November and December, 1919, and on the 24th day of December, 1919, the said Connet was not, in fact, the owner of said 30,000 acres of oil and gas leases, as represented by said defendants and said Connet, and that early in the month of January, 1920, and after the execution of the contract between plaintiff and Connet, thfe said Connet went to San Antonio, Texas, pursuant to the plans of the defendants and said Connet for the purpose .of securing the leases, covered by said contract with the plaintiff, and that on January 6, 1920, contracted for oil and gas leases and assignments thereto in blank; covering about 30,320 acres of land in Mason and Llano counties, Texas; that the said Connet paid, as part payment on said leases $1,000 which the said Connet received from the defendant Weik by telegraph. That the said Connet directed H. J. McMullen, from whom he purchased said leases, to forward the said leases and assignments to the First State Bank of McFarland, Kan., with a sight draft attached for $5,888.92, with directions to deliver the leases to Connet or whomever he might direct on payment of the said draft in the sum of $5,888.92.
15. That the total purchase price of said 30,320 acres of oil and gas leases in Mason and Llano counties, Texas, was the sum of $6,888.92.
16. That P. J. Weik paid the draft attached to said leases with a draft drawn on the Union National Bank of Manhattan, in the sum of $5,888.92 and received the oil and gas leases and assignments thereof.
17. That at all times during the negotiations leading up to, and the final consummation of the sale and exchange .of plaintiff’s real estate and execution of the notes by the plaintiff for the 30,000 acres of oil and gas leases, that the-defendants Weik and Dobson, as well as O. M. Connet, concealed from the plaintiff the fact that they were securing said oil and gas leases at a consideration of $6,888.92 and concealed from the plaintiff that they, together with O. M. Connet, were financially interested in the subject matter of their agency and concealed from him the fact that they were trading such leases to him for his real and personal property. That said Connet, while profiting alone out of the proceeds of the sale of the $10,000 of notes executed and delivered to the said Connet, was not the real party in interest in the contract for the exchange of the real and personal property of the plaintiff for the oil and gas leases and was only used by the defendants as the ostensible purchaser of the Barber building for the purpose of concealing from the plaintiff the fact that the defendants were financially interested and profiting at the expense of their principal in the exchange of the real estate and notes for the oil and gas leases.
18. That the defendants, at the time of the execution of the contract between O. M. Connet and plaintiff, and subsequently at the time of the delivery of the leases and final consummation of the exchange of the property, were fully advised of the facts in connection with the oil and gas leases in the state of Texas, and their location and price, but failed to disclose such information to their principal, and the plaintiff was wholly unacquainted with such facts at said time, and that plaintiff did not discover the facts of the duplicity of his agents, the defendants herein, until the time hereinafter stated.
19. That while it is a fact that plaintiff conveyed to O. M. Connet the Barber building as hereinbefore stated, that the said O. M. Connet received and held title thereto, not as the real owner thereof, but in trust for the defendant, P. J. Weik, who was, in fact, the real party in interest.
20. That the notes executed by the plaintiff as above found in the principal sum of $10,000 were, at the time of their execution of the actual value of $10,000, and that since their execution the plaintiff has paid two of said notes in the principal sum of $7,500, and that the third note in the sum of $2,500, is now in the hands of an innocent holder for value.
21. That the oil and gas leases in Mason and Llano counties, Texas, which defendants and O. M. Connet traded to the plaintiff for his equity in the real estate above described and the $10,000 in notes, was of the reasonable market value, at the time of the consummation of said deal, of $6,888.92.
22. That for the purpose of deceiving the plaintiff into believing that O. M. Connet was the bona fide purchaser of the Barber building, and that defendants had no interest therein, the defendants caused the legal title to be vested in Connet until August-, 1920, upon which date Connet conveyed to one William N. Williams, who, thereafter, conveyed to one N. C. Sink, who, thereafter, conveyed to J. N. Dever, who, thereafter, on December 5, 1921, conveyed to the defendant P. J. Weik. That Connet, Williams, Sink and Dever, and each of them, held the title to said real estate for the defendant P. J. Weik. '
23. That the defendants at no time disclosed to plaintiff herein, but at all times concealed from plaintiff, the fact that O. M. Connet, Wm. N. Williams, N. C. Sink and J. M. Dever were not the real owners of said real estate, and that they held title thereto in trust for the defendant, P. J. Weik.
24. That the defendant, P. J. Weik, has derived all of the rents and profits from the Barker building since February, 1920, up to and including the month of September, 1922. That the rentals paid by said tenants of said building during said period of time and so derived by the’ said P. J. Weik, have amounted to the sum of $14,504.
■ 25. That from and after February, 1920, . . . the defendants collected rents from the Barber building, in excess of bills for up-keep, water, light, heat and repairs, together with principal and interest paid upon mortgages, that have been actually paid, the total sum of $1,107.14.
26. That the first knowledge that plaintiff acquired that defendants had acquired an interest in his real estate was on December 29, 1921 — the date of the deed from Dever to Weik, which knowledge was constructive only.
27. That after acquiring the Texas oil and gas leases, and up to the summer of 1921, plaintiff made various efforts to dispose of said oil and gas leases and entered'into various contracts to sell the same; but never, in fact, conveyed his title to said leases to any person or persons and has never received anything of value for said leases. That all of the efforts on the part of the plaintiff to dispose of said leases were made prior to the time that plaintiff discovered that his agents, the defendants herein, had, while acting as his agents, become financially interested in and profited by the sale and exchange of -said real estate and personal property for the oil and gas leases heretofore described. That said oil and gas leases, by the terms thereof, have long since expired and are now of no value whatsoever.
28. That the defendants, Weik and Dobson, and said O. M. Connet, in the purchase of said oil and gas leases, used $6,888.92 of the proceeds of the sale of plaintiff’s notes in the sum of $10,000. That defendants Weik and Dobson profited, as a result of the exchange of plaintiff’s real estate and $10,000 in notes, for the oil and gas leases in Mason and Llano counties, Texas, to the extent of the equity of the plaintiff in said Barber building, and the rentals thereof since the first day of February, 1920.
29. That P. J. Weik, defendant herein, now holds the record title to Lots 349.and 350 in Ward One in the city of Manhattan, Riley county, Kansas, and that no equity for or on behalf of an innocent third party or parties has attached thereto.
The court thereupon rendered judgment decreeing the plaintiff owner of the real estate and for the sum of $1,107.14,‘being the .amount, of rentals collected by defendants after allowing all offsets to which they were entitled.
It _is ably contended by the defendants that two inconsistent causes of action were stated in plaintiff’s'petition; that the trial court erred, first, in not requiring the plaintiff to elect upon which of the alleged causes of action he would proceed, and not requiring him to frame his petition on a single definite theory; second, that the plaintiff came into court seeking equity with unclean hands.
1. The code requires that the petition shall state the facts constituting the cause of action in ordinary and concise language and without repetition. (Civ. Code, § 92.)
In Stewart v. Baldertson, 10 Kan. 131, 145, it was said:
“The proposition that each and every separate and distinct fact which enters into and assists in constituting either a cause of action or a defense must have at least one separate and distinct statement has no exception in pleading. Facts cannot be classified and grouped together and then alleged in a group.”
In Grentner v. Fahrenschield, 64 Kan. 764, 68 Pac. 619, it was said:
“The plaintiff must frame his petition upon a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient.” (Syl. If 1.)
In the instant case the facts were alleged in detail, which necessarily required a petition of unusual length. It will be noted that in the Grentner case it was held that sufficient facts were not alleged to sustain any theory. That case was decided under the old theory of pleading which required definite tender of specific issues — a theory which no longer prevails, or, at least, has been materially modified. Ordinarily, it is enough fairly to inform the defendant what the suit is about, and even if inconsistencies appear, they are not fatal if, on any theory, the plaintiff states a cause of action. Whether or not the petition is technically good becomes less material after a full trial on the merits in which the subject of controversy has been thoroughly investigated. In the instant case the petition proceeds upon a single and definite theory: that the defendants were plaintiff’s agents in the sale of the Barber building and $10,000 of his notes for 30,000 acres of oil leases in Texas; that they occupied toward him a fiduciary relationship by reason of such agency; that they violated the confidence and trust reposed in them by misrepresenting to the plaintiff the location and value of the oil leases and by withholding from him the>price for which they obtained them; by conspiring with an ostensible purchaser (Connet) and by concealing from the plaintiff that defendants were, in fact, furnishing the money for the oil leases and trading them 'to plaintiff, their principal, thereby procuring their principal’s real and personal property without his knowledge or consent. For a rescission of the contract and setting aside of the deed of conveyance, for a recovery 'of the proceeds of plaintiff’s $10,000 in notes, and for an accounting of the rents and profits of plaintiff’s building during the period that it was in the possession of defendants, the petition stated one cause of action. The plaintiff was not dealing with the defendants as the purchasers of his property. Presumably they were acting for him. He was not dealing with them at arm’s length. The circumstances were different from the ordinary case where a sale occurs between a vendor and vendee. Here the sale was induced to an ostensible vendee who, as a matter of fact, took and held the property for the vendor’s agents. It was competent for the plaintiff to allege every scheme and fraudulent device used by defendants in their dereliction of duty toward him and the procuring of his property for themselves. (See, Hospital Co. v. Philippi, 82 Kan. 64, 107 Pac. 530; Bank v. Woodrum, 60 Kan. 34, 55 Pac. 330; Tire Co. v. Kirk, 102 Kan. 418, 170 Pac. 811; Railroad v. Powers, 14 Fed. 77, 2 C. J. 697.) In attempting to allege all of the facts constituting his cause of action, plaintiff perhaps unnecessarily repeated certain statements. These repetitions, however, cannot be said to have affected the substantial rights of the defendants, and the refusal of the trial court to sustain defendants’ motions or demurrer was not reversible error. (Civ. Code, § 141.)
2. The defendants insist that plaintiff came into court seeking equity with unclean hands; that he purchased the leases in question to sell at advanced prices and for promotion purposes, and because of such purposes, he is precluded from recovering his property from defendants; that he is barred by that principle of equity which requires a litigant, seeking equity, to come into court with clean hands. The defendants rely on the case of Primeau v. Granfield, 193 Fed. 911. There the parties to the suit were associated in a joint enterprise to sell worthless stock to the public. The action was based upon the unlawful agreement between them. The court held that the parties were engaged in a joint fraudulent undertaking. The court said (p. 916):
“The wrongdoing which will defeat a litigant must have connection with the matter in litigation. Misconduct in outside matters will not have such effect. . . . The real test in such a case as this is whether the plaintiff requires any aid from the fraudulent transactions to establish his demand. If he does he cannot recover. If he does not and the cause of action is unconnected with the fraudulent undertaking and is founded upon a collateral consideration he may recover”.
Here the trial court found that “The plaintiff made various ef forts to dispose of the oil and gas leases and entered into various contracts to sell them but never, in fact, conveyed his title to said leases to any person and never received anything of value for them.” The fact that plaintiff made efforts to sell the leases is no defense to this action. The subject matter of this suit has no relation to the attempts of the plaintiff to dispose of the leases. The plaintiff strenuously denies any inequitable conduct in his attempts to sell them, but even if his efforts in such regard were attended with bad conduct, such fact could not be urged by the defendants as a bar to his right of recovery here.
In 4 A. L. R. 65, is found an extensive note covering the topic under consideration. It is there said:
“The decisions are in accord in holding that it is not every wilful and reprehensible act that will preclude a litigant in a court of equity from obtaining the relief prayed, but such conduct, under the principle involved in this maxim, must bear an immediate relation to the subject-matter of the suit, and in some measure affect the equitable relations subsisting between the parties to the litigation and arising out of the transaction.” (See, also, Greer v. Payne, 4 Kan. App. 153, 162, Shaver v. Heller & M. Co., 108 Fed. 834, 65 L. R. A. 878, 48 C. C. A. 48, affirming 102 Fed. 882; Trice v. Comstock, 121 Fed. 620, 61 L. R. A. 176, 57 C. C. A. 646; Foster v. Winchester, 92 Ala. 497, 9 So. 83; Bradley Co. v. Bradley, 165 Cal. 237, 131 Pac. 750; Kirby v. Union P. R. Co., 51 Colo. 509, 119 Pac. 1042, Ann. Cas. 1913 B, 461; Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 25 L. R. A. 90, 42 Am. St. Rep. 159, 29 Atl. 303; Williams v. Beatty, 139 Mo. App. 175, 122 S. W. 323, 21 C. J. 187.)
In Talbot v. Independent Order of Owls, 136 C. C. A. 268, 270, 220 Fed. 660, the court said:
“Nor does the evidence which is found in this record upon which the defendants rely to defeat the plaintiffs, and to bring this suit under the ban of the principle, ‘He who comes into equity must come with clean hands,’ sustain that defense. That principle does not repel all sinners from the precincts of courts of equity, nor does it disqualify any plaintiff from obtaining full relief there who has not done iniquity in the very transaction concerning which he complains. The wrong which may be invoked to defeat him must have an immediate and necessary relation to the equity for the enforcement of which he prays.”
In Miller & Lux v. Enterprise, etc., Co., 142 Cal. 208, 100 Am. St. Rep. 115, 75 Pac. 770, it was said:
“The contention of respondents rests on certain maxims, as that ‘No one acquires a right of action from his own wrong,’ ‘Out of a base transaction a cause of action does not arise,’ ‘He who comes into equity must come with clean hands,’ etc. But these maxims have their limitations, and will not be allowed to work a great injustice and wrong when the alleged unlawful act is entirely unconnected with any transaction between the parties to the suit. Usually these maxims cannot be successfully invoked where the objectionable act in no way affects the equitable relations existing between the parties.” (p. 213.)
In Carr v. Craig, 138 Iowa, 526, 116 N. W. 720, it was said:
“The equitable rule that a plaintiff asking relief must come into equity with clean hands has reference only to the relations between the parties, and arising out of the transaction. ‘It does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern’.” (p. 532.)
The facts in this case abundantly support the judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
This is an appeal from a judgment awarding compensation to a workman injured in the service of the defendant telephone company.
The.plaintiff, a youth of seventeen years, was employed by the defendant. His ordinary duties were the charging of batteries in defendant’s telephone exchanges in the villages of Crawford county. On a few occasions he had been detailed to hang loose wires in an office and to assist a telephone line repair man. He resided at Pitts-burg, and in going to the villages nearby in the discharge of his duties he sometimes traveled on the interurban railway and sometimes rode with defendant’s linemen in an automobile. One morning in July, 1922, he was directed by his superior officer to go to Weir City to charge the batteries at the central exchange, and was told that a lineman was going to Weir City in defendant’s automobile and that plaintiff should ride with him. The lineman was making the journey to examine the telephone lines along the highway to locate some wire interference which was causing trouble in the telephone service. Plaintiff w&s directed by his superior officer to render assistance to the lineman. On this journey the lineman and plaintiff halted at intervals, and the lineman would climb a telephone pole and make a test connection with some central exchange. Finding the connection satisfactory, they would continue their journey to some point further on and repeat' the test. At one of such stops, the lineman made the test and finding the line free of trouble, he decided to make another test some distance away, and said to plaintiff: “You crank the car and turn it around and run it down and I will walk.” Plaintiff started to obey and in cranking the car, it “kicked back” and broke his arm.
Compensation was demanded and refused; action was begun; an arbitrator was appointed over defendant’s objections; findings and award allowed; and judgment was entered accordingly.
Defendant appeals, its main contention being that plaintiff’s accident and injury and defendant’s liability thereunder were not governed by the workmen’s compensation act.
Defendant begins its argument with an analysis of those features of the act which deal with, the appointment of an arbitrator and with the limited scope of the arbitrator’s functions except where other matters are referred to him by consent of the parties or by order of court. But it will shorten- our task, perhaps, to consider, first, whether the case was governed in any respect by the compensation act. The statute, in part, provides:
“This act shall apply only to employment ... on, in or about a railway, factory, mine or quarry, electric, building or engineering work, ...” Laws 1917, ch. 226, § 1.)
“ ‘Electrical work’ means any kind of work in or directly connected with the construction, installation, operation, alteration, removal, or repair of wires, cables, switchboards or apparatus used for the transmission of electrical current, or operation of telegraph or telephone lines.” (§ 2.)
Did not the plaintiff’s employment fall within this classification? His principal duties were the charging of telephone batteries, but occasionally he was detailed to assist linemen in their work. When assisting linemen, his usual task was to hand them their tools, help string wires, and tie wax-pots on a rope. On the day of his injury he was assisting the lineman in locating wire interference on the public highway. The automobile was being used to transport the plaintiff and the lineman in the discharge of their duties and to carry the necessary tools. The car had to be stopped and it had to be cranked and started again as they went from place to place along the highway making telephone tests. So it seems indisputable that when he broke, his arm in cranking the car, to start it on the next lap of the journey, plaintiff was in his master’s service, and that the accident arose out of and in the course of his employment.
But it is argued that he was not engaged in electrical work, wire repairing, or operating a telephone line, when the accident occurred —that he was merely cranking a Ford car, the hazard of which undertaking is the same in all walks of life, and not related in any way to the hazards of industrial accidents in the telephone business. The compensation act declares certain occupations to be hazardous and imposes a compensatory charge upon such business for injuries sustained by workmen engaged therein, with or without fault of employer or employee, where.-such injuries arise from the employment and because of it. The compensation thus allowed is not restricted to injuries which flow from the hazardous features of the employment, but to all injuries which are incidentally sustained in such employment, whether the injuries flow from some peculiar hazard of the business or not. Thus it was through no hazard peculiar to the business of a stockyard that a workman was injured by an electrical shock in passing through a door on the stockyard’s premises, but compensation was allowed. (White v. Stock Yards Co., 104 Kan. 90, 177 Pac. 522.) No hazard peculiar to the business of making boxes in a soap factory caused the injury to a young girl employee — she was hurt during the lunch hour while playing with other young workmates on a small truck, but compensation was awarded. (Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372.) An accident and consequent injury from starting a fire in a stove with kerosene is not one peculiar to the business of running a railway, but employment about a railway is properly classifiable as a hazardous business under the compensation act, and a railway station agent who was thus injured while lighting a fire was awarded compensation. (Benson v. Railway Co., 104 Kan. 198, 178 Pac. 747.) Further illustrations are given in Thompson v. Manufacturing Co., supra—
“A workman has been allowed to recover under the compensation act where he caused an explosion by lighting his pipe near a gasoline can in a tool house to which he had gone to eat his dinner, having violated no rule and not knowing of the presence of the vapor. (Haller v. Lansing, 195 Mich. 753.) In Dzikowska v. Superior Steel Co., 103 Atl. 351 [Pa.], the employee was permitted to recover where he set fire to his oily apron while lighting a cigarette; and in Whiting-Mead Commercial Co. v. Industrial Accident Co., 173 Pac. 1105 [Cal.], an employee’s injury, due to his setting fire in the same way to a turpentine-soaked bandage on his hand, was held to fall within this rule.” (p. 438.)
And so while cranking a Ford car by an employee of a telephone company is not a hazard peculiar to the telephone business, the telephone business is properly classifiable as a hazardous business, and is so classified and defined by the compensation act, and the relation of plaintiff and defendant was governed thereby.
But it is urged that the accident did not occur on, in or about defendant’s electric work or telephone business — not within the zone of danger, but happened on the public highway. What is the zone of danger of a telephone business? A telephone business is not like a factory or mine which has a circumscribed and definite situs; a telephone business radiates its wires far and wide along the public highways of a township, county or state. But its employees in the discharge of their duties string the wires, inspect them, and repair them on the public highways, and they may get hurt in so doing, and may m'eet with accidents incidental thereto, so the court has no misgiving in holding that as to telephone-line employees, the zone of danger includes every place, including highways, where their duties reasonably require them to go, and thus construed the plaintiff’s injury was sustained on, in and about premises occupied and used by the defendant in the pursuit of its business.
Another contention of defendant is that the district court had no power to appoint an arbitrator. But the statute is otherwise (Laws 1917, ch. 226, §1), and it has been repeatedly held that appointment of an arbitrator is proper on the written application of one of the parties even where the other party objects to or ignores such appointment. (Goodwin v. Packing Co., 104 Kan. 747, 180 Pac. 809; Roper v. Hammer, 106 Kan. 374, 378, 187 Pac. 858; Wilson & Co. v. Ward, 110 Kan. 177, 202 Pac. 862; Cramer v. Railways Co., 112 Kan. 298, 302, 211 Pac. 118.)
In Tidwell v. Schaff, Receiver, 114 Kan. 255, 217 Pac. 302, the functions of the arbitrator, where arbitration is resisted, are delimited. It is there declared that either party as a matter of right may require an arbitrator to determine the character and quality of the workman’s disability and the period through which payments are to be distributed. As to ordinary issues of controverted fact— whether plaintiff was in defendant’s employment, whether he was injured in his employer’s service, whether a settlementhad been effected and defendant thereby released from liability, whether there was fraud or mutual mistake in such settlement, and kindred questions such as may arise in any lawsuit — all these, of course, are triable before a jury or the court if either of the parties insist on their right thereto and have not theretofore agreed to or acquiesced in their reference to and determination by an arbitrator or shop committee.
But here, what issues of fact determinable by a jury as a matter of right were referred to the arbitrator? The questions which were formulated by the trial court were obviously its regular list prepared for use in ordinary cases referred to an arbitrator. We append this list with interpolated comment thereon:
“1. Whether or not an injury was incurred. [Admitted.]
“2. Whether or not it was an accidental injury. [Not in issue.]
“3. Whether or not it arose out of and in the course of the employment. [Controlling facts conceded in pleadings and argument, which made this question one of law.]
“4. Whether or not the employer or employee were under the compensation law, or either of them. [So declared by the statute.]
“5. Whether or not the injury is compensable. [Question obscure, but apparently one of law.]
“6. Extent and nature of the injury. [No issue raised on this question.]
•“7. His earnings for the year next preceding his injury. [No issue here.]
“8. Whether or not a notice was served within ten days. [No issue here.]
“9. Whether or not demand for compensation was made within the statutory time. [No issue here.]
“10. What, if any, medical services, hospital and appliances were made to the plaintiff and date and amount of same. [No issue here.]
“11. Whether or not the same has been paid for and by whom. [No issue here.]
“12. What compensation, if any, is allowed. [Properly referred to arbitrator.]
“13. What period for which compensation is allowed. [Properly referred to arbitrator.]”
It thus clearly appears that while the stereotyped list of questions referred to the arbitrator do suggest issues of fact which ordinarily could not' have been referred to him over defendant’s objection, yet in this case there was no real contested issue of fact referred at all. Several of the questions are more in the nature of an outline of inquiry to guide the arbitrator to a comprehensive understanding of the vital matters referred to him — amount of compensation, character and quality of disability, and period for which compensation shall continue. (Laws 1917, ch. 226, § 11; Tidwell v. Schaff, supra.)
Summarizing: no real issue of controverted fact was submitted to the arbitrator; no real controverted issue of fact triable by a jury existed; no erroneous determination of any material matter by the arbitrator was presented to the trial court for correction; and no error to the prejudice of defendant is presented by the record, and the judgment must therefore be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from part of a judgment allowing a claim against the estate of the' late Roy Parrish, of Mitchell county. There is also a cross appeal from another part of the same judgment, in which another claim of plaintiff was disallowed.
It appears that in his lifetime Roy Parrish was a buyer and seller of horses and mules. He had two barns in Beloit. He was associated in business with one Jake McCardle. McCardle hired the plaintiff on April 1, 1916, and pursuant thereto he worked at one or the other of Roy Parrish’s barns until August 1, 1918. For such partial payments of wages as plaintiff received, he was usually paid by Parrish. In June, 1919, plaintiff was again employed by McCardle and worked as he had previously done, and he was partly paid for his services by Parrish. Plaintiff’s second term of employment ended on April 1, 1920.
Roy Parrish died on December 16, 1920, and on January 6, 1921, J. J. Kindscher and Glen A. Parrish were appointed administrators of his estate.
On the assumption that the business relationship of Parrish and McCardle had been a partnership, the plaintiff on January 24,1921, filed in the probate court a demand, viz.:
Demand Against Estate.
“Said estate to J. Rominger, Dr.
“Claimant commenced to work for the partnership of Parrish and Mc-Cardle, of which deceased was a partner, on April 1, 1916, as a laborer, and worked continuously until August 1, 1918, which work was of the reasonable value of $50 per month, there being no specific agreement as to wages. Said Roy Parrish paid to this claimant during said period divers sums of money, but claimant is unable to give the dates or amounts of said payments. Said payments amounted to not more than an average of $25 per month, and there is due claimant from the estate of Roy Parrish thereon the sum of $700, with interest at 6 per cent per annum from August 1, 1918.
“On or about June 20, 1919, said partnership of Parrish and McCardle again employed claimant to work for them as a laborer and agreed to pay claimant the sum of .60 per hour. Between June 20, 1919, and April 1, 1920, claimant worked for said firm, of which said Roy Parrish, deceased, was a partner, for 265 days of ten hours each, and he therefore earned under said contract the sum of $1,590, of which he was paid the sum of $25, but said sum was paid in small amounts and at divers times, and claimant is unable to set out an itemized account and statement of said payments. Said agreement to pay was made orally, and said work was of the reasonable value of $1,590; by reason of which said estate of Roy Parrish is indebted to claimant in the sum of $1,565, with interest from April 1, 1920, at 6 per cent per annum.”
[A third item for $35 was eliminated.]
“By reason of the premises, said estate of said Roy Parrish, deceased, is indebted to claimant in the sum of $2,439.90 with interest at 6 per cent from January 21, 1921.
“State of Kansas, Mitchell County, ss:
“I do solemnly swear that I am J. Rominger; the above-named claimant, and have had the means of knowing personally the facts set forth, and that I have given credit to said estate for all payments and offsets to which it is entitled, and that the balance of $2,439.90 dollars claimed is justly due said claimant to the best of my knowledge and belief. So help me God.
“Signed: J. Rominger.
“Subscribed and sworn to before me this 24th day of January, 1921.
“W. EL Creitz, Probate Judge.”
On February 27, 1923, at the request of plaintiff, a hearing was had on this claim. The administrators and their counsel appeared; a trial was had and the claim was rejected. The claimant appealed to the district court, where the cause was tried without pleadings before a jury, which returned a verdict for claimant in the sum of $750, and answered certain special questions:
“1. Did the claimant or his attorney, J. E. Tice, serve a written copy of his claim against the estate of Roy Parrish, deceased, on J. J. Kindscher, one of the administrators of said estate? A. Yes.
“2. If you answer question No. 1 in the affirmative, then when was such copy of his claim so served? A. January 24, 1921.
“Q. 3. If you find for claimant, how much, if anything, do you allow him on his claim for $700.00? A. $350.
“Q. 4. If you find for claimant, how much if anything, do you allow him on his claim for $1,565.00? A. $400.00.”
A motion in behalf of the defendant estate was filed, praying that the general and special verdicts be set aside. It was granted in part:
“And the court, after listening to the argument on said motion, doth sustain the same and does set aside said general verdict to the extent of $400, for the reason that the court finds that noi partnership was proven, and doth reduce the same to the sum of $350.”
The journal entry reads further:
“And thereupon the plaintiff claimant asked to amend the second cause or paragraph of his claim by inserting after the word ‘Parrish and McCardle’ the words ‘or Roy Parrish individually.’ . . . Defendant . . . objected, . . the court being advised . . . doth overrule said request and refused to grant the same. . . . Plaintiff . . . excepted.”
Judgment for $350 was entered in plaintiff’s behalf.
The administrators appeal, complaining of the judgment against the estate for $350, and the claimant cross appeals because he was deprived of the item of $400 allowed him by the jury and included in the general verdict.
The first point urged by counsel for the estate is that the administrators failed to mail a copy of the notice of plaintiff’s claim against the estate to each of the heirs and legatees who were residents of the county or their resident guardians.
The statute reads:
“Such notice shall be served on the executor or administrator ten days before the presentation of the account to the court, and may be served by the party, his agent or attorney, or by any competent witness, who shall make affidavit to such service, and the administrator shall thereupon mail a copy of such notice to each of the heirs or legatees, or their guardian, if any, resident in the county in which the claim is presented, and shall make his affidavit showing such notice to have been so mailed, and the same must be mailed within two days after the notice is served upon the administrator.” (R. S. 22-713.)
It has been held that this notice is jurisdictional, and the want of it in one case rendered futile all that followed. (Gift v. Lennen, 113 Kan. 467, 218 Pac. 996.) The duty to mail such copies of notice to each of the resident heirs is imposed by statute on the administrator. Appellee argues that the statute does not contemplate “the defeat of a claim by an administrator failing to do his duty relative to a notice under the statute.” Whether such consequence would always and inevitably follow or not, the claimant is not altogether helpless to correct such dereliction of the administrator. He may compel him to perform; he may apply to have him removed for nonperformance, and he may sue him for damages if he loses his otherwise valid claim against the estate because of such delinquency on the part of the administrator. One obvious purpose of giving the heirs a copy of the notice is to inform them of the claim. Commonly, they or some of them may know and can apprise the administrator of defenses thereto, and another wholesome purpose is to give the heirs a timely .opportunity to intervene and contest unjust claims that the administrator may be disposed to concede or overlook. (Sarbach v. Deposit Co., 99 Kan. 29, 160 Pac. 990.) However, the resident heirs may waive such mailing of copies to them, and possibly they did waive it in this case by appearing in person or by counsel to resist the claim, just as service of summons in any action is waived by a voluntary entry of appearance. Surely counsel for the estate are not exclusively representing the administrators — pleading the delinquency of their own clients as a valid defense to plaintiff’s claim? For reasons hereafter to be set down, this cause will have to be remanded, and we shall not foreclose this particular question now, but leave it for the trial court to determine, upon all the facts, if the litigants, are disposed to contest the point to a conclusion.
Counsel for the estate next raise the statute of limitations. Plaintiff’s claims were in the nature of a running account. He had three years from the time he last received a payment on account to sue Parrish or Parrish & McCardle for his pay, if Parrish had not died. (Clark v. Eaton, 109 Kan. 574, 201 Pac. 71.) Less than two years elapsed after he was last paid something on account by Parrish when the latter died. When administrators were appointed plaintiff promptly filed and served his claim. No provision of the statute of limitations barring plaintiff’s ilaim can be discerned. (Clifton v. Meuser, 79 Kan. 655, 100 Pac. 645.)
Appellant also urges that there was no evidence of partnership. We think there was, but the fact was not essential to plaintiff’s recovery. His claim did not necessarily stand or fall on that point. No liability was sought to be fastened on Parrish’s estate on*the mere technical ground that Parrish had been a partner of McCardle and therefore that he and his estate were liable as such. There was, it seems, a business relationship between Parrish and McCardle which the claimant conceived or misconceived to .be a partnership. Parrish and McCardle were engaged in what appeared to be a common business. One of these men hired the plaintiff, and the other usually paid him, so far as he had been paid. Whether their business relationship met all the tests of a partnership — mutual contributions to the venture and mutual sharing of profits and losses— is not very material in this case. (30 Cyc. 390.) It seems to have been enough of a partnership to satisfy the court that the Parrish estate was liable to the claimant for $350, but not enough of a partnership to subject the estate -to the further sum of $400. It needs no disquisition to show that this result is inconsistent. If the plaintiff’s claim turned absolutely on the existence or nonexistence of the partnership and on no other point, then the claimant was entitled to both items or to neither. The cause was tried without pleadings other than, plaintiff’s claim as originally filed in the probate court. It will therefore make for justice to consider the claim as informally amended so that it can be regarded as a claim against Roy Parrish’s estate, whether such claim was for services rendered to Parrish individually or to the supposed partnership of Parrish & McCardle. (Blair v. McQuary, 100 Kan. 203, 206, 162 Pac. 1173; 164 Pac. 262.)
The judgment is reversed and the cause remanded for further proceedings. The costs in this court will be divided.
Harvey, J., dissents from paragraph 1 of the syllabus and corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant, twenty-three years old, appeals from a judgment convicting him of grand larceny and sentencing him to the penitentiary.
1. The defendant contends that “there was a fatal variance between the pleading and proof on the part of the state,” and that the court erred in overruling the demurrer to the evidence of the state, in denying the motion tp discharge the defendant, in submitting the case to the jury, and in its instruction to the jury.
The information charged the defendant with larceny of an automobile, valued at $618, “the personal property of J. E. Klintworth.” The undisputed testimony shows that the automobile was the property] of the Motor Equipment Company and that J. E. Klintworth had the temporary custody of it as an employee of the company. Concerning .proof of ownership of the car the court instructed the jury as follows:
“You are instructed that, before you can find the defendant guilty of grand larceny of an automobile, the state must prove to your satisfaction, beyond a reasonable doubt, the following propositions: . . .
“That it was the property of J. E. Klintworth. . . .
“Proof, in the manner required by these instructions, that at the time in question the motor was rightfully in the possession of the said J. E. Klintworth, as the agent, servant and employee of the Motor Equipment Company, will be sufficient to satisfy the requirement of law that the motor vehicle must have been the property of J. E. Klintworth.”
The defendant cites The State v. Beaty, 62 Kan. 266, 62 Pac. 658, where this coürt said:
“A person having the mere custody or temporary use of personal property in the capacity of servant of the owner, and who could not maintain an action for trespass as bailee for injury to the same, is not properly designated.as the owner in an information for larceny.” (Syl. 12.)
Contrary to the rule stated in The State v. Beaty, this court in The State v. Pigg, 80 Kan. 481, 103 Pac. 121, declared that—
“The actual status of the legal title to stolen property is no concern of the thief. In an information charging larceny the title to the property may be laid either in the owner or the person in whose possession it was when it was taken, even though that person had stolen it from someone else.” (Syl. IT 6.)
In the opinion in the latter case the court said:
“The information alleged that the money was the property of John McIntosh. He testified that the money belonged to his father, and that when he left home he just took it. This cannot be held to constitute a variance, because the actual status of the legal title to stolen property is no concern of the thief. The possession of the property in the complaining witness was sufficient to make it the subject of larceny, and the title may be laid either in the owner or the person from whom it was taken. This is the law even where the person from whom it was taken had stolen it from some one else.” (p. 488.)
The rules declared in these cases are contradictory; they' cannot be reconciled. What was said in The State v. Pigg accords with good reasoning and the weight of authority. That rule is adhered to. In so far as The State v. Beaty conflicts with The State v. Pigg, it must be said that the latter decision overruled the former. If, follows that the instruction complained of was good.
2. The defendant contends that there was not sufficient evidence on which to submit the case to the jury nor to support the verdict of guilty.
Under this head it is argued that discovery of the car in the unexplained possession of the defendant was not so soon after the theft of the car as to justify the inference of his guilt. The car was stolen from the street where it was parked on July 7, and was found in the possession of the defendant July 21. In 17 R. C. L. 73, this language is found:
“The length of time that must elapse after the larceny of goods before their possession should cease to be considered as tending with other facts to show guilt is, as a rule, purely a question of fact for the jury.”
The evidence was competent. Its sufficiency was for the jury.
Defendant also argues that there was not sufficient evidence to identify the car in his possession as the stolen car. There was evidence which tended to show that the car in possession of the defendant was the stolen car. The sufficiency of that evidence was for the jury.
3. The defendant complains of the admission of certain testimony which tended to show that at the time the stolen car with changed or altered engine numbers was discovered in his possession, he had two other cars, the engine numbers of which had been changed or altered. In The State v. Ridgway, 108 Kan. 734, 197 Pac. 199, where the defendant had been convicted of grand larceny, this court said:
“Under the circumstances stated in. the opinion, evidence relating to the subject of' commission of other larcenies by the defendant was properly admitted at her trial on the charge of grand larceny.”
That rule was followed in The State v. King, 111 Kan. 140, 144, 206 Pac. 883, and The State v. Mall, 112 Kan. 63, 65, 209 Pac. 820.
4. The defendant contends that the “trial court erred in sentencing the appellant to the Kansas state penitentiary at Lansing, Kansas,” and argues that he should have been sentenced to the Kansas state industrial reformatory at Hutchinson. Section 76-2306 of the Revised Statutes, in part, reads:
“Any male person between the ages of sixteen and twenty-five who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may, in the discretion of the trial judge, be sentenced either to the state penitentiary or to the Kansas state industrial reformatory.”
No error has been shown; the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover upon a life insurance policy. The verdict and judgment was in favor of the plaintiff and defendant appeals.
On June 3, 1921, Mrs. Sadie M. Blades, a married woman, was solicited to take out a policy of insurance in the Farmers and Bankers Life Insurance Company. She signed an application for a policy in the amount of $2,000 payable to her estate.' Her husband took out a policy on his life at the same time and both went to the office of the medical examiner on June 11, 1921, where the examination was made. On June 29, 1921, the medical examiner visited the Blades’ home and required her to fill out an additional blank which it is said was required where the applicant was a married woman, whereupon he interrogated her and wrote down the answers for her. It appears she was taken to a hospital on October 13, 1921, where she underwent a surgical operation known as a Csesarean operation, when a dead child was removed from her body. At the end of about three weeks she appeared to have recovered from the operation and was returned to her home, but on November 7, 1921, she was taken suddenly ill and died about three hours later. The attending doctor gave embolism as the cause of her death. The plaintiff asked for a recovery upon the policy which was alleged to have been in full force and effect when she died.
In answer to plaintiffs’ petition, the defendant alleged that in the application of the insured she represented that she was not pregnant, whereas she had been pregnant for about three months prior to the time the application was signed. In the medical examination she was asked the question: “How long is it since you have consulted or have had the care of a physician?” and the answer written was, “None since confinement.” The confinement referred to occurred about two years before the application for insurance was made. Testimony was offered that this was not the question asked by the medical examiner, but that the question asked was: “If she had had a doctor for anything serious since the last child was born?” and she answered “No.” The defendant with its answer filed a cross-petition asking for the cancellation of the policy because of untrue answers given in the preliminary medical examination. The case was submitted to a jury which found as to the time when she consulted or had had the care of a physician that she had talked to a physician about her condition on May 30, 1921, when she told the doctor that she had missed a menstrual period but was menstruating on that day and wondered if she could be pregnant, and that the doctor who made no examination told her to rest and await developments and that if pregnant she would probably be confined about November of that year.
There was a finding that she was pregnant on June 3, 1921, but that she did not know that she was pregnant when she made her application for insurance and did not knowingly and falsely misrepresent her condition of pregnancy for the purpose of defrauding the insurance company. It was also found that she did not believe or have cause or reason to believe that she was or might then be pregnant, and did not have reason to believe so until she felt motion.
There was a further finding that when the policy was applied for and issued the company did not knowingly insure the life of pregnant women.
After finding as to the death and its cause the jury further found that they did not know whether the condition of pregnancy or the operation contributed to the result that caused her death, and did not know that phlebitis following the operation to deliver the child and producing embolism caused her death, but that her death was caused by embolism.
On the request of the defendant the court made findings of fact of its own on the cancellation branch of the case which mainly corresponded with those made by the jury. The court found that when the original application reached the- home office of the defendant and the examination disclosed that the applicant was a married woman, a special blank to be filled in was sent to the local medical examiner with instructions to have the questions therein answered and signed as a part of the application. It was found that at the time the application was signed the insurance company did not knowingly insure the lives of pregnant women, and that over the signature of the applicant was a declaration that the statements and answer^ were true, full and complete, whether written by her own hand or not, a-nd that they were offered as a part of the application for insurance. There was a recitation that the court had admitted over objection the form of the question asked by the medical examiner, to wit: “If she had had a doctor for anything serious since the last child was born?” and the answer “ño,” given by Mrs. Blades.
There was a further finding that if the application had shown that the applicant was pregnant or if from representations made by her in the application, the defendant had had any reason for believing that she was pregnant or she had consulted a doctor to ascertain if she was pregnant, the policy would not have been issued. The conclusion of the court was that defendant was not entitled to a cancellation of the policy.
The findings of the jury were approved by the court and judgment entered upon the verdict. There is no objection to the findings of fact by the court, but its conclusion is challenged.
The first assignment of error is the admission in evidence of oral testimony as to the question asked and answered in relation to the time the insured had consulted a physician. The application was prepared by the medical examiner of the company, he asking the questions and writing down the answers of the insured. As already shown the question was: “How long is it since you consulted or have had the care of a physician?” The answer written was: “None, since confinement.” According to the testimony the question asked was: “If she had had a doctor for anything serious since her.last child was born?” and that the answer was “no.” She had talked with a physician shortly before the policy was issued as already related. If her interview with the doctor may be regarded as a consultation' and the question and answer material in the case, still the evidence cannot be held to be incompetent. The defendant alleged that the question was asked in the form stated and was answered untruthfully. The plaintiff denied the averment and specifically alleged that the insured had never said or answered that she had not consulted a physician. It was the duty of the representative of the company who prepared the application and contract to write correctly the questions and answers as they were propounded and given. The insured had a right to rely upon the assumption that the answers made by her were correctly written, and where it is not done, it is competent for the plaintiff to show what representations were actually made. In a case where a question arose as to the admission of oral evidence as to representations made by the insured when the application was prepared, it being contended that it would overthrow a written contract, it is said: “This court has decided numerous times that such evidence is admissible.” (Broady v. Fire Association, 94 Kan. 245, 146 Pac. 343). Some of the cases recognizing that such evidence is admissible and has been considered are: Insurance Co. v. Bank, 60 Kan. 630, 57 Pac. 524; Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87; Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245; Farragher v. Knights and Ladies, 98 Kan. 601, 159 Pac. 3; Mercantile Co. v. Insurance Co., 101 Kan. 522, 168 Pac. 323; Moreland v. Security Benefit Association, 112 Kan. 587, 212 Pac. 93.
The principal contention is that the negative answer given to the question: “Are you pregnant?” and the instructions relating to the subject require a reversal of the judgment. It is insisted that the fact of pregnancy was one peculiarly within the knowledge of the insured and as she was in fact in that condition her answer was untrue and operated to annul the policy. It may be noted that there is no express provision that the answers or statements made by the insured in her application for insurance are to be regarded as warranties. It was recited in the application which she signed that each of the statements and answers made by her were true, full and complete and that she offered them as a part of her application for insurance. Should the statements made be treated as warranties or mere representations? In Insurance Co. v. Woods, 54 Kan. 663, 39 Pac. 189, there was a contention that incorrect answers made to questions as to the physical condition of the insured and as to consultations with physicians, where it appeared that the policy contained a provision that if any statement made in the application should be found to be incorrect, the policy would be void. It was held that the statements in the application for a policy which if untrue would avoid the policy, should not be construed as warranties, unless the provisions of the application and policy left no room for any other construction and it was concluded that the statements in question should not be treated as warranties. The general rule is that forfeitures are not favored, and that provisions and obligations of an insurance contract should be construed liberally in favor of the insured and that.only the clearest and most unequivocal language of the contract should be construed as a warranty. The supreme court of the United States held there was no warranty in a case wherein the questions were whether statements made in the application that the insured had not been afflicted with certain diseases, and there was a claim that untruthful answers given would relieve the insurer from liability. The policy contained a provision that the insured declared and warranted that the above were fair and true answers to the question asked, and it was held that the statements made by the insured were not warranties. The trial court had instructed the jury to the effect that untrue answers would avoid the policy regardless of the knowledge and good faith of the insured. The court said:
“It was an erroneous construction of the contract to hold, as the court below did, that the company was relieved from liability if it appeared that the insured was, in fact, afflicted with the diseases, or any of them, mentioned in the charge of the court. The jury should, have been instructed, so far as the matters here under examination are concerned, that the plaintiff was not precluded from recovering on the policy, unless it appeared from all the circumstances, including the nature of the diseases with which the insured was alleged-to have been afflicted, that he knew, or had reason to believe, at the time of his application, that he was or had been so afflicted.” (Moulor v. American Life Insurance Co., 111 U. S. 335, 346.)
See, also, Farragher v. Knights and Ladies, supra; Sharrer v. Insurance Co., 102 Kan. 650, 171 Pac. 622; Suravitz v. Prudential Insurance Co., 244 Pa. St. 582; Pelican v. Mutual Life Insurance Co., 44 Mont. 277; Cunningham v. Modern Brotherhood of America, 96 Neb. 827; McCombs v. Insurance Co., 159 Ia. 435; Royal Neighbors of America v. Wallace, 73 Neb. 409; Note in 11 L. R. A., n. s., 981; Note in L. R. A. 1915 A. 273. From the authorities it appears that the statements of the insured cannot be regarded as more than representations, and as to the one in question cannot be regarded as other than an expression of opinion or judgment. Of course good faith on the part of the insured was essential, and if there was intentional suppression of material facts, no recovery could be had. On the other hand it has been held that if the opinion expressed is:
“made in good faith, believing that she was' not in such condition, even if such answer was not true, it would not avoid the policy or the liability of the company if the applicant in good faith believed her answer to be true.” (Donahue v. Mutual Life Ins. Co., 37 N. D. 203, 218.)
It has also been said that:
“An incorrect or untrue answer in an application for life insurance in reference to matters of opinion or judgment will not avoid .the policy if made in good faith and without intention to deceive.” (Royal Neighbors of America v. Wallace, supra, syl. ¶ 1.)
The instructions of which complaint is made were in line with the authorities cited to the effect that the burden was upon the defendant to show that the representations made were in fact untrue and falsely made, and that if the insured did not know or believe that she was pregnant when she made her application, the fact that she was in that condition would not avoid the policy nor defeat a recovery unless it was found that the death of the insured resulted from her pregnant condition. We think the defendant had no reason to complain of the instructions given.
It became a question in the case therefore for the jury to determine whether the insured answered the questions honestly and in good faith when she made her application or whether she knowingly and willfully misrepresented her condition as to pregnancy. The jury has1 found that she did not know that she was pregnant when the application was made, and further that she did not knowingly or falsely misrepresent her condition of pregnancy for the purpose of defrauding the insurance company. The insured did talk with Doctor Viers in May, 1921, about her condition, telling the doctor that she had passed a period of menstruation, but was menstruating a little on that day. She wondered whether she might be pregnant, and she was told by the doctor to rest and await developments. There was other testimony that there was no cessation of the menses in the months of March, April and May of 1921, and that she was menstruating as late as August 1, and that no motion or quickening was discovered until about the first part.of August. The representation as to pregnancy was made on June 29, 1921. A physician who had considerable experience in such cases testified that there is no way of knowing whether or not a woman is pregnant before quickening, except doubtful symptoms. The doubtful symptoms he testified were cessation of the menses, morning sickness, and enlargement of the abdomen, but that the only positive sign was fcetal heart beat. Another physician testified that as a míe menstruation ceased when conception takes place, but that a woman may menstruate down until the time of confinement, and added that all women do not experience a quickening motion, that it is generally thought that a woman is not pregnant when she is'menstruating, and that the return of her menstrual period might have indicated to the insured that she was not pregnant. Where it had been claimed that the insured woman had concealed her condition of pregnancy, and that the insurance company had relied on her statement that she was not in that condition, it was said:
“Now, from the fact that a fully developed child was bom to the deceased about six months after the examination, it is clearly established that she was about three months pregnant when the examination was made, so that the material question is whether, or not she fraudulently and knowingly misrepresented her condition. The testimony of the medical experts in this case shows that before the quickening period pregnancy cannot be detected from general symptoms, and that the quickening period ordinarily occurs during the fourth and fifth month of pregnancy. Consequently, the evidence, is very slight that tends to show that the deceased knew of her pregnancy on-the 18th day of October, 1902, but it is much stronger on the probability of her having knowledge of such fact on the 1st of December following, for that date was probably, under the testimony, within the quickening period.” (Merriman v. Grand Lodge Degree of Honor, 77 Neb. 544, 547.)
The statement of the insured was at most an expression of opinion and there was room for the inference that she was honest in the answers given and had no intention to deceive the insurance company. Her good faith was a fair question for the jury.
It being determined that there was no bad faith or intent to deceive in the representations made, the question as to whether pregnancy contributed to the death of the insured is of less importance. The testimony of the physicians and the finding was that embolism was the cause of her death. After the operation phlebitis, commonly called milk-leg, developed, and the expert witnesses stated that phlebitis sometimes follows a Csesarean operation. It is described as an inflammation of the veins and that a clot or some product of inflammation when carried into the blood stream, and lodging in a vessel which supplies the heart, ordinarily causes embolism and sudden death. While there is testimony that pregnancy may produce phlebitis or that it may be caused by a surgical operation, it was also stated that it might be caused by bruises or contusions on the outside of the body, also by varicose veins. The doctor who was present when the insured died diagnosed the case as death resulting from phlebitis causing an embolism, but he stated that phlebitis occurs many times when there is no pregnancy or childbirth, and with men as well as with women, and further that he did not know what had caused the phlebitis. Another of the physicians said that death might have been due to pregnancy, but that it might be attributed to other causes, and that she was unable to say what was the cause in this instance. She likened it to nephritis which she said might occur in pregnancy, but might result from other causes. In Nardinger v. Ladies of the Macabees, 138 Minn. 16, where there was an exception from liability from pregnancy or childbirth, a seven months’ child was removed from the insured by a process called forcible delivery. It appears that she was afflicted with nephritis when she died, and the question arose whether the nephritis resulted from a complication arising from pregnancy. In upholding a verdict for the plaintiff it was said:
“In considering this question, we may accept the fact, testified to by defendant’s experts, that nephritis is one of the frequent complications attending pregnancy; that in a general way nephritis is caused by the presence of poison in the system; that this poison may come from without, or it may arise within the body, and that pregnancy is sometimes responsible for its presence. On the other hand Doctor Boehm, plaintiff’s expert, testified that ‘pregnancy alone’ does not cause nephritis. Probably there should not be any serious quarrel over this proposition. Doctor Beebe, defendant’s expert, testified that healthy women do not have disease with pregnancy. This, in connection with the balance of his testimony, we take to mean that while the poison that causes nephritis may be produced by the pregnancy, it is not so produced where all organs of the body perform to the full their normal functions. If the testimony of any of defendant’s experts would lead to any other conclusion, the jury were not obliged to follow it. But these matters are collateral to the issue. The testimony is uncontroverted that nephritis may result from a variety of causes and that nephritis may occur during pregnancy from causes 'entirely independent of it. The question was asked of medical witnesses on both sides whether, in their opinion, the nephritis of which Mrs. Nardinger died, was caused by pregnancy. Defendant’s witnesses answered, ‘yes;’ plaintiff’s witnesses answered, ‘no.’ The facts are such that the jury might well have found for the defendant on this issue, but we cannot ignore the testimony of plaintiff’s witnesses, and, in view of the fact that the burden of proof rests on the defendant as to this proposition, we feel bound to hold that the verdict of the jury has sufficient evidence to sustain it.” (p. 19.)
For like reasons it must be said that the evidence is sufficient to sustain the verdict of the jury on this as well as the other questions involved in the case.
Finding no substantial error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal relates to the rights of precedence of rival litigants, garnisher, garnishee, and interpleader, all of whom were creditors of the defendant debtor, I. F. Williams.
In 1920, Williams was a tenant farmer, thresherman and grain buyer at Menlo in Thomas county. The precipitate decline in the price of wheat in the autumn of that year caused his insolvency.
Westerman, interpleader, was the owner of a quarter section of wheat land which was farmed by Williams on equal shares of the crop. Williams raised about 2,700 or 2,800 bushels of wheat on the Westerman land; he sold it and placed the proceeds in his own general deposit and checking account in The Rexford State Bank. Westerman did not learn of this sale and conversion until some weeks thereafter.
The Rexford State Bank was a creditor of Williams to the extent of $3,700, for the security of which it held a mortgage on certain chattels of Williams and on a small pile of wheat belonging to him located on a certain town lot in Menlo. In this bank Williams was a depositing customer, and the proceeds of all of Williams’ sales of grain were deposited therein and checked out again as needed in the course of his business transactions. During October and November, 1920, Williams’ deposit and checking account fluctuated between $6,981.34 maximum and $1,950 minimum. The bank figures as garnishee as well as creditor in this action.
Turner, the plaintiff, held two unsecured notes of Williams, one for $800, due November 14, 1920, and one for $3,000, due January 1, 1921.
On November 29, 1920, Turner commenced this action against Williams on these notes, and garnisheed Williams’ checking account in The Rexford State Bank, which at that time was $2,355.34.
On December 3, 1920, the bank filed its verified answer alleging that it was not indebted to Williams in any manner “excepting he has in his checking account $2,355.34, which, however, represents money from the sale of wheat- on which this bank had a chattel mortgage, and this money we claim should be applied on his note to us.”
On February 17, 1921, Westerman filed his interplea alleging his ownership of a quarter section of land leased to Williams and that he had furnished the seed wheat for its sowing, in consideration whereof he was to receive one-half the crop delivered at market free of cost except his proportionate charge of the cost of' threshing. He alleged that $1,706.98 of the money in Williams’ checking account was proceeds of his share of the wheat raised on and sold from the Westerman land.'
Thereafter, on June 20, 1921, plaintiff filed an amended and supplemental petition setting forth anew his two causes of action on the two notes — the chief supplementary matter being that both notes were then past due and unpaid, whereas only the $800 note was due at the time the original petition was filed and the original garnishment undertaken.
The bank made verified answer to the second summons in garnishment setting up a note of Williams for $3,700 due December 15, 1920, and a mortgage to secure it covering 2,000 bushels of wheat on Block 11 in Menlo, and alleging that after its execution Williams sold the greater part of the wheat and turned over to the bank the proceeds to be applied on his debt to the bank, and—
“That at the time of the service of the first garnishee summons in this action, to-wit: November 29th, 1920, and at the time of the service of the second garnishee summons in this action, to wit: July 1st, 1921, this answering garnishee had on hand of the funds arising exclusively from the sale of the wheat upon which it held a chattel mortgage as above stated the sum of 12,355.34 and no more. That said money above enumerated at the time of the service of garnishee summons, and- each of them, upon this garnishee was a trust fund and was being held by this garnishee until such time as the defendant herein might sell and dispose of the remainder of the wheat covered by the aforesaid mortgage at which time he was to come to the bank of this garnishee and receive due credit upon his promissory note above mentioned which was at that time and now is the exclusive property of this answering garnishee.”
• Some minor matters in these and other pleadings will not need to be stated.
Plaintiff Turner was given judgment for $4,168.66 against Williams on the two notes of $800 and $3,000 and the interest thereon. And thereupon the issues framed by the garnishment proceedings and by Westerman’s interpleader were tried. Evidence was introduced, and the trial court made extended findings of fact and conclusions of law. The latter, in part, read:
“conclusions op law.
“1. That the intervenor, George Westerman, is entitled to the sum of $1,523.20, together with six per cent interest thereon from the first da3r of November, a.d. 1920, from the funds in the bank of garnishee on the 29th day of November, a.d. 1920, contained in the general checking account of I. F. Williams.
“2. That the remaining portion of the amount in the general checking account of I. F. Williams, in garnishee bank on the 29th day of November, a.d. 1920, should be paid to the clerk of this court, for application on judgment of Turner v. Williams.
“3. That the garnishee has no valid claim to funds contained in general checking account of Williams, as against the claims of Westerman and Turner.”
Plaintiff appeals, complaining because he was not given the entire bank deposit of Williams to apply on his judgment.
The bank urges certain defects in the garnishment proceedings, that it had no notice that any portion of the money deposited was proceeds of the Westerman rent wheat and that it traced the sale of the wheat covered by its chattel mortgage into the bank deposit, that Williams before suit had assigned the deposit to the satisfaction of his indebtedness to the bank, and that it held the deposit as a trust fund to be applied on the note of Williams when Williams should finish selling all of the wheat covered by the bank’s mortgage. These contentions are made the basis of various errors assigned which, so far as necessary, will be noticed.
Considering first the points raised by plaintiff: It is fundamental that under garnishment proceedings, the. garnisheeing creditor can get nothing except what actually belongs to the debtor. (Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210; L. R. A. 1916 D, 361, 365; Rich v. Roberts, 103 Kan. 116, 172 Pac. 996; Eggers v. Ross, 103 Kan. 812, 176 Pac. 665; Lampl Produce Co. v. Hawkins, 106 Kan. 423, 188 Pac. 233; Fairbanks, Morse & Co. v. Inglitt, 106 Kan. 488, 188 Pac. 248; Bank v. McNabney, 109 Kan. 69, 197 Pac. 879.) As in all other proceedings in invitum the rights and equities of third parties must be respected. (Kindig v. Richardson, 108 Kan. 218, 194 Pac. 920.) So if Westerman or the bank had a prior equitable right to the deposit, plaintiff’s garnishment would be ineffective to bar or supplant such equity. And so far as Westerman was concerned, it was found by the trial court, on supporting evidence, that the proceeds of Westerman’s share of the wheat was deposited in the bank and was a part of Williams’ checking account therein prior to the institution of plaintiff’s action, November 29, 1920. The proceeds of Westerman’s wheat, therefore, belonged to Westerman -none the less because it was on deposit in Williams’ name; its identity had not been lost nor its character changed merely because it was mingled with other money of Williams or standing in his name. (Morrill & Janes v. Raymond, 28 Kan. 415; 39 Cyc. 538; 26 R. C. L. 1348 et seq.) Even if there had been complete substitution of other moneys of Williams for the Westerman wheat money, the deposit account would remain a trust fund for Westerman’s benefit. (Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658; L. R. A. 1916 C, 21 et seq.; 3 R. C. L. 552, 553.) Consequently as between Westerman and plaintiff, the trial court’s judgment was correct.
The plaintiff urges other errors, but as he was given judgment for all the money remaining in the Williams deposit account, after the Westerman superior claim was satisfied, it seems needless to consider them.
Turning now to the grievances of the bank, some of which are directed at plaintiff, some at Westerman, and some at both plaintiff and Westerman; counsel for the bank contend that the whole checking account had been assigned by Williams to the bank a few days before the garnishment summons was served. The evidence on this point was that one evening just as the bank was closing and the cashier leaving for home, Williams said to the cashier, “Probably we had better put this money in the bank on the note.” The cashier said: “I am about ready to leave now, let’s leave that until you come in again.” In this conversation, also; Williams testified: “I told Crumley [cashier] to apply my money on the notes,” and Crumley said he was just ready to go to Colby, and said, “We will see about it the first of the week.”
Does this conversation show that an assignment was made? It is true that an oral assignment of a right is frequently sufficient in law, (McCubbin v. City of Atchison, 12 Kan. 166; 5 C. J. 900, 901), but it must be unequivocal, not a mere proposal to assign on which no action is taken. In 5 C. J. 897, it is said:
“In the absence of restrictions imposed by statute or by the instrument creating the interest or right, no particular mode or form is necessary to effect a valid assignment, and any acts or words are sufficient which show an intention of transferring or appropriating the owner’s interest. A mere agreement to assign, or tentative proceedings in expectation of an assignment, or a promise to pay a certain portion of -a claim when collected, do not constitute an assignment; there must be a present transfer of the assignor’s right, a transfer so far complete as to deprive the assignor of his control over the subject of assignment.”
Here there was no more than a proposal by the debtor. It was not acted upon. On the contrary there was a deliberate postponement of action until the debtor should come in again or until the following week. Furthermore, there never was any application of the funds on deposit to the payment of the note held by the bank, pursuant to such proposal or otherwise. The theory of an assignment cannot be upheld.
It is also urged that the proceeds of the pile of wheat on the Menlo town lot on which the bank held a chattel mortgage were part of the deposit account of Williams, and that the bank had the same sort of claim thereto as that of Westerman. The trial court found that the amount of wheat on the Menlo town lot was small at the time the chattel mortgage was given, October 6, 1920, and that the bank knew Williams planned to sell it and buy other wheat. The bank knew Williams bought and sold much wheat during October, 1920, and knew that he sold the small pile of wheat on which the bank had a mortgage. The bank knew it was sold almost as soon as the mortgage was given. Yet it permitted him to use the proceeds of the mortgaged wheat as his own funds. It therefore could not successfully assert a right to the deposit account superior to that of the interpleader.
The' bank also urges a defect or insufficiency in the first garnishment affidavit, but this defect, as in most other defective pleadings, was waived by the garnishee’s answer thereto. (Threshing Machine Co. v. Francisco, 106 Kan. 704, 708, 709, 189 Pac. 981.) In 12 R. C. L. 822 it is said:
“Defects in the affidavit do not render the judgment void, and a variance between the affidavit and the evidence as to a minor matter which could not have misled the garnishee may be disregarded. A garnishee, who appears and answers, and proceeds to a hearing, upon a citation issued on an affidavit • for an order for the examination of himself, as garnishee, thereby waives any objection to the insufficienc3r of the affidavit.”
It is also urged that the undertaking in garnishment was defective because it was signed for plaintiff by his attorney, and because the names of the sureties -are not inserted in the body of the instrument. The signatures of the sureties at the foot of the undertaking bound them absolutely, and an examination of the record fails to show that any motion or objection was leveled at the undertaking because the principal’s name was signed by his attorney, even if it could be said that the undertaking was insufficient on that account.
The scope and sufficiency of the bank’s answer to the summons in garnishment need attention. No notice of issue to be taken thereon was served on the bank within 20 days as provided by statute (Gen. Stat. 1915, § 7128), so the facts alleged in the bank’s answer stand as true. What were the facts thus conceded? They were these: Williams had a checking account of $2,355.34 in the bank; that sum represented money from the sale of wheat on which the bank had a chattel mortgage; and the bank claimed it should be applied on Williams’ note held by the bank — obviously the note for which the chattel mortgage had. been given as security.
As between plaintiff and the bank, therefore, although not between the bank and the interpleader, the fact that the $2,355.34 was the proceeds of wheat mortgaged to the bank stood as admitted. Between plaintiff and the bank, also, it stood as admitted that the bank claimed that the money should be applied on the note. On this latter point, there was really no issue of fact; it was the assertion of a claim which might or might not be legally sufficient. The plaintiff by failing to take issue could not deny that the bank claimed the money but he could contest the validity of the claim. But recurring to the conceded fact that the deposit was proceeds of wheat mortgaged to the bank, it is to be observed that the bank had not appropriated the money as proceeds of mortgaged wheat to satisfy its claim for conversion against the debtor. It held the money merely as a banker and, as a banker, it was content to place and keep the money in the debtor’s checking account; and as an ordinary checking account, it was subject to the debtor’s control as his own money, and consequently subject to garnishment by any creditor of Williams.
In 28 C. J. 85, it is said:
“Unless specifically exempted therefrom, garnishee process may be laid in the hands of, a bank or trust company, the same as any other corporation. In this connection the remedy has been most commonly employed to reach funds of the principal defendant on deposit with the garnishee.”
In 28 C. J. 279, it is said:'
“A garnishee bank may set off a debt due to if as against money of defendant on deposit with it. It cannot, as a general rule, retain such money as against a note not yet due, but in some jurisdictions it may do so where the note becomes due at or before the time of the trial.”
Another objection to the validity of the garnishment was that one of plaintiff’s notes was not due at the time the proceedings were begun. True, but the $800 note was past due and that amount with the interest thereon would entirely consume the balance of the deposit after Westerman’s claim was satisfied. The garnishment to safeguard the payment of the $800 was proper, and the fact that plaintiff also sought to subject the deposit to the payment of the $3,000 not then due did not render the garnishment abortive as to the $800. Indeed, the garnishment was good to protect the plaintiff on the unmatured note. (Bank v. Dondelinger, 103 Kan. 444, 175 Pac. 109; Winterscheidt v. Wilson, 110 Kan. 649, 205 Pac. 600.) Moreover, the plaintiff testified that a day or two before the garnishment proceedings begun, the cashier told plaintiff that Williams had a checking account of nearly $4,000 and that he (the cashier) was perfectly willing that Williams should pay the $800 note out of that checking account; and even after the garnishment the cashier said he was still willing that this note should be paid out of the checking account. The cashier testified:
“The account shown by Exhibits 3 and 4, which was the account of Williams in the Itexford State Bank, was the only account he had in said bank, was a general checking account the same as the ordinary depositors had in said bank, was subject to his checks, and one for which he received a pass book for his credits. . . The wheat he had a mortgage on was sold sometime from the 6th of October, 1920, to the 5th of November, 1920, and from the 5th day of November, 1920, he knew that the wheat on which the bank held the mortgage had been, by Williams, sold but could not say what particular deposit would represent this particular wheat, but all deposits of money that Williams made went into our bank into his account there.”
The foregoing discloses quite clearly that so far as the bank was concerned the deposit account of Williams was amenable to garnishment on November 29, 1920. .
In its answer on July 19,1921, to the second summons in garnishment the bank made a further allegation that it held the deposit as a trust fund until such time as the defendant might sell some more ■wheat covered by its mortgage, “at which time the defendant was to came back to the bank and receive due credit upon his promissory note” owned by the bank.
There was not much evidence to support this allegation; indeed it was more of a legal theory of the bank’s right to the money than an allegation of material fact. At all events, the trial court made no finding of fact in harmony with that allegation, and the general trend of the findings which the court did make was against it, and the bank bases no error on the findings of fact. The court specifically found that the money was in the general checking account of Williams, to which the bank had no claim as against interpleader and plaintiff.
The bank seeks to make a point against Westerman, because he admitted on cross-examination that, although unauthorized, it was all right for Williams to sell his wheat and get the money for it. But what of that? Williams converted the money to his- own use by placing it to his own credit in the bank. Certainly Westerman did not loan Williams the money; he did not know of either the sale or' conversion. He did not condone the conversion. Counsel for the bank say:
“In our opinion, under the facts as developed in this case, it would be a dangerous precedent to say that simply because some depositor of a bank should make away with moneys belonging to another a considerable period of time prior thereto that in order to hold the bank liable all that is necessary is to show that the one who made way with the money had at the time been a depositor at the bank and still carried a deposit therein. . . .
“Assuming for the sake of argument only, that Williams sold all of Westerman’s wheat and deposited the whole of the proceeds in appellant’s bank and then as trustee of these funds checked it out indiscriminately for current business expenses, the bank surely could not be held liable in any manner or under any conceivable circumstances unless it had knowledge that the funds so checked out as aforesaid were trust funds.”
But let us not confuse or mistake the issue. No liability was sought tó be imposed on the bank because of Williams’ wrongdoing. This is not an action to impose a liability on the bank. It is simply a three-cornered fight between the bank, Westerman, and Turner to secure a sum of money in a debtor’s checking account. And the evidence was amply sufficient that the checking account contained the proceeds of Westerman’s wheat. The deposit account therefore was properly subjected to the satisfaction of Westerman’s claim, which can no more be said to impose a liability on the bank than it imposes a liability on Turner, although both of them are excluded from that part of the fund because of Westerman’s superior right thereto. Nor does this result from any supposed sanctity of a landlord’s lien. It would have been just the same if Williams had come into possession of anybody’s money, derived from any source, and he had put it into his own bank account. The party whose money it was could follow it and impress a trust upon it superior to that of the bank so long as the bank permitted it to remain in its customer’s checking account, and likewise superior to that of a garnisheeing creditor. (39 Cyc. 528; 26 R. C. L. 1232, et seq.)
The other matters argued by the bank have all been carefully considered, but need no discussion. The court can discern no material error in the record which would justify a reversal either in behalf of plaintiff or the bank; and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the Razor Company, which had been a corporation, against Guymon, to recover damages for conversion of corporate property. When the action was commenced, a trustee in bankruptcy for the corporation had been appointed. Besides asking judgment against Guymon, the petition prayed that the trustee be made a party, and be required to set up his interest in the subject of the action. The trustee answered, praying judgment for an allowance out of plaintiff’s judgment sufficient to pay claims against the estate of the bankrupt, and costs. The action was abated because when it was commenced the corporation had no legal existence. On appeal, the judgment of the district court abating the action was affirmed. (Razor Co. v. Guymon, 110 Kan. 745, 205 Pac. 635.) The trustee then asked for a trial on his pleading. This was denied, and he appeals.
Guymon’s objections to permitting the trustee to litigate with him raised some interesting questions of bankruptcy law. It is not necessary to consider them because, as Guymon also claimed, when the action abated for want of a plaintiff, nothing remained to engage the attention of the court.
The trustee’s pleading was entitled “Answer and Cross Petition.” After reciting the adjudication in bankruptcy, selection and qualification of the trustee, allowance of claims, pendency of other claims, and probable expense of the bankruptcy proceeding, the pleading-continued as follows:
“This defendant, further answering herein, makes all the allegations of plaintiff’s first, second and third count, as set out in its petition, a part of his answer, and further alleges that, out of whatever amount recovered against this defendant, E. T. Guymon, there should be ordered paid to this trustee in bankruptcy a sum sufficient to pay all the claims in bankruptcy, and said expenses, not less than the sum of $14,500.
“Wherefore, this defendant' prays -for judgment against said defendant and in favor of the plaintiff, as prayed in said petition, and a further judgment decreeing this defendant to be entitled to such an amount of said judgment as will pay all said claims, interest, and costs, and for such other relief as is just and equitable.”
The first, second and third counts of the petition contained statements of the corporation’s various causes of action against Guymon. Evidently the trustee referred to them as the foundation for his claim to a portion of whatever judgment the corporation might recover. They disclosed that the estate which came into the trustee’s hands for the benefit of creditors had been depleted. No purpose whatever is manifested to proceed independently in the corporation’s action, to obtain, (on the same state of facts, another and separate judgment against Guymon for a portion of the damages. The substantive part of the pleading was that, out of whatever damages the corporation recovered .from Guymon, the trustee should have not less than $14,500. The prayer was, not that the trustee have judgment against G,uymon, but that the corporation have judgment against Guymon, and then that the trustee have judgment against the corporation for such portion of the corporation’s judgment as might be necessary to close up the bankruptcy proceeding. The cross petition was directed against the corporation. No issue was raised between the trustee and Guymon, and when the corporation’s action abated, the trustee’s intervention came to an end.
No appeal was made to the court’s discretion for permission to substitute the trustee for the corporation, as plaintiff, or to recast the pleading in such way as to convert the action into one by the trustee against Guymon, and the litigation is necessarily at an end.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for malpractice. It was tried to a jury which made findings of fact and returned a general verdict for plaintiff. The defendant has appealed.
Appellant’s main contention is that the court should have sustained his demurrer to the evidence which makes it necessary for us to examine the evidence offered by plaintiff in chief.
The plaintiff, a man fifty-eight years old, was living on a farm with his mother, eighty-one years of age. On May 31,1920, he met with an accident in which the femur of his left leg was broken about three inches above the knee. It was an oblique fracture. The defendant was called to treat plaintiff and undertook to do so. He reached-the home of plaintiff about three-quarters of an hour after the accident and with the aid of two neighbors set the broken bone. He made two splints out of boards, wrapped them with cotton, put one on the outside of the leg and one on the inside and bound them with tape. He wanted to take plaintiff to the hospital but plaintiff did not want to go. He put plaintiff to bed and hung a weight to his foot. On June 2 defendant visited plaintiff and again urged him to go to the hospital; said, “You’ll be down there where I can take care of you a good deal better. You’ll have good treatment there,” and plaintiff consented. Defendant had an ambulance take him to the hospital, a distance of about four and a half miles over roads that were hilly. At the hospital he was put to bed in a room where there were three other patients, one of whom, Davy Schile, was being treated by defendant for a broken leg. The defendant came into the room soon after the plaintiff reached the hospital and put a weight — a sack of sand — on his foot but made no examination of the fractured leg and did nothing for it, though plaintiff was suffering pain. Defendant saw plaintiff every two or three days while he was at the hospital but made no examination of his leg and did nothing for it on any of these occasions. On one occasion, while he was at the hospital, the defendant said he had taken an X-ray picture of Davy Schile’s leg (there was an X-ray machine in the hospital) and plaintiff asked defendant to take an X-ray picture of his leg and defendant replied, “We don’t need an X-ray picture of your leg. We know your leg is all right.” Plaintiff remained in the hospital until June 27, at which time he wanted to go home and de fendant consented. During that time the splints which had been placed on his leg at first had never been removed or adjusted. On that day defendant removed the splints and bandages, examined the leg and pronounced it all right, bathed it in alcohol and put the splints back on. The leg felt better to plaintiff and he thought it was all right and told the defendant so. At that time he couldn’t stand up. He was taken home in an automobile, carried into the house and put to bed, where he was confined for several weeks. On July 15 defendant visited him, removed the bandages and examined the leg. It looked crooked and plaintiff spoke to defendant about it and defendant said, “Yes, it is a little bit, but that little bit won’t hurt you.” Defendant put a plaster of Paris cast on the leg and told plaintiff he was going away for a month on a vacation; that the plaster of Paris cast might hurt him and if it did to take his knife and cut it off, “You know how I did Davy’s leg,” and put the splints back on. The plaster of Paris cast did hurt plaintiff and after leaving it on about eight days he cut it off and he and his sister put the splints back on. Plaintiff’s sister took him in a buggy to see defendant at his office after his return from his vacation and talked with him about his leg. Defendant did nothing for his leg at that time, but said, “Now, your leg is all right. All you need is just a little time.” Plaintiff went with Fred George to defendant’s office again in about two weeks and told defendant that he didn’t think his leg was all right; that he thought something was wrong with it. Defendant came up and grabbed hold of the leg and said he couldn’t see anything wrong with it. “It is all right. You just don’t get in too big a hurry.” That was about three and a half months after the accident. He saw the doctor at his office about two weeks afterward. He was then using crutches. The .doctor again told him his leg was all right; that he was in too big a hurry and that he should go home and be still and that he would get all right. At that time the doctor examined his leg but did not give any prescription. He saw the doctor again in January, 1921, at his office and he told the doctor that he could rent a little place if he was going to be able to do anything. The doctor told him that was the best thing that he could do; that he could not plow all day, of course, that he would have to stop and rest, but that he could do “right smart.” Plaintiff rented the place but was unable to do any work. When he tried to walk on his leg it would not hold him up, was not strong enough. The leg was not straight. His knee would fly out of place, first one way and then the other. He had not been able to get around without crutches. He had suffered pain more or less since it was broken. He tried to hoe in the garden but had to hop around on one foot.
Dr. W. C. Chaney, a physician who had been engaged in the practice of medicine at Independence for more than nineteen years and for the last three and one-half years had been specializing in X-ray, on August 17,1921, took two X-ray pictures of plaintiff's left femur, one a front view, the other a side view. The pictures were offered in evidence. These showed that the break was a long, diagonal break; that the ends of the bone overlapped something over an inch, —an inch and one-eighth to an inch and a quarter — and that the leg was not straight, being out of alignment ten to twelve degrees. He identified Figure 224 in Gray’s Anatomy, a standard authority, as a fair likeness of the femur in its natural state and this was offered in evidence. The doctor testified that the X-ray was used in diagnosing many conditions and is used and perhaps has been used longer in diagnosing fractures or bone conditions. Under general conditions when a patient who has sustained a fractured bone arrives at the hospital it would be a proper practice to make an X-ray examination. “Of course, it was always the proper thing to take an X-ray, of course. I think that a doctor would want to take an X-ray of it if the hospital was equipped with an X-ray machine.” That the purpose in taking an X-ray of the fracture is to see that the bone is properly set in good apposition and good alignment. He was asked: “Q. Well, would you call it negligent practice if he did not take an X-ray picture? A. Have to know about the circumstances. Don’t think any doctor could give a thorough answer to that question unless he knew something of the circumstances of the case.” He then testified that if a man’s leg was broken and he was his patient and brought to a hospital that was equipped with an X-ray machine, his practice would be to take the X-ray of it from the two angles, if it was possible at all to get it, and that he would consider that the proper practice in Montgomery county, and further said that wooden splints or plaster of Paris casts would not interfere with the taking of the photograph, “and we could still get an outline of the bone very clearly” even with some metal splints. That in his practice he had sometimes got good results and at times had poor results, which he regarded as unavoidable. That in a man fifty- eight or nine years of age the fracture would heal much slower than in- a younger person, but that they can get a good union and do in a majority of cases. There is frequently a shortening of the length of the leg, but not always, and as a rule in older people the breaking of the femur results in a slight shortening. It would not be unusual for a man, say fifty-eight years of age, having an oblique fracture of the femur, to have a shortening of the leg anywhere from an inch to an inch and a quarter, and that sometimes results when a patient has had good treatment. That shortening is the result of the muscular contraction of the large muscles that extend from the pelvic region to the knee and around to and below the knee. He had not measured the plaintiff’s leg to determine how much, if any, shortening there was. He further testified that it was possible to set an oblique fracture and not have any shortening at all; that the open method of treating broken bones, in which they open down to the bone, lay back the periosteum, bring the bones together and fasten them with bone splints, or otherwise, is called “bone surgery” and of late years it has been the usual practice, after taking an X-ray of an oblique fracture, to treat them by the open method and fasten the ends together by some of the means which he described.
Dr. W. J. Gier, a physician of Independence, who had been in the practice of medicine for five years in that county, testified as follows:
“Q. Now, Doctor, if a man should sustain a fracture of the left femur three and a half inches above the knee and after the fracture had been reduced at his home, four days afterwards, he was removed to the hospital, where there was an X-ray machine, tell the jury whether or not you would consider it skillful or unskillful practice if the doctor in charge of his case failed to take an X-ray picture of the fracture? A. I would consider it proper to take his X-ray picture. In fact where it is accessible, I should consider it negligence not to take it.”
The foregoing is the substance of plaintiff’s evidence and the question is, should defendant’s demurrer thereto have been sustained?
The legal questions pertinent to this inquiry have been quite definitely settled by repeated adjudication. The relation between a physician or surgeon and his patient, implied in law, is that he possesses that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices or similar communities, having due regard for the advance in medical or surgical science at the time, and that he will use such learning and skill in his treatment of the patient with ordinary care and diligence. (Tefft v. Wilcox, 6 Kan. 46; Branner v. Stormont, 9 Kan. 51; Elwell on Malpractice, 63; English v. Free, 205 Pa. St. 624; Van Boskirk v. Pinto, 99 Neb. 164.)
In case of doubt as to which of two or moré courses is to be pursued, he must use his best judgment. (Paulich v. Nipple, 104 Kan. 801, 180 Pac. 771.) He does not guarantee good results, and no civil liability arises merely from bad results (Tefft v. Wilcox, 6 Kan. 46; Paulich v. Nipple, 104 Kan. 801, 180 Pac. 771; McGraw v. Kerr, 23 Colo. App. 163; Haire v. Reese, 7 Phila. Rep. 138; Sims v. Parker, 41 Ill. App. 284; Champion v. Keith, 17 Okla. 204), nor if bad results are due to some cause other than his treatment. (Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458.) But where he fails to possess ordinary learning and skill or fails to use ordinary care and diligence, and injury results therefrom, he is liable for the injury to the patient in a civil action for damages. (Petefish v. Morrison, 110 Kan. 709, 205 Pac. 651; Forman v. Surber, 113 Kan. 42, 213 Pac. 667.) These principles apply to diagnosis as well as to treatment thereafter. (Manser v. Collins, 69 Kan. 290, 76 Pac. 851.)
What is the proper treatment to be used in a particular case is a medical question to be testified to by physicians as expert witnesses; laymen, even jurors and courts, are not permitted to say what is the proper treatment for a disease or how a specific surgical operation should be handled. (Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458; Sly v. Powell, 87 Kan. 142, 123 Pac. 881; Stout v. Bowers, 97 Kan. 33, 35, 154 Pac. 259; Paulich v. Nipple, 104 Kan. 801, 180 Pac. 771; Snearly v. McCarthy, 180 Iowa, 81; Berkholz v. Benepe, 190 N. W. 800 [Minn.].) Results, if so pronounced as to be apparent, may be testified to by anyone. (Sly v. Powell, 87 Kan. 142, 123 Pac. 881.) And where negligence in the treatment is shown by medical witnesses and the evidence shows a bad result, it is the province of the jury to say whether the result was caused by the negligence. (Nickerson v. Gerrish, 114 Maine, 354; Viita v. Fleming, 132 Minn. 128; Knopp v. Thornton, 250 S. W. 853, [Ky.]; Wojciechowski v. Coryell, 217 S. W. 638 [Mo.]; Leone v. Booth S. S. Co., 178 N. Y. Supp. 620; Hoover v. McCormick, 247 S. W. 718 [Ky.]; Berkholz v. Benepe, 190 N. W. 800 [Minn.].) Many other authorities might be cited on the above propositions.
In considering a demurrer to evidence the court should take into consideration only those facts and inferences of facts which are favorable to plaintiff. (Can Co. v. Ross, 72 Kan. 669, 83 Pac. 616; Travis v. Simpson, 106 Kan. 323, 187 Pac. 684; Rosenfeld Co. v. Gleed, 110 Kan. 75, 202 Pac. 611.)
Applying these settled principles of law to the evidence, no question is raised that the defendant did not possess the requisite learning and skill. There is nothing to-indicate that the method used .in setting the broken leg at the farm was improper. The evidence showed that the proper practice, and hence ordinary care and diligence required, when plaintiff was brought to the hospital where there was an X-ray machine, an X-ray picture should have been taken, in fact, two should have been taken, one front view and one side view. The medical evidence would indicate that the X-ray had been used so long and so generally in diagnosing fractures or bone conditions and for the purpose of seeing if a fractured bone had been properly set and the ends of the bone were in apposition and proper alignment, that it should be used as a matter of course when available, and not to use it under such circumstances is negligence. The X-ray was not used, though available. The evidence further tends to show that if used it would have shown the actual condition of the fracture; the jury had before them X-ray pictures taken later which demonstrated how clearly such pictures show the condition of a fractured bone. The evidence further tended to show that the proper practice, which, in the advanced stage of medical science had been in general use in Montgomery county for several years, when the X-ray pictures showed an oblique fracture of -a bone, as in this case, was to treat it by the “open wound” method of bone surgery. This was not done. All of this indicates that defendant did not use ordinary care and diligence in diagnosing the fracture nor in examining the broken leg, nor in using the proper method of treatment after he was taken -to the hospital, where he had been taken at defendant’s request in order that he might have better care and treatment. The evidence also discloses that there was a poor result. The X-ray plates showed that the broken ends of the bone were not in apposition but overlapped more than an inch, and indicated that the jagged ends came in contact with the flesh, and were not in alignment by as much as ten or twelve degrees. The evidence also showed that the leg was practically useless and had been since the accident to the time of trial in June, 1922. Other items of evidence favorable to plaintiff might be pointed out but these are sufficient to require the submission of the case to the jury. Some inferences favorable to defendant might be drawn from the evidence but these could not be considered by the court on a demurrer to the evidence. See, also, Wingfield v. McClintock, 85 Kan. 207, 113 Pac. 394; and Rainey v. Smith, 109 Kan. 692, 201 Pac. 1106.
.Passing the demurrer, there is not much favorable to the defendant in the evidencé. On the witness stand defendant did not controvert the evidence of plaintiff’s medical witnesses as to the proper method of treating the broken leg; neither did he contend that he exercised his best judgment in pursuing one of two or more approved courses of treatment. These questions are practically out of the case. His testimony was to the effect that he wanted to take an X-ray picture and talked to the plaintiff about it on two or more occasions and urged that it be done. On this controverted question the jury made a special finding to-the effect that plaintiff had asked defendant to take an X-ray picture of his leg and that defendant refused. This special finding and the general verdict for plaintiff approved by the court settled that controversy. The evidence offered by defendant brought out more clearly that the X-ray was needed as a part of the diagnosis; that if used it would have shown the condition of the fractured bone and that there was a well equipped X-ray machine at the hospital within twenty feet of plaintiff’s ward.
Appellant contends that the court erred in permitting Doctor Gier, in answer to a hypothetical question, to give it as his judgment that it was negligence not to use the X-ray, and cites Insley v. Shire, 54 Kan. 793, 39 Pac. 713, where the court held it error to admit in evidence the opinion of a witness as to whether or not a person had exercised due diligence, but that holding was because that case was not one in which the evidence could be established by expert witnesses (p. 804). In this case the negligence of the treatment must be shown by expert witnesses. (See Hoskinson v. Smyser, 95 Kan. 568, 148 Pac. 640.)
Appellant complains that the court refused to give instructions requested, the first of which requested a peremptory instruction for defendant. Since, as we have seen, there was evidence to go to the jury, the court could not give that instruction. “If the demurrer to plaintiff’s evidence could not be sustained, a verdict against her could not be directed.” (Stout v. Bowers, 97 Kan. 33, 36, 154 Pac. 259.) The next was to the effect that the defendant was not obligated to take an X-ray picture of plaintiff’s leg unless plaintiff requested the same and tendered the cost thereof. This was properly refused. The evidence is that it was the proper treatment to take the X-ray picture if facilities were available. Hence it was the duty of the defendant to take it without request and under the evidence of both plaintiff and defendant the question of pay did not enter into it. It may be doubted whether plaintiff would be required to pay in advance for the use of an X-ray any more than he would for the use of any surgical instruments or appliances or for bandages, but that need not here be decided. The other instructions requested were either given in substance or were not applicable to the testimony in the case.
Appellant complains of instructions given, especially instruction No. 12, which reads as follows:
“You are instructed that human, health and life is a valuable and important thing, not to be slighted and neglected by a doctor when he once assumes its care and treatment, and no doctor in that relation has the right to be neglectful of his patients. In other words, it is the bounden duty of a physician and surgeon, when treating and caring for a sick or injured patient, to bring to bear upon the case all his learning, skill and best judgment and use in and about such treatment the caution, care and skill usually employed in like cases by learned and skilled doctors in the community in which he practices his profession.”
This instruction is open to the objection that it requires the physician to bring to bear upon the case “all his learning, skill and best judgment,” for no one, whether he be physician, lawyer, mechanic, or athlete, can always be at his best, but the latter part of the same sentence requires only that the physician use in his treatment the caution, care and skill usually employed in like cases, and this is the correct rule. As we have heretofore pointed out, the defendant in this case did not contend that he had used all his skill and learning or that he had even used what was shown, without controversy, to be the proper and ordinary treatment. Had the defendant shown, or attempted to show, that the treatment he used was the ordinary and proper treatment, and then the court had, by its instructions, required him to bring to the case a higher degree of learning and skill, there would be more merit in his objection. Though the instruction is not approved, as tending to place upon the defendant a higher degree of the use of his learning and skill than the law re quires, it is not regarded, under the facts in this case, as being sufficiently erroneous to require a reversal. This instruction is also objected to because of the first sentence in it, but this is a correct statement of the law. 3 Blackstone’s Commentaries, p. 122, says:
“Injuries affecting a man’s health are, where by any unwholesome practices of another a man sustains any apparent damages in his vigor or constitution, as, by . . . the neglect or unskilled management of his physician, surgeon or apothecary. For it hath been solemnly resolved that male praxis is a grave misdemeanor and offense at common law, whether it be for curiosity and experiment or by neglect; because it breaks the trust which a party has placed in his physician and tends to the patient’s destruction.”
Other instructions are criticised but need not be especially noted.
Finding no material error in the case the judgment of the court 'below is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
J. R. Russell sued J. R. Newman and C. F. Young, physicians and surgeons, for malpractice, alleging that after removing his right kidney on May 30, 1919, they had negligently left within the incision a surgical gauze, sponge four or five inches long and about an inch and a half in diameter, which remained there without discovery until August 7, 1919. A verdict was rendered in favor of the plaintiff, awarding him, however, only one dollar. He appeals, relying upon the proposition that inasmuch as the verdict necessarily amounted to a finding of negligence, the failure to allow him substantial damages showed passion and prejudice on the part of the jury and was contrary to the evidence.
Where a wrong is found to have been committed which obviously resulted in substantial injury, a verdict fqr merely nominal damages is not allowed to stand. This rule has been applied in an action for assault and battery (Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322), and in one for the alienation of affections (Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027).
Here the jury obviously concluded that the sponge was inadvertently and negligently left within the incision, but that no actual injury resulted from it. One of the defendants testified that he did not intend that any sponge should remain in the incision after June 4; that he would not have left one in if he had known it was there; that all ought to have been taken out then; that if he had known it was there hé would certainly have taken it out. There were conflicts in the evidence. The plaintiff testified that when he left the hospital on June 18 he was told he was ready to go home; that neither of the defendants said a word to him about returning, and that he was given instructions for his own treatment. According to the defendants’ evidence, when he left on June 18 he was told to return within a week or ten days for examination, and promised that he would, but failed to do so. This dispute must be regarded as having been settled in favor of the defendants, so that any consequences of the incision going without examination after June 18 may be attributed to his own failure to follow instructions. The plaintiff’s evidence affirmed and the defendants’ denied that when the sponge was removed it had a foul odor. The plaintiff described his condition and feelings before and after the operation and before and after the removal of the sponge, telling of various pains and symptoms which he attributed to its presence. He introduced medical evidence tending to support his contention in that regard, but against this the defendants produced the testimony of themselves and of other doctors that the leaving of the sponge within the incision was not likely to cause any injurious results, and that whatever unfavorable conditions afterwards manifested themselves were not attributable to its presence — on the contrary, that it was of actual benefit in promoting the healing process and hastening a recovery from the effects of the operation. Extracts from this testimony follow:
“We did not open the abdominal cavity. . . . We left an opening in the incision big enough to stick in four or five homostats and four pieces of gauze. . . . This gauze remaining in this incision, I am sure, did not injure the patient. . . . The leaving of the sponge in the incision did not damage but assisted in healing the wound. . . . We left the wound open for the purpose of drainage. . . . The wound begins to heal at the bottom, but if you don’t put something in there, it won’t, so we put something in there for drainage. Sometimes we use gauze and sometimes rubber tubes, and sometimes rubber strips, but almost always gauze. As long as the wound is open the gauze will not injure the patient. ... It always will [work out] if your wound is open. . . . The keeping of this wound open after the operation tended to drain the poison out of the wound. ■ The system couldn’t and wouldn’t absorb the poison. It was not necessary that the sponge be anchored to the outside. I have packed and repacked sponges in wounds for a longer period than- sixty-nine days. If the sponge is sterilized it don’t hurt anything. You couldn’t expect the patient to get well in a couple of months. If he gets well in a year lie does very well. In my opinion, knowing how long it takes kidney wounds to heal up, I think this really hastened the healing. It didn’t hurt him any, not at all. ... It made more granulations and healed that mueh faster and the formation of this greater amount of pus was not a drain on the system.”
“The pus was still discharging when I took the sponge out on the 8th of August. It had the ordinary smell. There was no fecal odor about it at all. There could have been no such odor. There was no place for it to come from. We expect an incision like that to discharge pus for about three months as a general rule. We have known them to do so as long as a year. The result of leaving gauze in there is that the wound probably healed faster. It helped to drain.”
“No injury could have come, to the patient from this gauze. . . . The fact that this gauze stayed in the wound from May 30 to August 7 would do no harm in this case. The existence of foreign bodies would not necessarily cause any additional burden on the other kidney, because there would be no absorption from the foreign body on account of the granulated wall built up around it. The increased amount of granulation was protection and healing.”
“This sponge could not have hurt the patient. The injury to his system came before the operation, not afterwards.”
The rale that the testimony of witnesses skilled in medicine and surgery is necessary to determine whether specified acts constitute malpractice is subject to some-qualification. For instance, it is said: “Probably the most common instance of malpractice which is brought into the courts arises out of surgical cases where the physician or attendant has left a sponge in the wound after the incision has been closed. That this is plainly negligence there is no doubt at all, and it matters not at all that many physicians testify that the best of surgeons sometimes leave a sponge or some other foreign substance in the bodies of their patients, for this is testimony merely to the effect that almost everyone is at times negligent.” (21 R. C. L. 388.) In a recent case having some features in common with the present one the court said: “Jurors of ordinary intelligence, sense and judgment, although not skilled in medical science, are capable of reaching a conclusion without the aid of expert testimony as to whether it is good surgery to permit a wound to heal superficially with nearly half a yard of gauze deeply imbedded in the flesh, and likewise'are capable of determining whether or not injurious consequences of some character would probably result. The exact nature and extent of the evil consequences resulting therefrom, of course, laymen would not be competent to determine without the aid of medical science.” (Walker Hospital v. Pulley, 74 Ind. App. 659, 664.)
The verdict rendered was an inconsistent one. If no injury was done the plaintiff there was no justification for awarding even nominal damages against the defendants. They ought not to be penalized for doing the proper thing, even though they did it unintentionally. Notwithstanding the testimony of physicians to the contrary, the court is of the opinion that if, as the jury must be deemed to have found, the defendants negligently left the sponge in the incision where it remained undiscovered from May 30 to August 7, substantial injury to the patient must have resulted, and therefore a verdict for merely nominal damages should not be allowed to stand.
The judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal by the defendant, Rex D. Nelson, from an order of the district court denying his motion for discharge prior to imposition of sentence after having been convicted of the offense of first degree robbery.
The sole question for determination is whether or not the district ■court, by failing to pronounce sentence within five days after overruling defendant’s motion for new trial, lost jurisdiction to impose sentence at a later date.
K. S. A. 62-1723 provides in part:
“. . . If the motion for a new trial is overruled, sentence shall be imposed within five days. . . .” (Emphasis added.)
Defendant was found guilty by a jury of the offense of robbery in the first degree. A motion for new trial was timely filed, argued, and overruled on October 17, 1966, and the matter of sentencing was continued until October 27 for presentence investigation and report. Defendant, in the meantime, was committed to the county jail. On the date set for sentencing, the court was engaged in a jury trial, and no action was taken. Defendant filed a motion for discharge on October 28 because the court had failed to impose sentence within five days after the date the motion for new trial was overruled. The motion was heard and denied on October 31. Defendant thereupon was sentenced to the penitentiary under the habitual criminal act (K. S. A. 21-107a); however, the sentence was made effective as of August 2,1966.
Defendant asserts the provision of the statute is mandatory, and that the district court, by failing to impose sentence within five days after overruling defendants motion for new trial, lost jurisdiction. The state, on the other hand, contends the statute is directory only and the district court properly ruled it had jurisdiction to impose sentence.
Refore the enactment of K. S. A. 62-1722 [Now K. S. A. 1967 Supp. 62-1722] and K. S. A. 62-1723, which specify the time limitations for imposition of sentence, a court fulfilled its duty of pronouncing sentence after a plea, or finding, of guilty by imposing sentence “within a reasonable time in the due and orderly course of business.” (In re Terry, 71 Kan. 362, 80 Pac. 586.) Postponement of of sentence was permissible in order for the court to consider post trial motions or gain information for the purpose of determining a just and appropriate punishment (In re Beck, 63 Kan. 57, 64 Pac. 971; In re Strickler, Petitioner, 51 Kan. 700, 33 Pac. 620), and the fact that sentence was not imposed until after the expiration of the term did not divest the court of jurisdiction to pronounce sentence at a later date (City of Lawrence v. Kagi, 105 Kan. 520, 185 Pac. 60). These early decisions were in accord with a substantial number of jurisdictions throughout the country (Annos. 3 A. L. R. 1003 and 97 A. L. R. 802).
As a corollary to the principle that the sentencing court had a duty to impose sentence within a reasonable time after conviction, it was recognized as being within the court’s power to postpone sentence so long as imposition thereof was, in fact, contemplated in the future (State, ex rel., v. Sapp, 87 Kan. 740, 125 Pac. 78); however, the court was not empowered to suspend imposition of sentence as a disciplinary measure with the understanding that sentence might or might not be subsequently rendered, depending on the good behavior of the defendant. In such instance jurisdiction of the case was lost and a valid sentence could not thereafter be pronounced. (State, ex rel., v. Sapp, supra; In re Beck, supra.)
Under existing statutory law, when a defendant pleads guilty, or is found guilty, the district court may order a presentence investigation by a probation officer (K. S. A. 62-2238). Unless the defendant announces that he desires to file a motion for new trial, he is to be sentenced within ten days; or upon his request, sentencing may be extended for a period of not to exceed thirty days, pending the preparation of a presentence report (K. S. A. 1967 Supp. 62-1722). If he announces his intention to file a motion for new trial, and said motion is timely filed, heard and overruled, sentence is to be imposed within five days (K. S. A. 62-1723). The statutes further authorize the district court, inter alia, to suspend the imposition of sentence and release the defendant on probation (K. S. A. 1967 Supp. 62-2239) under specific conditions (K. S. A. 62-2241). This power is designed to give the defendant the opportunity to rehabilitate himself while remaining at large. Upon violation of any of the conditions of probation, the court may revoke probation and impose any sentence which might originally have been imposed (K.S. A. 62-2244).
By the provisions of the foregoing statutes the sentencing court is given wide latitude in disposing of a criminal prosecution after conviction. If after denial of a new-trial motion imposition of sentence were suspended and defendant placed on probation and the conditions of probation later violated, it would be absurd to argue that the court had lost jurisdiction to impose sentence simply because more than five days had elapsed from the time defendant’s motion for new trial had been overruled. In other words, were the five-day provision of K. S. A. 62-1723 construed to be mandatory, the end result would be that a court would never suspend imposition of sentence because of its lack of power later to impose sentence in the event there was a violation of the conditions of probation. Such an interpretation would, in our opinion, seriously emasculate the spirit and tenor of our code of criminal procedure with its broad powers of disposition.
Qur belief that the statute is directory rather than mandatory is further buttressed by well-recognized rules of statutory construction to which we will briefly refer. When the legislature prescribes a time when an official act is to be performed, the broad legislative purpose is to be considered by the courts whenever they are called upon to decide whether the time prescribed by statute is mandatory or directory. Provisions intended to secure order, system and dispatch in the mode of proceeding by public officials, and by a disregard of which parties cannot be injuriously affected, are not regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. (Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P. 2d 124, and cases therein cited.)
In State v. Fedder, 1 Utah 2d 117, 262 P. 2d 753, a case involving a statute which provided sentence was to be pronounced not less than two days nor more than ten days after conviction, it was stated:
. . the time fixed by the statute is not jurisdictional, . . . and since it is regarded as merely directory the further provision that the judgment should be rendered within a reasonable time has been judicially read into the statute. . . .” (p. 120.)
After noting the sentencing court was authorized by statute to suspend imposition of sentence and place the defendant on probation “for such period of time as the court shall determine,” the Utah supreme court held:
“. . . The clear meaning of the words of the statute give[s] the court the power to withhold sentence until such time as the court determines whether or not the prisoner is capable of rehabilitation. ... In this case, the withholding of final judgment was not unreasonable within the interpretation of the judgment statute, . . .” (p. 120.)
Also, see Wilson v. Brodie, 148 Mont. 235, 419 P. 2d 306.
The purpose of the time limitation provided for in K. S. A. 62-1723 is to prevent prolonged, unreasonable delay in the sentencing of a defendant after his motion for new trial is overruled. The fair import of the statute, when construed with the other provisions previously discussed, leads to the conclusion that the statute is merely directory, not jurisdictional, and a valid sentence may be imposed within a reasonable time after the denial of a motion for new trial. In the instant case the delay was not unreasonable, and although more than five days had elapsed after the defendant’s motion for new trial was overruled, the court had jurisdiction to impose sentence. We wish to emphasize that even though the defendant was given credit for time spent in jail following his arrest and pending disposition of the case (K. S. A. 62-1533), this was not a factor in our determination of the jurisdictional question before us.
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The opinion of the court was delivered by
Feomme, J.:
An action was filed for personal injuries received in a car accident. A jury returned a verdict against the defendant Nancy Lower. She has appealed.
The defendant on appeal concedes negligence and directs her argument to five alleged trial errors as they may relate to damages. The facts surrounding the injury can be highly summarized.
The plaintiff, Verner T. Tucker, was working for the city of Sublette when the accident occurred. He was helping to lay water lines north of an east-west county road and was standing near a water line ditch. Another road from the south connected with the east-west road to form a “T” intersection. Defendant approached from the south and drove her car through the intersection, across the east-west road, over a three-foot pile of dirt, across the water line ditch and struck plaintiff in the back. Defendant received a serious back injury. He claimed damages in the amount of $61,-871.79. The jury awarded a verdict of $35,621.79.
The first trial error urged upon this court arises by reason of limitations placed upon the cross-examination of plaintiff.
Plaintiff had been convicted of various crimes over a period of thirty-one years preceding the trial of the damage action. From June 1963 to October 1965 he had been convicted of drunkenness on five different occasions. During this same period he had been convicted of reckless driving, allowing an unauthorized person to drive his automobile and having an open bottle in his car.
In 1964 he was convicted of stealing a package of bacon from a supermarket. In 1960 he was convicted of petty larceny in Colorado and in 1955 of receiving stolen property in Illinois. In 1945 he was convicted of stealing a tire in Illinois and in 1934 he1 was convicted of assault with a deadly weapon. He was charged with stealing tools from a service station in North Dakota but the date of this incident is not shown in the record.
After plaintiff had testified in support of his cause of action for damages the defendant attempted to question him concerning these convictions. The trial court permitted cross-examination as to plaintiff’s conviction in Illinois in 1945 for stealing a tire. For this crime plaintiff had been sentenced to the state penitentiary in Illinois for one to three years. The penalty imposed for the crime made it a felony and the trial court admitted the evidence.
Attempts to question the plaintiff on the other convictions were unsuccessful. The evidence of these convictions was either stricken from the record when it was determined they amounted to misdemeanors or the defendant was precluded from questioning plaintiff concerning them. The evidence of convictions was sought for the purpose of impairing credibility.
Our former statute (G. S. 1949, 60-2801) was changed by the legislature in 1963. Our present code was in effect when this case was tried.
K. S. A. 60-420 provides:
“Subject to sections 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct solely for the purpose of supporting his credibility.”
K. S. A. 60-421 provides:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.”
K. S. A. 60-422 in pertinent part provides:
“As affecting the credibility of a witness . . . (c) evidence of traits of his character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.”
These codified rules of evidence relate to examination of a witness during the trial when his credibility is questioned. The issue is credibility and it is collateral to the main issues in the case.
At common law a person convicted of an infamous crime was incompetent to testify as a witness. (98 C. J. S., Witnesses, §507 [a].) The common law rule was changed in Kansas to permit a person who had been convicted of a crime to testify but proof of such crime was permitted only as affecting credibility. (G. S. 1949, 60-2801.) Our present statute limits evidence of convictions to impair credibility to those crimes involving dishonesty or false statement. This limitation is new. No cases on this particular subject are cited in the briefs and our research discloses none.
The recent codification of the rules of evidence in Kansas appears to be an outgrowth of the work of The National Conference of Commissioners on Uniform State Laws. K. S. A. 60-421 and 60-422 are identical in wording to Rules of Evidence 21 and 22 approved by the commissioners in 1953. (See 9A U. L. A. pp. 607, 608.) Kansas appears to be the only state which has adopted these rules of Evidence. (See 9A U. L. A. p. 589.) Therefore we have no law from other states to guide us in determining when a crime involves dishonesty or false statement.
Some states limit the use of convictions for determining credibility of a witness to crimes generally. Others limit it to infamous crimes. Infamous crimes are treason, felony and the crimen falsi. At common law it was the nature of the particular crime which determined whether it fell in the latter classification and was inherently bad. Some states have adopted the rule that crimes involving moral turpitude are worthy of testing credibility. But in all of these various terms we find a vague and uncertain meaning which plagues the courts. (See 6 Jones on Evidence, 2d Ed. § 2441.)
An extensive and well written article on the subject of previous conviction of a crime as a test of veracity appears in 89 University of Pennsylvania Law Review pp. 166, 174.
The Advisory Committee Notes aid in construing the purpose and meaning of these changes. With reference to K. S. A. 60-421 they read as follows:
“This section takes the logical view that evidence of previous conviction of a crime does not reflect on the credibility of the witness unless the crime involved dishonesty or false statement. It cannot be logically inferred, for example, that a person who has committed a crime of passion would perjure himself on the witness stand. . . .” (Gard — Kansas Civ. Proc. § 60-421, p. 392.)
The word “crime” by statutory definition (K. S. A. 21-128) includes both felonies and misdemeanors. K. S. A. 60-421 provides that evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. There appears no limitation except the crime must involve dishonesty or false statement. The statute does not distinguish between felonies and misdemeanors. The exclusion of such evidence on the ground it related to a misdemeanor was error. Admissibility is not based on the penalty imposed for the crime. It is based upon whether it involves dishonesty or false statement.
The dictionary (Webster’s, Unabridged, 3d Ed.) defines dishonesty as a lack of honesty, probity or integrity in principle; lack of fairness and straight forwardness; disposition to defraud, deceive or betray. When you add to “dishonesty” the words “false statement” you enlarge the category of crimes permitted to test credibility to those perpetrated by the use of fraud, deceit, perjury, trick or false statements.
With this background let us examine the crimes with which we are here concerned to determine if they fall outside the boundary prescribed by the statute.
Drunkenness, reckless driving, allowing an unauthorized person to drive and having an open bottle in the car are not generally considered to be crimes of an inherently bad nature. They are considered mala prohibita. They do not evidence dishonesty as that term is understood and no false statement, fraud, deceit or trick is associated with them. We hold these crimes fall within the ban of the statute and are inadmissible for the purpose of impairing the credibility of a witness. Convictions of these specific crimes should have been excluded from evidence. It was not prejudicial to exclude them merely because a wrong reason may have been given for doing so.
The crime of larceny, or of participating therein by knowingly receiving stolen property, generally involves a wilful injury to another person or his property and a considered disregard for such injury. To steal is understood to be dishonest, shows a lack of integrity in principle and a lack of fairness. Therefore convictions of larceny and receiving stolen property, regardless of the penalty imposed, are admissible to impair the credibility of a witness. Exclusion on the ground the conviction related only to misdemeanors was error. The penalty imposed for a crime is not the basis for exclusion.
The question remains as to whether from the record it affirmatively appears the error prejudicially affected the substantial rights of the parties. (See K. S. A. 60-2105.)
This is a civil action for damages where negligence is conceded on appeal. The plaintiff received a broken back and his testimony was not the sole source of truth on any issue of the case. The medical testimony of the three orthopedic surgeons was extensive on the nature and extent of the injury, pain and suffering, present and future medical expense and permanent injury. There was little conflict in the medical testimony. Income tax reports were introduced to evidence earnings. The evidence on primary issues in the case was not restricted by limiting the cross-examination of plaintiff. The sole purpose of this questioning was to impair his credibility as a witness. The jury was informed by the evidence that plaintiff had been convicted of grand larceny in Illinois and that he was sentenced from one to three years for the crime. The trial court did permit his credibility to be impaired to this extent. The jury was not without information of plaintiffs conviction of crime.
In State v. Warner, 129 Kan. 360, 282 Pac. 735, the court said: [Syl. ¶1].
“The extent to which a trial court may permit the cross-examination of a witness in respect to matters not connected with the case for the purpose of affecting his credibility is a matter that rests largely in the sound discretion of the court.”
(See also Lewis v. Montgomery Ward & Co., 144 Kan. 656, 662, 62 P. 2d 875; Gant v. Gas Service Co., 156 Kan. 685, 687, 135 P. 2d 533; Sanders v. Sitton, 179 Kan. 118, 121, 292 P. 2d 1099; In re Estate of Roberts, 192 Kan. 91, 100, 386 P. 2d 301.)
A ruling on the relevancy of evidence, based upon remoteness, ordinarily rests in the discretion of the trial court and will not be reversed unless it clearly appears the ruling constituted an abuse of sound judicial discretion. State v. Schuman, 151 Kan. 749, 751, 100 P. 2d 706.)
An additional reason exists why the trial court must have, and should exercise, sound discretion in this area. The court should prevent a trial from going off on tangents of relative unimportance as apparently was the case in Tersina v. Insurance Co., 102 Kan. 87, 169 Pac. 559, where it was said: [p. 91].
. . After his denial of the commission of the supposed offense, other witnesses were then called for the purpose of showing that he was guilty and the real issues of the case for a time were lost sight of and the plaintiff was tried for a public offense. This was unwarranted inquiry and one likely to have prejudiced the plaintiff. (40 Cyc. 2627.)”
Under the circumstances of this case as shown by this record the error in limiting the cross-examination of the plaintiff does not affirmatively appear to have prejudicially affected the substantial rights of the defendant.
Defendant’s second claim of error is based upon restrictions placed upon his opening statement. He was directed to refrain from comment upon plaintiff’s character and criminal convictions. This limitation by the court was proper since these matters were not within the issues formed by the pleadings. The trial court has discretion to limit the opening statements of counsel within the bounds of propriety and the issues formed by the pleadings. (Miller v. Braun, 196 Kan. 313, 411P. 2d 621.)
Appellant next contends it was error for the trial court to deny defendant the right to cross-examine plaintiff on the number of days he spent in jail during the previous year as this would affect his earning capacity.
Such evidence might have some probative value to indicate lack of earning capacity. A man in jail cannot have normal earning capacity. The proffer of evidence as to jail residence covered time spent for conviction of drunkenness, permitting an unauthorized person to drive and having an open bottle in his car. The trial court excluded the evidence on the grounds that it was irrelevant, immaterial and prejudicial.
The jury allowed $8,000.00 for all present and future loss of wages. Plaintiff was 62 years of age. Evidence of earnings was introduced in the form of plaintiff’s income tax reports. As to those periods of residence in the jail after plaintiff was injured the evidence would not have probative force on lack of earning capacity. The doctors and others testified after the accident and up to the time of trial plaintiff was unable to work because of his injuries. The probative force of this evidence had to be weighed along with the prejudicial effect which might have resulted from permitting cross-examination to indirectly establish conviction of crimes which had been properly excluded from evidence (drunkenness, etc.).
Again this is cross-examination of a witness where the trial court has reasonable discretion. Any technical irregularity does not appear to have had prejudicial effect upon the substantial rights of defendant.
Defendant next contends it was error to exclude evidence to show plaintiffs physical condition while in the Seward county jail.
Appellant proffered evidence by the sheriff covering three different periods of time when plaintiff was incarcerated in jail after the accident. This evidence was offered by defendant for the alleged purpose of showing plaintiff’s physical condition after the accident. In the proffer of evidence the sheriff testified the plaintiff evidenced only slight physical disability.
In actions for personal injuries appearance, action and conduct, as indicating health or lack of it, are relevant and such ordinary indications may be testified to by any competent person who was in a position to observe and know. (Betterment Co. v. Reeves, 77 Kan. 111, 93 Pac. 627; Ewing v. Street Railroad Co., 91 Kan. 388, 137 Pac. 940.)
If the evidence was offered for this purpose as stated by the defendant it would be admissible even though it might have a tendency to prejudice the defendant in the eyes of the jury. (29 Am. Jur. 2d, Evidence, § 260.)
However, an affidavit of the sheriff was submitted by plaintiff at the argument on a motion for new trial. The affidavit varied substantially from the oral testimony proffered during the trial. The affidavit indicates that while in jail plaintiff complained of pain and suffering, requested a physician on numerous occasions and that he was given medication on a regular basis to ease his pain. It appears that the sheriff’s testimony affecting damages would not have been favorable to defendant and its exclusion is not reversible error. (Jukes v. North American Van Lines, Inc., 181 Kan. 12, 23, 309 P. 2d 692.)
Appellant next contends the jury’s verdict was excessive and the court erred in not ordering a remittitur or a new trial on the issue of damages.
Evidence on the nature and extent of plaintiff’s injuries, medical expense and pain and suffering was received from three orthopedic surgeons and from the plaintiff and two other persons. A large part of the testimony was not in serious dispute. As a result of this accident plaintiff sustained a serious and severe orthopedic injury to the first and second lumbar vertebrae. He was hospital ized for several months and during that time was placed in a body cast. Later he was fitted with a brace and was wearing it at the time of trial. Plaintiff was 62 years of age at the time of his injury and will be unable to work because of the injury unless he has major surgery and successfully receives a spinal fusion. Plaintiff stated that he was afraid of the operation and would not consider taking the risks involved.
There was other testimony which was in dispute, at least indirectly, to the effect that plaintiff has been in constant pain since the accident and needs help in dressing and caring for himself. Plaintiff testified he could not walk naturally, is unable to bend over, has lost all sensation of bowel movements and cannot sleep more than two hours at a time. He is on regular medication for pain.
The verdict awarded in this case totaled $35,621.79 and included $3,621.79 for past and future medical care which included the expense of a spinal fusion.
There is no exact yardstick by which pain and suffering can be measured and the various factors involved are not capable of proof in dollars. For this reason the only standard for evaluation is such amount as twelve reasonable persons estimate to be fair compensation when that amount appears to be in harmony with the evidence and arrived at without passion or prejudice.
What this court said in Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567, is equally applicable here.
“We cannot accept defendants’ suggestion the verdict was so excessive as to indicate passion and prejudice on the part of the jury, and thus required a remittitur. The evidence already detailed adequately demonstrates the nature and extent of the plaintiff’s injuries and his resultant damages. The rules for testing a verdict when challenged as being excessive were stated in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, and have been consistently adhered to in many of our subsequent decisions (e. g., Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438; Kettler v. Phillips, 191 Kan. 486, 382 P. 2d 478; Slade v. City Cabs, Inc., 193 Kan. 105, 392 P. 2d 127).” (p. 792)
Appellant’s final point is that the court erred by refusing to give the instruction requested by the defendant concerning mitigation of damages. There was evidence that if plaintiff would agree to a spinal fusion and if the spinal fusion was successful he might be relieved of pain and be able to work again.
In view of the answers of the jury to special questions we do not need to concern ourselves with this requested instruction. Special question No. 4 was submitted and answered by the jury. It reads:
“4. If you find for the Plaintiff, and allow an amount for past and future earnings, is such amount based on what he would lose without a spinal fusion or what he would lose if he had a spinal fusion with the results estimated by the medical testimony in this case?
“Answer: With a spinal fusion.”
The award of damages was clearly arrived at by the jury on the basis of a successful spinal fusion. Damages were mitigated by the jury. Regardless of the propriety of such mitigation of damages defendant cannot be heard to complain of failure to give her instruction thereon.
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The opinion of the court was delivered by
Kaul, J.:
This is an action by plaintiff-appellee, Buell Scott, to recover the purchase price of a used irrigation pump and accessories from defendant-appellant, Delmar Keyse, a/k/a D. C. Keyse. The case was tried to a jury in the lower court and a verdict was rendered for Scott. Keyse perfected this appeal after his motion for a new trial was denied below.
The sole question on appeal is whether the trial court abused its discretion in overruling Keyse’s motion for a continuance immediately before the trial of the action.
All dates mentioned herein are in the year 1965.
For many years Scott has been engaged in the business of dealing with irrigation pumps in Johnson, Kansas. Keyse lives in Scott County and in the spring of 1965 came to Johnson to negotiate with Scott for the purchase of a used irrigation pump. On May 5 the parties agreed on the sale of a used pump, gear drive, and a Watson Spicer shaft for a total price of $1,250. Keyse gave Scott a draft for the purchase price on the Garden City Production Credit Association. The pump was installed in Keyse’s well. It worked satisfactorily for about two or three weeks then a rattle de veloped and Keyse pulled the pump on June 18, after it had been in service for about three or four weeks. Keyse stopped payment on the draft. A trade for a new pump was discussed by Scott and Keyse. Keyse claims an agreement was made and later breached by Scott. Scott claims the second agreement was never consummated.
On July 29 Scott filed this action in the district court of Stanton County. In his petition Scott prayed for judgment on the unpaid draft and for bank protest fees. Service on Keyse was obtained in Scott County on August 3. After securing a ten day extension of time to plead, Keyse filed his answer and counterclaim on September 1 and requested a jury trial. Keyse, as a defense, pleaded misrepresentation and a breach of contract, and in his counterclaim asked compensatory damages for loss of crops, breach of the second agreement, and punitive damages totaling $14,042.50. Scott filed his answer to the counterclaim asserting the used pump had been sold in an "as is” condition. Scott further alleged that he notified Keyse by telephone and letter that the trade deal was not accepted. A copy of Scott’s answer to the counterclaim was received in the office of Keyse’s attorneys on Friday, September 10. On the following Monday, September 13, the September term of the district court of Stanton County was opened and the docket called. Keyse’s attorneys did not appear. The district court set the case for jury trial on Wednesday, September 15, and Keyse’s attorneys were notified of the setting by telephone by the court. In the course of the telephone conversation Keyse’s attorneys protested the case setting and requested a continuance for the purpose of using discovery procedures and pretrial conference. The court changed the trial setting to September 16 and advised Keyse’s attorneys that if they desired a pretrial conference the court would hear the same on either September 14 or 15. Attorneys for Keyse made no further effort to have a pretrial conference. On September 14 they filed a motion requesting a continuance.
Keyse’s attorneys made no appearance before the court until the morning of September 16, the day set for the trial. At this time counsel for both parties appeared and presented their arguments on the motion for a continuance. The court denied the motion and commented as abstracted in the record as follows:
“Has defendant complied with Section C of 60-240 as to affidavit of any testimony of witnesses. As to documents and photographs it would appear defendant couldn’t have much surprise but that plaintiff might be prejudiced on counterclaim since it is for damages based upon warranty or breach of contract theory. Plaintiff did not raise any affirmative defenses to cross petition. Attorneys for defendant were not present to answer the docket. Attorneys trying cases in various counties are charged with same duty as in their own county to keep up with their cases. It is hard to call a jury back in some of the counties in my district.”
After the motion for continuance was denied the case proceeded to trial and the jury returned a verdict in favor of Scott on September 17, the following day.
At the request of Keyse eight special questions concerning the controlling issues were submitted to the jury. Since the jury found for the plaintiff answers to only four questions were necessary. They are as follows:
“1. Did the plaintiff represent to the defendant that the used pump was in good working condition at the time of purchase?
“Answer: No.
“3. Was such pump defective at the time of the sale thereof to the defendant?
“Answer: It was not proven so.
“5. Do you find that the plaintiff misrepresented the condition of such used pump to the defendant?
“Answer: No.
“6. Do you find that the parties entered into a second agreement for the purchase of a new pump on or about July 10, 1965?
“Answer: No.
On appeal defendant concedes that the general rule followed by this court for many years is stated in State v. Giles, 119 Kan. 417, 239 Pac. 756:
“Error cannot be predicated upon the refusal to grant a continuance unless it appears that the trial court abused its discretion to the prejudice of the complaining party.” (Syl. f 1.)
See, also, Konitz v. Board of County Commissioners, 180 Kan. 230, 303 P. 2d 180; Shore v. Cantor, 159 Kan. 642, 157 P. 2d 528; Richmond v. Clinton, 144 Kan. 328, 58 P. 2d 1116; Quinton v. Kendall, 122 Kan. 814, 253 Pac. 600.
Keyse argues the denial of his motion for a continuance was an abuse of discretion which prejudiced him because, by reason thereof, he was denied the right of discovery by interrogatories or depositions and the right to a pretrial conference; and further the notice given him on September 13, of the trial setting on September 16, was inadequate.
The assignment of cases for trial and continuances thereof are now governed by K. S. A. 60-240, of our new code of civil procedure. Subsections (a), (b) and (c) provide as follows:
“(a) Assignment of cases for trial. The district courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the judge deems expedient. Precedence shall be given to actions entitled thereto by any statute of the state.
“(b) Continuances. The court may for good cause shown continue an action at any stage of the proceedings upon such terms as may be just. When a continuance is granted on account of the absence of evidence, it shall be at the cost of the party making the application, unless the court otherwise orders.
“(c) Affidavit in support of motions. The court need not entertain any motion for a continuance based on the absence of a material witness unless supported by an affidavit which shall state the name of the witness, and, if known, his residence, a statement of his expected testimony and the basis of such expectation, a statement that the affiant believes it to be true, and the efforts which have been made to procure his attendance or deposition. The party objecting to the continuance shall not be allowed to contradict the statement of what the absent witness is expected to testify but may disprove any other statement in such affidavit. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit, and will agree that the same shall be received and considered as evidence at the trial as though the witness were present and so testified. The same rule shall apply, with necessary changes, when the motion is grounded on tire want of any material document, thing or other evidence. In all cases, the grant or denial of a continuance shall be discretionary whether the foregoing provisions have been complied with or not.”
Subsection (a), supra, is the same as Federal Rule No. 40, of the federal rules of civil procedure, and replaces G. S. 1949, 60-2930, 2931 and 2932.
The effect is to remove whatever mandatory direction was contained in former statutes pertaining to assignment of actions to the trial calendar. This function has always been largely controlled by local court rule and the policy is confirmed by this subsection. (Gard, Kansas Code of Civil Procedure Annotated, § 60-240 [a], p. 197; 3 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, §240.2, p. 63.)
Subsection (b), supra, is a reenactment of G. S. 1949, 60-2933. Subsection (c), supra, is a reenactment in substance of G. S. 1949, 60-2934. Although the language is slightly different, a close com parison with the former section justifies the conclusion that no change of procedure is effected. (Gard, Kansas Code of Civil Procedure Annotated, § 60-240 [c], p. 198.)
In State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298, we note the proviso of 60-240 (c), supra, that the granting of continuances in all cases shall be discretionary, is in harmony with long-standing case law.
The district court has established a rule that a case at issue will be set for trial at the earliest date available, after the commencement of the term. Stanton County is one of the six counties comprising the Thirty-ninth Judicial District. By statute (K. S. A. 20-1035a) three terms of court are designated to commence on successive Mondays in September of each year — Morton County on the first Monday, Stanton County on the second Monday and Haskell County on the third Monday. The reason for assigning jury cases at issue for trial during the week following the opening day of the term is obvious and such assignment procedure is not in conflict with 60-240 (a), supra, of any rule of this court relating to district courts. Our Rule No. 113 (197 Kan., lxxii) was promulgated for the purpose of requiring a court day in each county of a judicial district in each month, except July and August, for the disposition of motions and pending court matters not requiring a jury. Provisions for notice in the rule pertains to the hearing of such matters and not to the setting of jury trials during a statutory term of court, as suggested by defendant’s counsel.
The assignment of the case for trial was clearly within the authority of the court under 60-240 (a), supra. The only question here is whether the denial of a continuance so prejudiced defendant as to amount to an abuse of discretion.
As was noted by the trial court in its comments, no affidavit by Keyse was filed in support of his motion for a continuance. Keyse merely argues that he was prejudiced in being deprived of pursuing his right to discovery and a pretrial conference. K. S. A. 60-226 provides that a party may take the testimony of any person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence at any time after commencement of the action, except that if done within twenty days by plaintiff, leave must be obtained and subject further to the provisions of K. S. A. 60-230 (b) providing for control of the procedure by the court to prevent abuse. In this case Keyse was served with process on August 3. He was immediately entitled to institute discovery proceedings by way of either depositions or interrogatories. Instead he sought and was granted a ten day extension of time in which to answer, and on August 31, filed his answer, counterclaim and request for a jury trial.
In discussing 60-226 (a), supra, Judge Gard in his commentary says:
“The defendant may serve notice and take depositions at any time after the action is commenced. He need not wait for any prescribed period and may take the depositions before he has filed a responsive pleading. . . .” (Gard, Kansas Code of Civil Procedure Annotated, p. 135.)
Since defendant was entitled to institute discovery proceedings at any time, subsequent to August 3, and failed to exercise such right, or even to mention it until he presented his motion for continuance on September 16, we are unable to find support for his claim of prejudice.
It must be admitted that the trial court’s offer to accommodate Keyse by convening a pretrial conference on either September 14 or 15 amounted to short notice. However, here again, Keyse has failed to affirmatively show prejudice of his rights. In this regard Keyse argues that he was surprised by Scott’s answer to the counterclaim in which Scott denied that he represented the pump was in good order and alleged that he was selling the pump to Keyse “as is,” because he did not have time or equipment to put the pump in proper condition. In his cross-examination, as narrated in the record, Keyse admitted that Scott did not guarantee the used pump and further that he did not ask Scott to guarantee it.
Keyse claims that he first learned the identity of Tom Winger, the previous owner of the pump in question, from the testimony of Scott at the trial. As we have noted, Keyse had ample opportunity to learn of Winger by means of pretrial discovery proceedings. Furthermore, we have examined the affidavit of Winger, attached to defendant’s motion for a new trial, and find that Winger could only testify as to the condition of the pump during the time he owned it and when he traded it to Scott for a new pump.
From our examination of the pleadings, the evidence, the court’s instructions and special questions, the real issues in this case appear to be (1) did Scott represent or guarantee the condition of the pump at the time he sold it to Keyse, as claimed by Keyse, or was the pump sold in an “as is” condition, as claimed by Scott and (2) was a second agreement consummated for the trade of the old pump for a new one.
The condition of the pump was not an issue. Scott never claimed the pump was in working order. In this connection he testified as narrated in the record:
. . That he had a used Byron-Jackson pump but that it wasn’t in working order and he didn’t have time to make the necessary parts to put it in working order. Did not have time to go to another county and sell a pump or do any pumping on it. That different adapters would have to be put on pump before it could be used and that it took precision work to make the proper change on the pump. He told Keyse he wasn’t interested in selling the pump because of this work that had to be done on it. He showed Keyse the pump and told him if he bought used pump he would be buying it “as is” because he could not be responsible for its operation where he did not install the pump. . . .”
The testimony of Winger, as gleaned from his affidavit, would have been of no benefit to Keyse on either issue, as Winger knew nothing about the original sale negotiations between Scott and Keyse or any negotiations pertaining to the subsequent trade.
Keyse further complains that he never learned the identity of the dealer who sold the pump to Winger in the first instance until it was developed by testimony during the trial. The record does not support Keyse’s position in this regard. Keyse had in his possession a letter from Scott, dated July 1, 1965, in which Scott wrote:
“. . . A few years ago a Fly-By-Night Byron-Jackson dealer located at Liberal, Kansas, and sold this pump to one of our customers. . . .”
Since Keyse had Scott’s letter of July 1 he had ample opportunity, if he so desired, to ascertain the identity of the previous dealer, either by investigation or discovery proceedings.
Keyse also complains that he never learned the identity of a workman by the name of McDaniels, who pulled the pump while Winger owned it, until McDaniel’s name was mentioned at the trial. Keyse makes no proffer as to what McDaniels’s testimony would have been or in what way it might have benefited his case.
There is nothing in the record to indicate that McDaniels had any knowledge of either the first sale agreement or as to negotiations pertaining to the trade deal.
Since defendant has failed to show that his rights were prejudiced by the denial of his motion for a continuance, we find no abuse of discretion on the part of the trial court warranting a new trial. The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was charged in Riley County, Kansas, with grand larceny contrary to the provisions of G. S. 1949 (now K. S. A.) 21-533. He was found guilty upon trial to a jury and sentenced to the Kansas State Penitentiary at Lansing, Kansas, for a period of ten years pursuant to K. S. A. 21-534 and 21-107a, by reason of one prior conviction. Appeal has been duly perfected.
The only substantive question presented is the sufficiency of the evidence to support the verdict.
On the 18th day of September, 1964, Wendell Jerry Helm (defendant-appellant) was employed as a salesman by the National Development Company, whose place of business was located several miles north of Manhattan, Kansas. His immediate superior, Earl Evinger, owned one 12-gauge Remington automatic shotgun; a 22 Remington automatic rifle; a 22 Westerfield automatic rifle; and a German Luger pistol, all of which were located at the National Development Company’s place of business.
On the day in question the appellant attempted to borrow $10 from Mr. Evinger for the purpose of “running around in Topeka,” but his request was denied. On the same day the appellant was the last person to leave the place of business, having received instructions from his employer to lock the premises when he left. The next day the appellant failed to report to work, but left a note for his wife on his employer’s desk, in which he stated:
“Dear Pat: I see no way I can make it, so I’m going to run. I guess this time when I stop, it will probably be for good. I love you and the kids. Jerry.”
On the following morning, September 19,1964, when the note was found, the above described guns were missing. The appellant was thereafter apprehended in Reno, Nevada, and returned to Kansas.
On the 12th day of May, 1965, he was charged with grand larceny by an information filed in the district court of Riley County, Kansas, where he was tiled on the 17th day of May, 1965, to a jury. The evidence presented at the trial, with one exception, consisted of the circumstantial evidence heretofore related.
Prior to trial Mr. Evinger visited the appellant in the county jail and was concerned about trying to locate the various guns that were taken, and in particular the German Luger which had sentimental value. He asked the appellant to tell him where he could locate the guns; that he would pick them up from a pawn shop. As a result of the inquiry the appellant said to Mr. Evinger, “Well, they’ll either be in Topeka or Junction City, I’m not sure where, I got rid of them.”
At the close of all the evidence various post-trial motions were filed including a motion for a new trial. These were overruled by the trial court, except the motion for a new trial which was set for hearing at a later date. At the time set for hearing the motion for a new trial the following colloquy took place:
“Mr. Clark [appellant’s attorney]: May it please the court. At this particular time I would like to request of the court the right to withdraw the motion for a new trial. I have talked to Mr. Helm, he’s indicated to me that he feels that the trial in this particular matter was fair and therefore he does not desire to pursue the same.
“The Court: You have heard, Mr. Helm, your counsel’s statement — and the court is not doubting his statement, but I want to know if you understand what he just said and do you—
“The Defendant: Yes, sir.
“The Court: Do you agree with what he said?
“The Defendant: Yes, sir.
“The Court: That it is your desire at this time that there be no further argument or presentation upon your motion for a new trial, but that your counsel be permitted to withdraw this motion, or at least consent to it being overruled, is this right?
“The Defendant: Yes, that’s right.
“The Court: How old are you?
“The Defendant: Thirty-five, sir.
“The Court: Do you know of any reason why the judgment and the sentence of the court should not be pronounced at this time upon your conviction by a jury in this court upon the charge of grand larceny?
“The Defendant: No reason.”
The record does not disclose that counsel for the appellant withdrew the motion for a new trial, nor does it affirmatively disclose that the trial court overruled the motion for a new trial. The journal entry, however, discloses the trial court granted counsel for the appellant permission to withdraw his motion for a new trial. On the other hand, the order appointing counsel to represent the appellant on appeal in this action recites that David K. Clark, an attorney at law in the city of Manhattan, Kansas, was appointed to represent the appellant “in the appeal of the Judgment of Conviction, heretofore made in this court, the Order denying Petitioner’s Motion for New Trial and from all other orders, motions, and decisions in the above-entitled matter.”
Various contentions are advanced by counsel for the respective parties relative to the foregoing procedure as to disposition of the motion for a new trial.
Without elaborating on these various contentions, we view the net result of the action taken in the lower court as tantamount to an order of the trial court overruling the appellant’s motion for a new trial.
In his motion for a new trial the appellant raised questions concerning the sufficiency of the evidence to support the jury’s verdict.
The state contends since the motion for a new trial was not argued, at the request of the appellant, he cannot raise such ques tions for the first time on appeal. To support this argument the appellant relies on Commercial Savings & Loan Ass’n v. Curts, 187 Kan. 18, 354 P. 2d 86, in which the court said:
“From the record presented on appeal it does not appear this issue was argued on the motion for a new trial. Under these circumstances the appellant is deemed to have waived this objection, assuming, without conceding, that it did have merit.” (p. 19.)
There the trial court heard argument on the motion for a new trial, but the appellant did not raise the question as to whether the trial court should have granted the appellant a jury trial. Under these circumstances the appellant was deemed to have waived his objection.
In the case of In re Estate of Beeler, 175 Kan. 190, 262 P. 2d 939, Beeler filed a motion for a new trial on the ground that the judgment was contrary to and not supported by the evidence. The motion was submitted to the court without argument and was overruled, following which Beeler appealed from the order overruling her motion for a new trial. It was contended by the appellees that the appellant was not entitled to a review of the case because counsel did not appear and orally present the motion for a new trial at the time set for its consideration. The court there determined that both parties had diligently argued the grounds assigned as error at the close of the evidence, so that the court was fully apprised of the points involved. The court’s order overruling the motion recited that the court had been fully advised in the premises. In the opinion the court said:
“The fact that counsel did not repeat in an oral argument, on a motion for new trial, grounds which had been previously and fully presented, as disclosed by the record, does not warrant the overlooking of the grounds of alleged error, nor the denial of a review of the assignments of error. (Beam v. Farmers Union Mutual Hail Ins. Co., 127 Kan. 234, 238, 273 Pac. 440.) . . .” (p. 193.)
In the instant case, as in Beeler, the grounds asserted in the motion for a new trial were that the verdict is contrary to and not supported by the evidence. In the instant case both parties diligently argued the points relating to the sufficiency of the evidence to support a conviction at the close of the evidence, and the trial court was fully advised in the premises. Under these circumstances oral argument on the motion for a new trial was not necessary, and the absence of such argument does not warrant the denial of a review on assignments of error specifying the sufficiency of the evidence to support the verdict.
Was the evidence sufficient to support the verdict?
In a criminal prosecution it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Walker, 198 Kan. 14, 422 P. 2d 565, Syl. ¶ 1; State v. Shaw, 195 Kan. 677, 408 P. 2d 650; State v. Gregory, 191 Kan. 687, 383 P. 2d 965; and State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039.)
When considering the sufficiency of circumstantial evidence to sustain a conviction of crime on appeal, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and the trial court. The function of the appellate court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Crosby, 182 Kan. 677, 324 P. 2d 197, 76 A. L. R. 2d 514, and authorities cited therein at p. 685 of the official report; and State v. Scoggins, 199 Kan. 108, 427 P. 2d 603.)
Wholly aside from the circumstantial evidence in the instant case the record discloses an admission of the appellant, which if given credence by the jury, warrants an inference of guilt. We hold the evidence disclosed by the record sufficient to support the verdict.
On oral argument of this appeal before the Supreme Court it was disclosed that the appellant sought a writ of habeas corpus in the United States District Court for the District of Kansas (Case No. L-77), naming Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, as respondent, by reason of the delay in presenting the appellant’s case to the Supreme Court of Kansas for appellate review.
After hearing, the appellant’s petition was denied in the Federal District Court, and the writ was discharged remanding the petitioner to the custody of the respondent. In so ruling the Federal District Court found the sentencing court granted the petitioner’s request that Mr. David Clark represent him as counsel on appeal to the Kansas Supreme Court; that Mr. Clark was acceptable to the petitioner; and that the petitioner was well represented by his court-appointed attorney, Mr. Clark. It further found:
“That the correspondence between petitioner and his court-appointed counsel indicated petitioner was in doubt as to whether to continue with his direct appeal or to file a motion to vacate pursuant to K. S. A. 60-1507; that said correspondence indicated that petitioner considered himself as co-counsel in that he continually suggested legal tactics; and that petitioner was aware at all times that there was delay.
“That the circumstances that resulted in the delay of petitioner’s state appeal were due to both petitioner and to his court-appointed attorney, Mr. Clark.
“Therefore, the Court concludes that under all the circumstances, the delay in prosecuting petitioner’s appeal from the sentencing court to the Kansas Supreme Court was caused in part by the petitioner and in part by the unusual set of circumstances surrounding the delay; that the delay was neither inordinate nor unreasonable for those reasons.”
For the reasons heretofore asserted the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal in a workmen’s compensation proceeding. Computation of the weekly rate of compensation due the workman comprises the only issue.
Entitlement to compensation is based on occupational disease under the provisions of K. S. A. Chapter 44, Article 5a.
In view of the narrow issue here for review the evidence in the record on appeal as to the disease and disability is brief, revealing only the following: The workman, appellant herein, testified he sustained an allergy to solvents and other materials in his employment with respondent-appellee as a front line, factory-trained General Motors mechanic; that he had no other skills and had only a high-school education. A doctor testified that the allergy was grease and solvent produced,- forcing appellant into employment not related to greases and solvents. The record further indicates appellant has no functional disability of any kind other than the allergy.
The parties stipulated that appellant’s average weekly wage in his employment with appellee had been $92.09 per week. This was shown to be for a forty-nine hour work week. At the time of the hearing before the examiner appellant was working for the Colby Distributing Company as a warehouseman and truck driver, earning for a similar work week wages at the rate of $85.60 per week.
An employee of the Kansas State Employment Service testified that the average going rate for unskilled labor in the Dodge City area is $1.50 per hour plus overtime for more than forty hours per week; that the rate could go as high as $1.70 per hour.
The workmen’s compensation examiner found that appellant had sustained an occupational disease arising out of and in the course of his employment with appellee, resulting in four compensable weeks’ temporary total disability and permanent partial disability for 411 weeks, and he awarded compensation for tire four weeks’ temporary total disability at the rate of $42.00 per week, and for the 411 weeks’ permanent partial disability at the rate of $19.25 per week.
The record on appeal does not reveal the action of the workmen’s compensation director upon this award. Upon oral argument we are told the director awarded compensation for the 411 weeks’ permanent partial disability at the rate of $3.89 per week. Appellant appealed from the director’s decision and award to the district court. That court awarded compensation for 411 weeks’ permanent partial disability at the rate of $3.89 per week, the rationale of its ruling being stated as follows:
“. . . the pertinent statute involved is K. S. A. 44-510, sub-paragraph 24, which provides as follows:
“ ‘In case of temporary or permanent partial disability not covered by the schedule the workman shall receive during such period of temporary or permanent partial disability not exceeding 415 weeks 60% of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury in employment.’
“The Court finds that claimant was able to earn and did earn an average weekly wage of $92.09 for approximately 49 hours of work per week before the injury, and claimant is able to earn and has earned on an average week of 49 hours per week, the sum of $85.60 per week since the injury. The difference between $92.09 and $85.60 is $6.49 and 60% of this amount is $3.89 per week, amounting to a 7% general bodily disability.”
Appellant appeals from the district court’s finding and award as to his compensation rate for his permanent partial disability.
We should point out there is no cross-appeal by appellee as to the finding that an occupational disease was sustained or as to the award of compensation therefor; further that upon oral argument before us the occupational disease was stated to be in the nature of a dermatitis so as to make it compensable under the workmen’s compensation act (K. S. A. 44-5a02, No. 7).
Appellant does not contend he is entitled to an award of compensation for total permanent disability or that his compensation rate should be the maximum $42.00 per week. Rather, he contends he is entitled to an award at the rate of $19.25 per week, as made by the examiner. He argues that under certain of our decisions, the only evidence which can properly be taken into account as to his earning ability on the general labor market is the testimony by the employment service agent to the effect that the average weekly wage for unskilled labor in the particular area was $1.50 per hour or $60.00 per week for a forty hour week; that he is entitled to 60% of the difference between his previous wage with appellee and the later figure ($92.09 minus $60.00 equals $32.09, 60% of which is $19.25). He contends the amount he was actually earning in his new job was wholly immaterial and could not in any event be charged against him in computing his compensation rate. As indicated, appellee maintains the trial court correctly computed the compensation due.
The principal decision relied upon by appellant is Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414. In this case the workman, an oil field driller, sustained an accidental injury, being struck on the head by a heavy bushing, as a result of which he received a concussion, skull fracture and serious injury to his back. He had only an eighth grade education and had always followed occupations requiring a great deal of physical strength and labor. In upholding the trial court’s finding of partial disability, expressed first in percentage, and the award based thereon, this court re viewed many cases and reaffirmed the applicable principles as follows:
“The purpose evidenced by K. S. A. 44-510 (3) (c) (24) is that an injured workman should be compensated for such loss in earning capacity as results from a permanent partial disability.
“The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.” (Syl. ¶¶ 1, 2.)
The correctness of the foregoing rules as applied to accidental injury resulting in disability is beyond question. We deal here, however, with an occupational disease and one in which there is no functional disability apart from the allergy attributable to the particular employment. The case is one of first impression.
Prior to 1953 occupational disease was not compensable under our workmens compensation act (see Vocke v. Eagle-Picher Co., 168 Kan. 708, 215 P. 2d 185), but certain specified categories were made so pursuant to Laws 1953, Chapter 246.
K. S. A. 44-5a01 (a), a section of the 1953 enactment, provides in pertinent part:
“Where the employer and employee or workman are subject by law or election to the provisions of the workmen’s compensation law, the disablement or death of an employee or workman resulting from an occupational disease as hereinafter listed and defined shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation as provided in the workmen’s compensation law except as hereinafter otherwise provided. . . .”
K. S. A. 44-5a02 lists the occupational diseases deemed to be compensable, but nowhere in the act are there any scheduled benefits prescribed for the same as is the case for certain specific injuries mentioned in K. S. A. 44-510 (3) (c) (1-22).
K. S. A. 44-5a04 provides in part:
“Except as hereinafter otherwise provided in this act ‘disablement’ means the event of an employee or workman becoming actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, and ‘disability’ means the state of being so incapacitated: Provided, If tire director shall find that the workman has returned to work for the same employer in whose employ he was disabled or for another employer and is capable of earning the same or higher wages than he did at the time of the disablement, or is capable of gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the disablement . . . the director may cancel the award and end the compensation.”
K. S. A. 44-5al9 provides an independent method of review of an award or denial of award of compensation for occupational disease. K. S. A. 44-510 (3) (c) (24) (now amended by Laws 1967, Chap. 280, § 4) has already been set forth in the trial court’s ruling.
It would be unwise here to attempt to postulate general rules applicable to all categories of occupational disease cases and we undertake no such endeavor. However, as applied to the facts in the case at bar, and keeping in mind our workmen’s compensation statutes are to be construed as a single comprehensive act, we think the foregoing statutory recitation evinces certain legislative intent: Partial disability from occupational disease is compensable; such compensation is payable as provided in the existing workmen’s compensation act except as otherwise provided in the occupational disease aspect of the act; the term “disability” when attributable to occupational disease is separately defined and it means the state of a workman being actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease; and finally, the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, by whomever employed, from any trade or employment, is relatable to the amount of compensation due, to the extent that the award therefor may be cancelled and the compensation ended.
If the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, from any trade or employment, is relatable to the amount of compensation due, so that the award may be cancelled, then it logically follows that his capacity to earn wages from any trade or employment is relatable to the amount of compensation due, to the extent the award may be diminished accordingly. We believe K. S. A. 44-510 (3) (c) (24), as herein construed in connection with other provisions of Chapter 44, Article 5a, provides a practicable and a fair method for such computation.
We cannot say, then, there is any requirement that the capacity of the workman, after sustaining the allergy, is to be measured by his ability to perform work of the same type and character he was able to perform before he was injured. To that extent, in occupational disease cases such as here, there is deliberate legislative departure from the rule expressed in the Puckett v. Minter line of cases applicable to injury by accident. This disposes of appellant’s only contention of error here.
The parties have engaged in some debate as to whether appellant should be classified as an unskilled, semi-skilled or skilled laborer. We have already stated all the evidence upon that feature of the case and find it unnecessary to make any such classification.
The extent or degree of disability remains always a question of fact to be determined, within the limits of the workmen’s compensation act, by the trier of the fact. (Place v. Falcon Seaboard Drilling Co., 186 Kan. 523, 524, 350 P. 2d 788).
Upon the evidence presented we think the trial court properly resorted to and interpreted K. S. A. 44-510 (3) (c) (24) in connection with the provisions of K. S. A. Chapter 44, Article 5a, in making its findings and award and that judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Douglas McArthur Patterson, although charged with second degree murder (K. S. A. 21-402), was convicted by a jury of the lesser offense of first degree manslaughter (K. S. A. 21-407) upon evidence that on April 3, 1965, he shot and killed his wife, Anneliese. Following denial of a motion for new trial and imposition of sentence to the state reformatory, defendant filed notice of appeal and requested the appointment of counsel. Present counsel, who by court appointment had represented the defendant at trial, was appointed for this appeal.
The questions raised relate to alleged trial errors as well as the propriety of the court’s overruling of defendant’s motion for new trial.
There were no eyewitnesses to the shooting, but the following sequence of events and circumstances surrounding the incident were shown by the evidence at trial:
The defendant was a soldier living with his wife and two children in a duplex in Manhattan. Sgt. Jon Hosford and his family were occupants of the other half of the building. On April 2, 1965, the day preceding the shooting, the Hosfords’ dog was struck by a car. That evening Hosford borrowed defendant’s revolver in order to end the dog’s life. The defendant got the gun out of his car, where it was kept in a holster under the front seat on the driver’s side. Since the revolver was not loaded, defendant and Hosford went into defendant’s home, got a box of shells out of a desk drawer, and defendant placed three shells into the gun’s chamber. Defendant cautioned Hosford that the safety device on the revolver did not function properly. Hosford used two bullets to kill his dog, and so advised the defendant upon returning the revolver about an hour later. Hosford also told him he could not open the chamber to remove the two spent cartridges, and thus they, plus the one unexpended cartridge, were left in the gun. Before retiring for the night, the defendant laid the revolver on top of the refrigerator in the kitchen of his home.
The next day, as defendant was preparing lunch, he noticed the revolver still lying on top of the refrigerator. He took the gun down, pulled the hammer back, opened the cylinder and removed the two spent cartridges. At this time the telephone rang, and defendant laid the gun down to answer the call. Upon completing his conversation, defendant picked up the gun, put it back on top of the refrigerator, and left the house.
. After spending the afternoon drinking at several different clubs, defendant returned to his home about 6:30 p. m. Anneliese was preparing dinner, working near the refrigerator. She started to take something out of the refrigerator and, as she did so, asked the defendant to remove several miscellaneous items — among them the revolver — from atop it. According to defendant’s testimony, he complied with his wife’s request, and as he was removing the articles, his wife turned and bumped him and the gun accidentally discharged, the bullet striking Anneliese in the head. Defendant telephoned for an ambulance, and also called his friend, Sgt. Clarence Wise, asked him and Mrs. Wise to come to his home, and told them he had shot his wife. When the Wises arrived, about 6:45, the defendant was sitting beside his wife’s body and crying. Sgt. Hos-ford and his wife were already there.
Shortly before 6:30 that evening Sgt. Hosford heard “some argument” and “loud voices” coming from the Patterson household. Hosford had gone outside and was working on his car when he heard what he termed an “explosion.” His wife came out of the house to see what had happened. Two or three minutes later the defendant ran to Hosfords’ back door, knocked, and returned to his apartment. Hosford went to defendant’s back door to inquire what he wanted. Defendant told Hosford he needed Mrs. Hosford to take care of the Pattersons’ children, that he’d shot his wife. Defendant asked Hosford if he had left a bullet in the chamber of the gun. Hosford replied, “Yes, didn’t you remember?” Defendant acknowledged that he remembered but “not until after I’d shot her.” The two men then went into the Pattersons’ apartment. Defendant was sobbing and asking if his wife was dead. Inside the apartment Hosford noticed a gun lying beside the kitchen sink on the counter top. He grabbed the weapon, took it to his own apartment, and hid it in some boxes to prevent the defendant from shooting himself— as he had threatened to do.
The ambulance and police officers arrived approximately an hour later. Hosford told Thomas L. Ennis, a military policeman, about having the gun at his apartment. The M. P. went with Hosford to his apartment, got the revolver, and gave it to a police officer who took it back to the Pattersons’ apartment. From there it was taken to the police station where the one spent cartridge case was removed.
After arrival of the police officers the defendant was taken to the city jail where he was held pending investigation of the shooting. Subsequently, a complaint was filed charging defendant with second degree murder. Following a preliminary hearing at which he was represented by Mr. Robert Abbott, defendant was bound over to the district court for trial.
In refutation of defendant’s version that the shooting was accidental, the state introduced evidence of the turbulent married life of the Pattersons during the months immediately preceding Anneliese’s death. On more than one occasion there had been heated arguments between them in which the defendant had displayed a violent temper. Anneliese bore physical evidence on at least two occasions of having been mistreated by her husband. In the presence of the Wises the defendant had twice threatened to kill his wife, and during the two months preceding the shooting similar threats were overheard by a neighbor residing in the downstairs apartment of the duplex. The defendant himself acknowledged in his testimony that he had told his wife several times that if she ever tried to leave him he would “probably kill her.”
Defendant sets forth five specifications of error for our consideration. He first complains that the district court erred in failing to grant his request for continuance of the trial, and as a result he was denied “full and fair representation” by counsel, as required by K. S. A. 62-1304. The record reflects that the preliminary hearing was held on April 22, 1965. The defendant appeared in district court on May 3, at which time Mr. Abbott withdrew as counsel, Mr. Clark was appointed as the defendant’s attorney, and the case was set for trial on May 18. On May 10, Mr. Clark filed a motion requesting additional time to prepare the defendant’s case. The motion was supported by Clark’s affidavit stating that he had not been counsel at the preliminary hearing, that he had not received a copy of the transcript of testimony given at said hearing, that he was scheduled to defend another criminal case on May 17, and that he would not have time to interview witnesses and prepare a defense. On the morning of trial (May 18) the motion was heard and denied by the district court. At the hearing the court noted that on May 14 Mr. Clark had received a copy of the preliminary hearing transcript, which consisted of approximately sixty-eight pages. The court observed further that there was no showing that any witnesses the defendant might want to use lived outside thé immediate geographical area, and that if during the trial a situation arose where Mr. Clark would like to have a few minutes’ time to talk to a witness, the court would declare a recess and give him opportunity to do so. The court, in overruling the motion, concluded that it did not appear defendant’s rights would be prejudiced by proceeding with the trial. After trial, and at the hearing on the motion for new trial where the matter was again raised, the court found there had been no showing the defendant was prejudiced by his being compelled to go to trial on May 18.
The well-established rule in this jurisdiction is that the granting or denial of a continuance in a criminal prosecution is largely within the sound discretion of the trial court, whose ruling will not be disturbed in the absence of a showing that there has been an abuse of discretion which has prejudiced the defendant’s substantial rights. (State v. Adamson, 197 Kan. 486, 419 P. 2d 860; State v. Brown, 193 Kan. 654, 396 P. 2d 401; State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541, appeal dismissed 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.) The case of State v. Young, 196 Kan. 63, 410 P. 2d 256, upon which the defendant relies, is clearly distinguishable on the facts. There, the point of the trial court’s ruling on the motion for postponement was so entwined with the defendant’s request for other counsel that the holding affords no ground for relief to the defendant here.
From a review of the record we are of the opinion there was a complete absence of any showing that defendant’s substantial rights were prejudiced by the lack of a continuance. The defendant was fully and adequately represented by competent, experienced counsel. Upon completion of the trial, the judge was in a much better position than this court to appraise the situation, and his conclusion was justified by the record before us. Hence, the lower court’s ruling must stand.
Next the defendant urges that the court erred in admitting the revolver (Exhibit No. 1) into evidence because it was not properly identified and a complete chain of possession after the shooting was not established. The gun was not marked nor was the serial number recorded until after it was taken to the police station. There was ample evidence, however, from witnesses who handled the gun in the interim, tending to establish that it was the same weapon used by Sgt. Hosford to kill his dog and the same one taken by Hosford from the defendant’s home immediately after the shooting and thereafter turned over to the police. In fact, the defendant, in his testimony, made no attempt to dispute the state’s theory that Exhibit No. 1 was the death weapon. The further argument that “an unbroken chain of custody” was not shown, because the gun was left unattended and accessible to many persons before the serial number was recorded, cannot be sustained. Under the circumstances previously narrated, any questions about the identification of the weapon, or its possession after the shooting and before the serial number was recorded, were matters which went to the weight rather than the admissibility of such evidence. (State v. Williams, 196 Kan. 628, 413 P. 2d 1006; State v. Montgomery, 175 Kan. 176, 261 P. 2d 1009.)
Defendant next complains that the court erred in permitting the prosecution, on cross-examination, to hand him the revolver and have him demonstrate that the gun could not be cocked while the cylinder was open, because such demonstration tended to incriminate him. The record does not disclose an objection was interposed to such evidence at trial; consequently, its admission, even if erroneous, cannot be a basis for reversal. (State v. Adamson, supra; State v. Donahue, 197 Kan. 317, 416 P. 2d 287; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.) Even if properly before us, the argument is untenable. Such evidence was proper on cross-examination to contradict defendant’s direct testimony that the weapon was on top of the refrigerator in a cocked position with the cylinder open, that as he took it down he “started to close the cylinder,” his wife turned and bumped him, and the weapon accidentally discharged.
Defendant further predicates error upon the court’s instruction No. 12 relating to first degree manslaughter. The instruction reads as follows:
“You are instructed that where a person engages in an assault and while so engaged unintentionally shoots and kills another, he is guilty of manslaughter in the first degree within the meaning of this statute.
“You are instructed that by the term ‘assault’ as used in this instruction, is meant any intention, offer or attempt to do corporal injury to another by force, unlawfully directed against the person of another. The pointing of a gun at another under such circumstances who does not know whether or not it is loaded is an assault.”
Again, there was no objection to the instruction at trial, nor was it urged as a ground in defendant’s motion for new trial. Furthermore, the other instructions are neither included in the record nor in the trial transcript. Normally, under these circumstances, the point would not be entitled to review. (K. S. A. 60-251 [b]; State v. Booker, 200 Kan. 166, 434 P. 2d 801; State v. Freeman, supra; State v. Ellis, 192 Kan. 315, 387 P. 2d 198; State v. Johnson, 189 Kan. 571, 370 P. 2d 107.) Notwithstanding the procedural deficiency, the matter will be considered briefly, inasmuch as it relates to the final point raised in this appeal.
The argument advanced in defendant’s brief centers on tire lack of evidence that the shooting occurred during the commission of an assault. The state’s theory was that from all the evidence the jury could conclude that the defendant intentionally pointed the gun at his wife before she was lolled and, under such circumstances, would be guilty of an assault, thus permitting the application of the misdemeanor-manslaughter rule as set forth in the instruction. Whether the defendant intended to commit an assault may be inferred from all the facts and circumstances which legitimately permit such an inference. (State v. Linville, 150 Kan. 617, 95 P. 2d 332.) A great portion of the evidence has already been related in considerable detail and need not be repeated. The evidence of the discordant marital relationship between the defendant and Anneliese, his previous assaults on her, including his threats to kill her, was competent as bearing on the defendant’s motive and intent, particularly since this is a case of marital homicide. (State v. Scott, 117 Kan. 303, 235 Pac. 380, opinion on rehearing, 118 Kan. 464, 235 Pac. 380; State v. Cruse, 112 Kan. 486, 212 Pac. 81; State v. McKinney, 31 Kan. 570, 3 Pac. 356.) In addition, there was evidence of physical factors at the scene of the shooting, including the path of the bullet through the victim’s head, which could well cast doubt on the defendant’s account of the incident. From all the evidence we believe the jury could find the killing occurred while the defendant was engaged in an assault upon his wife. Accordingly, it was incumbent upon the court to give the instruction. (State v. Booker, supra, and cases cited therein.) Some complaint is also made of the court’s definition of “assault,” but we find the definition legally sufficient. (State v. Hazen, 160 Kan. 733, 165 P. 2d 234; State v. Linville, supra.)
Defendant’s final point — the court erred in overruling his motion for new trial on the ground the verdict was contrary to the evidence — likewise cannot be sustained. Careful scrutiny of defendant’s argument reveals his real complaint is the insufficiency of evidence to sustain the verdict. It is obvious the state relied almost entirely on circumstantial evidence to establish the defendant’s guilt as against the defense that the shooting was accidental. Whether or not the evidence was incompatible with any reason able hypothesis except that of guilt was a question for the jury and trial court. The function of this court in considering the sufficiency of such evidence to sustain an appeal is limited to ascertaining whether there was a basis for a reasonable inference of guilt. Before a verdict of guilty which has been approved by the trial court may be set aside because of insufficiency of evidence, it must clearly be made to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached in the trial court. (State v. Helm, 200 Kan. 147, 434 P. 2d 796; State v. Scoggins, 199 Kan. 108, 427 P. 2d 603; State v. Wood, 197 Kan. 241, 416 P. 2d 729.) Out of an abundance of caution we obtained and carefully reviewed the transcript of trial. We find there was a basis in the evidence for a reasonable inference of guilt, and hold there was sufficient, competent evidence to support the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for divorce, on the ground of extreme cruelty and gross neglect of duty. A divorce was granted to plaintiff, and alimony and attorney fees were awarded to defendant. Both appeal.
Extreme cruelty was not established. In the case of Smith v. Smith, 22 Kan. 699, the court said:
“The expression, ‘gross neglect of duty,’ is indefinite, and it is difficult to lay down any general rule by which every case can be determined to be within or without its limits. Each case must be examined by itself.
“There must not only be a default, but the default must be attended with circumstances of indignity or aggravation.” (pp. 700, 701.)
Accepting as true the testimony of plaintiff and his witnesses, there was not only default on the part of defendant, considering all the circumstances in which the parties were placed, but default attended by indignity and aggravation. Accepting as true the testimony for defendant, she was not only guiltless, but much sinned against. As this court has said many times, it cannot retry the case on the abstract. It does not possess the trial court’s facilities for reaching a correct conclusion, and must assume that court strained neither the law nor the facts.
The same considerations apply to the award of alimony. Besides that, the district court has a broad discretion in allowing alimony, and that manifest injustice which is necessary to constitute abuse of discretion does not appear.
The court evidently believed it was necessary to make payment of the award to defendant fully secure. The means adopted — withholding final judgment until the order is obeyed — was probably the only means of protecting defendant, and this court is not prepared to say the order was improper.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On January 22, 1923, 0. F. Brown was convicted of an assault upon Carmen Trabulse with intent to commit rape. He appeals.
1. Complaint is made of the overruling of a motion for a change of venue on the grounds that public opinion had been so inflamed against the defendant as to prevent his having a fair trial in the county and that the district judge was prejudiced against him.
The defendant in his verified motion said that bitter and inflammatory newspaper articles charging him with being guilty had been published in the county, causing the employment of counsel to assist the county attorney in the prosecution, and that by reason of such articles the American Legion had a public meeting at which false statements were made against him, resolutions condemning vhim were passed, and additional counsel to assist the state were employed. Evidence was' introduced of the use of the following headlines in a Hutchinson paper during the latter part of October, 1922: “Little Assyrian Girl Wins Brother’s Freedom. Sheriff Clark Goes to Aid of Faithful Sister.” “State and Legion to be Prepared at the ‘Dutch’ Brown Hearing. May Ask that Bond of Man be Increased.” “Brown is Bound Over; His Bond Now $5,000; Attorneys Ask $50,000. Counsel Complains at Conduct of Newspapers and Legion in Demanding Vigorous Prosecution of the Case.” “Brown Case .May Come Up This Term.”
In addition, the following six paragraphs were shown to have been published in the same paper during the months of December and January:
“Serious charges will be preferred against the person who asked Carmen Trabulse to allow the state case against Orville Brown, Sterling man, to be continued until the April term of court, if that person can be located, Judge W. G. Fairchild said yesterday.”
“A letter from the girl, who is at her home in Highland Park, Mich., informed local officers that an attempt had been made to persuade her to allow the case to go over until the April term of court, because of ‘the illness of the defendant’s mother.’ The man who asked the favor the girl said represented himself as the mayor of Biltmore, Kans., and gave his name as Glenn.” “County Attorney W. H. Burnett was instructed to start an investigation to determine the identity of this stranger who made a fruitless trip to Michigan. Prosecution will result if the identity of the man is learned. Had the trip, been successful, it is pointed out, the case would likely have been dismissed because of lack of evidence. Instructions have already been sent to Miss Trabulse to be ready for the trial next week.”
“There was no effort made to continue the case when it was called in district court yesterday morning for setting. It is assumed that Brown will be present at the trail. He was freed under 15,000 bond.”
“Carmen Trabulse, Assyrian girl with only a slight knowledge of the English language, first came to Hutchinson to effect the release of . her brother, Fred Trabulse, alias Alexander, a war veteran who had been arrested by city police on a charge of breaking into a hamburger wagon. Alexander had escaped from the county jail, where he was awaiting trial on a grand larceny charge, and had returned to his home after he had learned that his mother was seriously ill.”
• “The girl was led to believe that Brown would aid her in securing her brother’s liberty and, according to her charges, was attacked by Brown. Attorneys, retained by the American Legion to aid the girl, secured Fred Trabulse’s release on condition that his sister would return to appear against Brown. A great deal of interest has been taken in the case and court attaches believe that Sterling people will be in prominence at the trial as a delegation from that city has been active in the interest of the little Assyrian girl"
No presumption can arise that the publication of this matter so prejudiced the people of the county as to prevent a fair trial being held there, and the defendant’s affidavit that such a result had attended it is a mere conclusion without substantial probative force.
The contention that the district judge was prejudiced rests upon evidence to this effect: After the preliminary examination the attorneys went to the court room and there in the presence of the judge discussed the matter of having an immediate trial, the state’s attorneys desiring it because the complaining witness lived in Michigan. An application in behalf of the state for a trial at the term of court then in progress (that begun in September) was informally presented and refused. A brother of the complaining witness, who had been convicted on a criminal charge, was'paroled by the judge and at the request of the county attorney one of the conditions of the parole was that she should appear at court during the, January term.
The judge, in refusing the change of venue, said, among other things: “I don’t even know the defendant; never saw him in my life until now ... I haven’t even heard what is purported to be the facts in this case. I haven’t read the articles in the papers. I don’t know anything about it.” Manifestly there was no error in overruling the motion for a change of venue.
2. A juror, who sat in the case, testified in the course of his examination as to his qualifications that he had no opinion as to the guilt or innocence of the defendant; had read some of the newspaper articles in the city papers, but not all through; had never discussed the case on the streets; and had not formed or expressed any opinion concerning it. On a motion for a new trial the affidavits of three persons were presented in behalf of the defendant to the effect that in the latter part of October this juror in conversation with them in a Smoke House in Hutchinson had said (all of the affidavits giving these exact words as the substance of his statement) : “Brown is as guilty as hell. He ought to be in the penitentiary and I would like to help put him there.” The state filed an affidavit of the juror explicitly and absolutely denying the statement attributed to him and denying having ever talked with any of the three affiants about the Brown case.
The issue on the motion for a new trial was purely one of veracity. If the juror had orally given his testimony in contradiction of the three affidavits introduced by the defendant the ruling of the district court would obviously be final, for it is only where a question of fact is decided wholly upon written evidence that the decision is subject to review here. That the amount of oral testimony is small in proportion to the written evidence does not affect the rule. (Truitt v. Becktold, 74 Kan. 871, 87 Pac. 188.) This principle might appear to have been departed from in Record v. Ellis, 97 Kan. 754, 156 Pac. 712, but there in the view of this court the oral evidence had no substantial tendency to contradict the depositions upon .the strength of which the finding of the trial court on a particular issue was reversed. It has been explicitly determined that where all the evidence upon the question of the qualification of the juror is oral the trial court’s decision is conclusive (The State v. Moore, 79 Kan. 688, 100 Pac. 629; The State v. Bassnett, 80 Kan. 392, 102 Pac. 461) and the principle is the same where only a part of the evidence is oral. The situation here is not materially different. The juror was not called personally before the court upon the hearing of the motion, but the trial court had already heard him testify upon the subject matter of the inquiry while the jury was being impaneled, thus having an opportunity of observing his appearance and manner, which is denied to this court. The same situation was presented in The State v. McLemore, 99 Kan. 777, 784, 164 Pac. 161, where the overruling of a motion for a new trial was affirmed. The judgment in that case was afterwards reversed (101 Kan. 259, 166 Pac. 497)
' but upon grounds not relating to the qualification of the juror. The ruling on the motion for a new trial must be upheld.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On May 16, 1918, Merle A. Starr insured his life for $2,000 with the Great American Life Insurance Company. He died from influenza while in the military service of the United States in a hospital at Camp Meade, Maryland, on October 6, 1918. His administratrix brought this action against the company, recovering the full amount of the insurance. The defendant appeals on the ground that its liability was limited to the amount of the legal reserve on the policy — some $15.
1. The provision of the policy relied upon by the defendant reads:
“This policy is free from restrictions as to residence, travel and occupation or place of death, from the date of its issue, except military or naval or aviation service in time of war, for which permission must be obtained from the company, and an extra" premium, at the established rate shall be paid. In case of death of the insured in consequence of such service and without the company’s permit, the liability of the company hereunder shall be for an amount not greater than the legal reserve on this policy.”
Under various assignments of error the defendant contends that by virtue of the first sentence of this clause in order to keep the insurance in full force the insured was required in case he entered the military service in time of war to obtain permission from the company and pay an extra premium. The- trial court held, and we approve the holding, that by virtue of the second sentence the effect of the omission of the insured to take such steps is limited to a reduction in the amount to be paid in case his death should result from a risk peculiar to the military service. It is not enough that while in the service he should die — that his being in the service should furnish the condition-or situation under which death overtook him through an agency not dependent thereon; the relation of cause and effect must exist between the two facts. This seems the natural and obvious reading of the clause quoted, but if there is an ambiguity it should be resolved against the insurer in accordance with the general rule. The construction adopted was given to substantially the same language in Gorder v. Lincoln Nat. L. Ins. Co., 46 N. D. 192, and to similar language in Malone v. Life Ins. Co., 202 Mo. App. 499.
2. Complaint is made of the giving of this instruction:
“You are further instructed that the mere fact alone that the insured, Merle A. Starr, after the execution of the policy of insurance sued upon herein, entered into the military service of the United States, is not sufficient to defeat a recovery of the face value of the policy sued upon, but it must further appear from the evidence that the deceased Merle A. Starr, after he entered the military service of the United States of America, died as a result and in consequence of such service. If you shall find and believe from the evidence in this case that the said Merle A. Starr died while in the military service of the United States of America, of some disease peculiar to, or occasioned by, extra hazard incident to such military service, and as a consequence thereof, then and in that event plaintiff would only be entitled to recover the amount shown by the evidence in this case to be the legal reserve of such policy of insurance, at the time of his death. On the other hand, if you should find and believe from the evidence herein by a preponderance thereof, that the insured Merle A. Starr, while in the military service of the United States of America, died of some disease, common to military and civilian life, and did not die of some disease peculiar to, or occasioned by,, extra hazard, incident to such military service, and in consequence thereof, then and in that event it would be your duty to return a verdict in favor of plaintiff for the sum of $2,000.00, together with six per cent interest thereon from the 6th day of December, 1918, to the date of the rendition of your verdict.”
Of this the defendant says: “The substance of this instruction .was to give the jury the impression that if the influenza prevailed in civil communities as well as in military camps, then the death of the insured could not be in consequence of his military service; and this notwithstanding the fact that the evidence in this case shows clearly and absolutely that there was a greatly increased danger not only from infection, but of death after infection at Camp Meade, Maryland, because of the congested conditions and overtaxed medical facilities.” We do not regard the instruction as open to this criticism. Its entire contents are to be construed in the light of its first sentence, which declares explicitly that the plaintiff is not entitled to recover if Starr died in consequence of his military service. It does not say that if he died of a disease common to military and civilian life the company is liable, but that the liability depends upon the existence of the further condition that he “did not die of some disease peculiar to, or occasioned by, extra hazard, incident to such military service, and in consequence thereof.” By what we consider a fair and reasonable interpretation of the entire instruction the w'ord “disease” is to be regarded, not as referring to the generic name of the ailment from which he suffered->-influenza — but to the specific pathological conditions which in his particular case caused death, which might have been affected by inadequate facilities for medical attention after he had contracted the influenza. While the language might well have been made more definite in this regard no instruction was asked which directed attention specifically to this phase of the matter.
Of the requested instructions which were refused one was to the effect that the mere fact that the insured might have contracted the influenza and pneumonia if he had remained in civil life did not indicate that his death was not in consequence of his military service, and that although the epidemic prevailed in civil communities a death therefrom might be in consequence of military service. Another stated that the military service clause of the policy was not limited to deaths in actual combat or warfare or injuries resulting therefrom, but included any consequence of military service, whether in a military camp in this country or elsewhere. A third was in substance that the clause was reasonable and the defendant had a right to make it. We think the propositions set out in the first two were sufficiently indicated in the instruction already quoted, and the third was unnecessary. A fourth was that if certain conditions existed at Camp, Meade the death of the insured was in consequence of military service. The question it undertook to settle was one of fact and not of law.
3. Two medical witnesses were permitted to testify concerning the regulations and methods of treatment of the sick in the army generally, over the objection of the defendant that this was not the best evidence and did not relate to the particular camp at which the insured died. The evidence concerned the general practice and was admissible for its bearing on the probable effect of army life upon the risk of death from influenza.
Complaint is made of the sustaining of an objection to a question in the deposition of a witness for the defendant. The abstract does not show what answer, if any, was excluded, and the ruling is therefore not reviewable. The agent who sold the insurance was a witness for the defendant and testified in chief that he had received his net commission. He was asked on cross-examination how much he got. An objection that this was immaterial was overruled and the ruling is complained of. The question seems immaterial but not more so than his testimony as to receiving the commission, and at all events it was not seriously prejudicial.
On the outside of the policy a statement was printed that “In event of death notice should be given immediately to the company at Hutchinson, Kansas, and it is not necessary for the insured or the beneficiary to employ any person to collect any benefit provided in this contract, and that time and expense would be saved by writing direct to the company or its agent.” The petition alleged this fact and the defendant moved to strike out the allegation as immaterial. It might have been important as tending to excuse informality or irregularity of proofs of death, and at all events Was not prejudicial. The court was asked to instruct that the statement had no application to the case and should not influence the verdict. We think such an instruction unnecessary. The court overruled a motion to make the petition more definite (by setting out specific facts concerning the military service of the insured), a demurrer to the petition, and a demurrer to the evidence. The points raised by the demurrers have already been passed upon. Obviously the defendant was not misled by any indefiniteness in the petition, for the court instructed the jury that the insured for some time before his death was in the military service and that before the plaintiff could recover she was required to prove by a preponderance of the evidence that his death was not in consequence of such service — a burden by the way which probably should have been placed on .the defendant. (Gorder v. Lincoln Nat. L. Ins. Co., 46 N. D. 192.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages to a farm through the negligence of the lessee of the oil and gas rights thereon.
The lessee had developed several producing oil wells on plaintiff’s farm, and several wells on another farm, known as the Furnas property,-adjacent thereto. According to plaintiff’s petition, defendant had negligently permitted salt water pumped from these oil wells to flow over and ruin four acres of plaintiff’s grassland, also to ruin a well, and that defendant had deprived plaintiff of the use of two acres of land by laying shackle -rods, lines and stakes thereon for the purpose of1 pumping the oil wells on the neighboring Furnas property. Plaintiff asked damages, viz.: To four acres of grassland, $200; to well, $50; to unauthorized occupancy of two acres of -land for shackle rods, etc.; to pump wells on Furnas lease, for two years,- $80. •
Defendant answered, among other matters, that prior to October 18, 1918, plaintiff had made a similar complaint to that contained in- his petition, and that he then entered into negotiations with defendant which culminated in a written agreement composed of all matters of controversy between the parties. • This .agreement reads:
' “Agreement.
“In consideration of the Continental Oil and Refining Company making improvement upon a ditch running along fence on the west line of the Furnas land, about six hundred feet, so that the salt water will empty back in a natural watercourse on the Dixon farm, I hereby agree that when said improvement is made, to be satisfied in every particular.
“Dated this 18th day of October, 1918.
“The Continental Oil and Refining Company,
By A. W. Shulthis, President.
B. M. Furnas.
•E. Dixon.”
Defendant alleged that it had complied with this agreement. . It also pleaded the statute of limitations as a bar to the action! ,'
Plaintiff replied that the. ditch dug by. defendant was insufficient in size to carry the salt water back into the designated natural watercourse, which resulted in the damages to his grassland and well as alleged in hia petition.
Jury trial; verdict of $155 for plaintiff; judgment thereon; appeal.
Defendant presents a formal assignment of errors, but does not follow it seriatim in its brief; so the court is compelled to ignore the assignment and note whatever is broached in defendant’s argument .as containing the possibility of error.
It is suggested that since the action, in part, was for permanent damages to the four acres of grassland, the court should not have permitted testimony to be introduced concerning the loss of the hay. But the fact that the salt water had rendered the land unproductive for hay was certainly some evidence of permanent damage to the land.
Defendant contends that there was no competent evidence to show damages to the well. The testimony was that it had been a well of wholesome water; that it occasionally served the owner’s convenience for watering his teams and his cattle, and that it had been ruined by salt water from defendant’s oil wells. As to its value before its destruction, the testimony was—
“Q. State to the jury what the fair and reasonable value of that well was in 1921 before it was filled up with salt water, if you know? A. I would not have taken $50 for it.
“Q. Now after it was polluted with salt water, what was its value? A. Well, it is no good; stock won’t drink it.”
The testimony, “I would not have taken $50 for it,” was the typical language of a farmer in expressing values of matters and things with which he is familiar. It was competent in substance, and the form of expression was immaterial.
It is also contended that the written agreement of 1918 disposed of the controversy concerning damages to the four acres of grassland. The agreement speaks for itself, but plaintiff’s evidence-tended to show that the agreement was not complied with, in that no sufficient ditch was dug to dispose of the salt water. Plaintiff’s testimony reads:
“The ditch was dug from the north to the south, about 2 feet from the Furnas land, running north and south. Says that the north end of the ditch was 400 ft. or 500 ft. from the stream. The wells were not making much salt water at the time the agreement was drawn. At that time the salt water was running down across his place. After the agreement was drawn the ditch took care of the salt water until about 1921, when the wells increased the salt water, when they pumped them day and night almost. This was about August, 1921. The excess salt water then just flowed over that patch of ground whenever it could get away. That was the first time it had flowed over that patch of ground (referring to the meadow complained of). This occupied between three and four acres. Before this grass had grown there. The land is of no use now and gets nothing off of it.”
The defendant bound itself by the agreement to dig a ditch which would convey the salt water to a natural watercourse. It cannot be admitted that when the salt water is permitted to flow over and damage or ruin four acres of meadow that such agreement has been complied with according to its tenor and intent.
It is argued that plaintiff’s action is barred by the statute of limitations. Whether any damage by the salt water up to 1918 was barred or not, the damage ensuing since the agreement of 1918 was made and broken was not barred; neither by the pleadings nor by the evidence. A litigant who relies on the statute of limitations for reversible error ought to set out the dates or specify the limitation periods on which he relies. They are not shown by the record presented.
It is contended that the evidence was insufficient to show damages for the wrongful occupancy of plaintiff’s land with rods, stakes, etc., used as equipment to pump the oil wells on the Furnas lease. There was testimony that adjacent land produced crops worth $20 per acre per annum and that two-thirds of that sum was profit. Since the total verdict for plaintiff was only for $155 and the jury was not asked to itemize, and there was some evidence to show substantial damages on each of the items of damage alleged, it is impossible to trace error into the amount of the verdict and judgment.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff is seeking to recover damages arising from the sale- of personal property pledged to secure the payment of promissory notes. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The plaintiff executed to the defendant four promissory notes aggregating $6,800 and, to secure the payment of each note, pledged a motor truck. The notes were ordinary promissory notes, except that each contained a description of the truck deposited as security therefor and authorized the defendant to sell the truck “without notice at public or private sale at the option of said company in case of the nonperformance of this promise, applying the proceeds to the payment of this note, including all charges.” The notes were not paid at maturity; the defendant sold the trucks at private sale for $6,800; and the purchaser paid the interest on the notes and the expenses of the sale, $81,43.
The case was tried by a jury, which answered special questions as follows:
“Q. 1. What was the fair market value of each of the solid tire trucks at Wichita, Kansas, on the 18th day of August, 1920. A. The amount defendant received for same.
“Q. 2. What was the fair market value of each of the pneumatic tire trucks at Wichita, Kansas on the 18th day of August, 1920? A. The amount defendant received for same.
“Q. 3. Where were the trucks sold by defendant? A. At defendant’s warehouse.
“Q. 4. To whom were they sold by defendant? A. J. J. Hawes.
“Q. 5. Did defendant exercise due diligence in endeavoring to sell the trucks at their fair and reasonable market value? A. Yes.
“Q. 6. From what source, if any, disclosed by the evidence could defendant have obtained a higher price for the trucks than it did obtain? A. Apparently none.
“Q. 7. What could defendant have done that it did not do to obtain a higher price than it did for the trucks? A. Apparently nothing.
“Q. 8. If you answer question number five in the negative then state what price defendant could have obtained by the use of due diligence. A. X.
“Q. 9. If you answer question number eight, state when defendant could have obtained such price. A. X.
“Q. 10. Did defendant notify plaintiff that it would sell the trucks if the notes were not paid or reduced in amount. A. Yes.
“Q. 11. Did defendant notify plaintiff after the notes were due and before the sale that the trucks would be sold at private sale? A. Yes.
“Q. 12. Did defendant notify plaintiff of the time and place of sale of the trucks? A. Yes.
“Q. 13. Did plaintiff’s manager, True, talk to defendant’s manager, Brough, a short time — possibly a day or two — before the sale and tell Brough in substance that he, True, had a deal on to sell some of the trucks in defendant’s warehouse? A. No.
“Q. 14. Referring to question number thirteen, did Brough thereupon say to True in substance, ‘Alright, I have not sold the trucks, and I am not making any special effort to?’ A. No.
“Q. 15. If you answer question number thirteen in the affirmative, state whether or. not the sale of these trucks by defendant was made within a day or two at most after this conversation and without notice or other communication between the plaintiff and defendant or these managers. A. X.
“Q. 16. If you find for plaintiff, do you base your verdict on any fraudulent conduct of defendant that may have been disclosed in the .evidence? A. X.
“Q. 17. Did defendant act in good faith in selling the property? A. Yes.
“Q. 18. If you answer question number seventeen in the negative, state wherein defendant failed to exercise good faith. A. X.”
1. The plaintiff complains of the exclusion of evidence. To present the position of the plaintiff concerning this matter, we quote from its brief as follows:
“Our whole-case rested on this transaction:
“One day in August, 1920, apparently the 18th plaintiff’s manager called defendant’s manager on the telephone and asked if the trucks had yet been sold, and was told that'they had not, whereupon, plaintiff’s manager advised that he had purchasers for 'two and possible three of these trucks. Plaintiff’s manager testified that defendant’s manager assented to this and advised that he was not making much of an effort to sell them anyway. Defendant’s manager testified that in response to this information he said T was endeavoring everywhere to sell them, and if he beat me to it, I would be that much more pleased.’
“Following this conversation, plaintiff proceeded to close a deal with two purchasers and made out papers covering one of the pneumatic tired trucks and one of the hard tired trucks in the warehouse. While these papers were being made up, the day after the above-mentioned conversation, a letter came from the defendant’s manager, written the day before, saying the trucks were not available, as he had sold them that day by long distance telephone for face of the notes and some minor charges. Plaintiff had two of them sold, and the papers nearly completed, for more money than the defendant got for the four.”
B. C. True, the manager of the plaintiff, testified that at the time of receiving the letter from the defendant notifying it that the trucks had been sold, he was negotiating for the sale of two of the trucks pledged to secure the payment of the notes, but that on receiving the letter, he ceased those negotiations and sold to the persons with whom he had been negotiating two other trucks of the same weight and model for $3,800 and $3,150, respectively.
Ethel True, the wife of B. C. True, was placed on the stand as a witness and was asked if she knew the state of the negotiations with reference to selling the two trucks when the letter above mentioned was received. Objection to the question was sustained. The abstract shows that the following then occurred:
“Plaintiff offers to prove by the witness on the stand that she received in the office of the Sunflower Truck and Tractor Company, this letter of August 18th from the defendant, notifying plaintiff that the trucks had been sold, and that at the time of the receipt of the letter, she had already made out papers for selling two of the trucks in the warehouse, and had placed the number of those trucks on the papers, and the price at which they were to be sold, and that she at once notified her husband, Mr. True, of the receipt of this letter, and that he thereupon called the manager of the defendant’s company and had a conversation with him, relating to this letter, and to the sale .of these trucks.
“The Court: The proffer as a whole will be refused.
“Mr. Hasty: Well, we could not make them separately. I don’t know how we would make this offer separately.
“The Court: Well, you have got a bunch of matter in there that is certainly incompetent.
“Mr. Hasty: That stands' as our offer.
“The Court: All right. The proffer will be refused, for the reason the court cannot pass on it in part.”
An affidavit of Ethel True was produced on the hearing of the motion for a new trial. That affidavit tended to support the offer of proof made by the plaintiff.
On July 16, 1920, the defendant in writing notified the plaintiff that the notes must be reduced or taken up and that in the event the plaintiff should fail to do either, it would be necessary for the defendant to dispose of the trucks to satisfy the notes. The notes were due on July 29, 1920. They were not paid, and the defendant sold the trucks on August 18, 1920. The defendant had the right to sell the trucks at private sale without regard to any effort the plaintiff might make to sell them. Because the defendant sold at private sale, it was compelled to exercise due diligence and to .secure a fair price. There was evidence which tended to show that it did both, and the jury found accordingly. When the defendant sold the trucks, all rights of the plaintiff therein terminated. It could not thereafter sell them for any price. The defendant had the right to sell the trucks at any time until it received the payments requested in its letter of July 16. The sale by the plaintiff was too late, and evidence of that sale was incompetent. The plaintiff probably offered the evidence to show that the defendant did not secure a fair price for the trucks. Evidence of a sale of other trucks by the plaintiff at a price greater than that received by the defendant did not tend to prove that the price received by the latter was not a fair one, nor that the defendant had not exercised diligence in selling the trucks.
2. The plaintiff contends that the special findings of the jury were contrary to the evidence. To establish this contention, it is necessary to show the part of the evidence which the jury must have believed was not true. There was evidence contrary to the answers to some of the special questions, but there was evidence to support each of those answers. That being true, this contention cannot be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendants were, convicted of robbery, and appeal.
It was charged, in substance, that on the 24th of March, 1922, the defendants made an assault by pointing a revolver at H. E. White, and demanded that he throw up his hands, and, by force and violence, robbed him of personal property, consisting of $65 in money and a .44 calibre revolver.
The testimony showed that the complaining witness, H. E. White, while accompanied by his brother-in-law and their respective wives, was held up and robbed on a country road some five or six miles out of Wichita, in the direction of Udall; that White resided in El Reno, Okla., to which place he had started from Wichita about seven o’clock on the day of the robbery; that the defendants were •driving a Studebaker car; that when the hold-up took place Mrs. White said, “Mister, this is the first time in my life I was ever held up and I always wanted to see a real live highjacker,” and he laughed and said, “With pleasure,” and stood there and threw the. light so that she could look át him; that complaining witness and his party drove as far as Udall and then, on account of muddy roads and bad tires, returned to Wichita.
The defendants, to prove an alibi, -introduced testimony of various witnesses to show that about the time of the alleged robbery, they were in a.pool hall in Wichita.
The defendants assign as error the admission and exclusion of testimony, erroneous instructions of the court with reference to the alibi, misconduct of the county attorney in the trial of the case and overruling of a motion for a new trial.
1. The defendants complain that the court erred in admitting incompetent, irrelevant and immaterial testimony by permitting the county attorney to cross-examine the witness, Hess, as to why he had quit the police department. The purpose, of course, was an attempt to discredit the testimony of the witness. It has been re-' peatedly held that the extent to which a witness may be cross-examined is largely in the discretion of the trial court, and that, unless prejudice is shown, or, that the court abused its discretion, there will be no reversal. On cross-examination a witness may be interrogated concerning his past conduct and character, and as to specific acts which tend to discredit him for the purpose of impairing his credibility, although such acts may be irrelevant and collateral to the principal.controversy in the case. (The State v. Pugh, 75 Kan. 792, 90 Pac. 242, and cases cited.) We have examined the complaints of defendants with reference to the admission and rejection of testimony, but find nothing of a substantial nature showing any abuse of discretion by the court, or any prejudice to the rights of the defendants.
2. Defendants next complain of the , 16th instruction. This instruction was as follows:
“You are further instructed that one of the defenses made by the de fendants in this ease is what is known as an alibi, that is, that the defendants were in another place at the time of the commission of the crime. This is a proper defense, if proven; and if, in view of all the evidence, the jury have a reasonable doubt as to the presence of the defendants at the time when and the place where the crime was committed they should give the defendants the benefit of the doubt and find them not guilty. The defendants are not required to prove an alibi beyond a reasonable doubt or even by a preponderance of evidence. It is sufficient to justify an acquittal if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged, if you find that a crime was committed. You will understand, also, that the attempt of the defendants to prove an alibi does not shift the burden of proof from the prosecution but that the prosecution is bound to prove his presence beyond a reasonable doubt. The testimony, offered to prove this defense should be subjected, like all the evidence in the case, to rigid scrutiny, for the reason that witnesses, even when truthful, may be honestly mistaken of, or forgetful of, times and places.”
The instruction was very similar to one given in the case of The State v. Price, 55 Kan. 610, 40 Pac. 1001. The court there said:
“This instruction, taken as a whole, did not cast on the defendant the burden of proving his absence from the place where the crime was committed, but distinctly -told the jury that if they were in doubt as to his presence they should give him the benefit of that doqbt. It would be hypercritical to hold this instruction erroneous merely because a disconnected portion of a sentence would be erroneous standing by itself.”
3. Complaint is made of the conduct of the county attorney in the trial of the case. In his argument to the jury,' the county attorney stated: “I do not know whether it was too strong for this man, Smith’s, wife or not, but she surely did not take the stand to testify.”
It was error for the county attorney to make the statement. The only question for our consideration now is whether the statement so made prejudiced the rights of the defendants. Section 293 of criminal procedure, being section 8215, General Statutes of 1915, is as follows:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”
In State v. Peterson, 102 Kan. 900, 171 Pac. 1153, it was said:
“Under this statute it has been repeatedly held- that to cause a reversal of a judgment in a criminal action, the error committed must affect a substantial right of the defendant. In The State v. Brooks, 74 Kan. 175, 85 Pac. 1013, this oourt said: ‘To justify a reviewing court in ordering a new trial in a criminal case because of the infraction of the statutory rule that the omission of the defendant to testify shall not be considered by the jury, it must conclusively appear that the jury or some one of them, in arriving at a verdict, gave weight to the fact that the defendant did not take the stand' in his own behalf, as a circumstance tending to establish his guilt.’ (Syl. If 2.) This rule was followed in The State v. Dreiling, 95 Kan. 241, 147 Pac. 1108. In The State v. Fleeman, 102 Kan. 670, 171 Pac. 618, this court said: ‘The code of criminal procedure was framed to supersede the common law with a more rational system. While it is defective in many respects, and in many others exhibits a conservation which contrasts strongly with its general liberality, it is distinctively modern. The tradition of the common law, however, was so strong that it came near superseding the code. In time the code was rediscovered, and it is the purpose of the court to interpret and apply it according to its true intent and spirit.’ (677.) Under all the circumstances, it is highly improbable that the verdict of the jury was influenced by the remark of the county attorney. It does not appear that the jury was so influenced and, therefore, the judgment will not be reversed.” (p. 902.)
In the instant case, upon objection, the remark of the county attorney was immediately withdrawn from the consideration of the jury both by the county attorney and by the court. It is not shown, and does not appear at all probable that any prejudice resulted to the defendants because of the erroneous statement.
4. Error is claimed by the defendants because the court refused to grant a new trial on account of newly discovered evidence. The newly discovered evidence, as shown by a number of affidavits was evidence going only to the credibility of the complaining witness, White. This court has held in a number of cases that a new trial should not be allowed when such evidence appears to be competent only for the purpose of impeaching witnesses of the opposite party.
In The State v. Lackey, 72 Kan. 95, 82 Pac. 527, it was said:
“A new trial should not be allowed on the ground of newly discovered evidence when such evidence appears to be competent only for the purpose of impeaching the witnesses of the opposite party or when it is merely cumulative.” (Syl. If 3; see, also, The State v. Wallace, 110 Kan. 565; The State v. Stickney, 53 Kan. 308, 36 Pac. 714; The State v. Smith, 35 Kan. 618, 11 Pac. 908; Clark v. Norman, 24 Kan. 515.)
In the opinion it was said:
“The granting or refusal of a new trial is largely within the discretion of the trial court. The court sees and hears the witnesses, and has a better opportunity to know whether justice has been done than this court can have, and its ruling on such a motion has something of the standing of a finding of fact deduced from conflicting evidence and should not be disturbed except for error of law or for a manifest disregard of facts amounting to an abuse of discretion. (City of Sedan v. Church, 29 Kan. 190; Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064; Shepard v. Lynch, 26 Kan. 377.)” (p. 99.)
We find no reversible error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal is taken from an order overruling a demurrer to a stockholder’s petition praying for appointment of a receiver for a corporation and from an order appointing a receiver.
In'June, 1921, L. H. Bowenpurchased from R. Romer a one-half interest in a flour mill at Larned. The mill was not completed, and was not put into operation until October. In October the partners incorporated, and Romer executed to the corporation a bill of sale of the mill, elevator, machinery, equipment, office fixtures, supplies, business connections, good will, and flour brands and trade-marks. Romer was elected president. Bowen was elected vice president and treasurer, but he did not qualify as treasurer, and has handled none of the corporate funds. I. R. Romer, the president’s son, was elected secretary. At the organization meeting the board of directors gave Romer charge of all grain bought and sold, and gave Bowen charge of milling grain, marketing flour, and purchasing bags. Bowen gave instructions to the miller relating to kinds and quality of flour to be manufactured and relating to other milling subjects, and then devoted himself to marketing the products of the mill, with headquarters at Independence, Kan. The Romers took charge of the mill and elevator, and have exclusive custody and control of the corporate property and funds and exclusive management of the corporate affairs, aside from procuring orders for flour. The corporation had insufficient' working capital, and the Romers finally defeated Bowen’s selling operations by cancellation of orders.
The mill is well located with reference to the wheat-producing district of the state, and has a capacity of 400 barrels of flour per day. In the period commencing October 1,1921, and ending December 31, the mill was operated 19 days, with an average daily output of 387 barrels. In the period commencing December 31 and ending March 31, 1922, it was operated 15% days, with an average daily output of 308 barrels. Between March 31 and May 31 it was operated 3% days, and between May 31 and July 15, 2% days. On July 15, 1922, the corporation had liabilities amounting to $14,126.83, consisting principally of bills payable and unpaid grain checks, and the net deficit of the enterprise on that date was $7,622.97. The corporation had no sales organization, and was. simply supplying flour to local trade.
The petition traced the condition of the corporation to misconduct of the Romers, and charged them with various acts of usurpation and wrongdoing which may be conveniently comprehended under the term, breach of trust. The prayer was for immediate appointment of a receiver, for an accounting, for delivery of corporate assets wrongfully appropriated and withheld by the Romers, and ultimately for sale of the corporate property, payment of its debts, and distribution of the remaining assets.
The court heard much evidence, and caused the affairs of the corporation to be audited before appointing a receiver. The evidence was conflicting, and on this appeal the rule applicable to such cases must be observed. The following stipulation relating to material facts, submitted to the court at the hearing, is pertinent to the questions of law to be discussed:
“It is hereby stipulated and agreed by and between the parties to this action that R. Romer, I. R. Romer and W. H. Romer own respectively 380, 100 and 20 of the capital shares of stock known as the Bowen-Romer Flour Mills Corporation, a corporation.
“That plaintiffs L. H. Bowen, C. E. Bowen and J. W. M. Goff own respectively 380, 60 and 60 shares of the capital stock of said corporation.
“That because of such distribution of the capital stock of the corporation and the dissension of the stockholders there exists a deadlock in the voting power of the stock of the corporation between the plaintiffs and the defendants, and that it would be useless to convene, and hold a meeting of the stockholders.
“That the board of directors of the corporation at this time is composed of R. Romer and I. R. Romer, defendants, and L. H. Bowen and J. W. M. Goff, plaintiffs.
“That the office of the fifth member of the board of directors is vacant.
“That because of the dissensions among the members of the board of directors, there exists on the board of directors a deadlock, and it is useless and impractical to convene or hold a meeting of the board of directors of the corporation, and that the directors of the corporation are unable to select a suc ce'ssor to fill the vacancy caused by the resignation of the fifth member of the board of directors.
“That that condition has existed from the 4th day of-March, 1922.
“It is further stipulated and agreed that on the 6th day of April, 1922, L. H. Bowen and J. W. M. Goff came to the city of Lamed, at the request of the president and secretary of the corporation, to convene and hold a directors’ meeting, said meeting to be held on a waiver of notice, but that it was agreed at that time that it was useless to convene and hold such meeting. That until this time there has been no further attempt to convene a directors’ meeting of the stockholders of the corporation.”
. The office of the fifth member is vacant because R. Romer purchased his stock, and thereby disqualified him.
• Defendants say appointment of a receiver for a solvent corporation is a last-resort remedy, which is true. Defendants say further, appointment of a receiver is a remedy available only when other substantial relief is sought, and not as ultimate relief. The precise holding of this court upon that subject is as follows:
“With few exceptions the appointment of a receiver is an ancillary remedy which can only be obtained in an action in which other substantial equitable relief is sought, and such appointment is not made when that is the ultimate object of the action.” (City of Parsons v. Water Supply and Power Co., 104 Kan. 294, syl. ¶ 1, 178 Pac. 438.)
Finally, defendants say the statute relating to dissolution of corporations requires an action for that purpose to be brought in the name of the state, and a court of equity has no authority except by statute to forfeit franchises, dissolve the corporation, wind up its affairs, and distribute its assets.. The precise holding of this court on that subject is as follows:
“In the absence of express statutory authority the court has no authority, at the. suit of an individual or minority stockholder, to dissolve a corporation, wind up its affairs and distribute its assets, and no such authority has been conferred in this state.” (Fees v. Bank, 84 Kan. 828, syl. ¶ 2, 115 Pac. 563.)
If plaintiffs do not constitute a majority of the stockholders, neither are they a minority. ' Because the stockholders are in a deadlock, the vacancy in the board of directors cannot be filled. Because of the deadlock in the board, the corporation has no managing body, as the law requires. No lawfully authorized and directed step can be taken to achieve the corporate purposes. One group of belligerents has possession of the corporate property and control of its business affairs, and is taking advantage of the opportunity, to oppress the other group. .Must this situation continue until the period of corporate existence expires, or until Bowen, unable to stand the financial strain, must sell his stock to Romer at Romer’s price, and so be frozen- out?
The legislature has authorized the appointment of a receiver in certain enumerated cases, and “In all other cases where receivers have heretofore been appointed by the usages of the courts of equity.” (Gen. Stat. 1915, § 7164, subdiv. 6.)
Courts of equity came into existence for the purpose of affording such relief as justice and good conscience required, under the peculiar circumstances of the case. In some jurisdictions, instead of keeping up with social progress, equity has set and hardened. Its potency to meet new conditions has been emasculated, and frequently the caution to be displayed and the limitations to be observed in appointing receivers, loom so large that, as the Missouri court has observed, judicial hesitancy degenerates into judicial atrophy. (Cantwell v. Lead Co., 199 Mo. 1.) In other jurisdictions a better view is taken, and the phrase, “by the usages of courts of equity,” means according to the informing spirit of equity heretofore manifested in the appointment of receivers.
In the case of Boothe v. Summit Coal Min. Co., 55 Wash. 167, the opinion reads:
“In the instant case, there is no control of the corporation by a'board of trustees, sustained by a majority of the stock, although originally the present board may have been legally elected. In practical operation there is no deliberative board. R. J. Linden has as full, complete, and dictatorial control as did Oudin in the case cited, and although the corporation here involved is solvent, such a condition is inequitable and should not be permitted. It does violence to the elementary idea that a corporation is to be controlled by a governing board representing a majority of the stock. No majority is in control, nor can it obtain control. The deadlock is complete, absolute, to all appearances permanent, and R. J. Linden arbitrarily controls and manages the estate of Boothe, whose rights are, and should be, equal to his. . . .
“In Gibbs v. Morgan, supra [9 Idaho, 100], the supreme court of Idaho well said:
“ 'The early Joctrine that the affairs of a corporation could not be inquired into except by permission of the attorney-general, and that courts of equity should not interfere with the power and authority of the directors of a corporation because that would result in its dissolution, has been modified to meet existing conditions. A large part of the business of the world is done through corporations, and it was held in Columbia Athletic Club v. State, 143 Ind. 98, 52 Am. St. Rep. 407, 40 N. E. 914, 28 L. R. A. 727, that the courts of equity should adapt their practice as far as possible to the existing state of society, and apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise, and should not from too strict an adherence to the forms and rules established under very different circumstances, decline to administer justice and to enforce rights for which there is no other remedy.’
“Mr. Cook in §746 of the 6th edition-of his work on Corporations says:
“ ‘A receiver will not be appointed at the instance of a stockholder, even though mismanagement is charged, there 'being no fraud, and no danger of insolvency. There is a limit, however, to this rule. The powers of courts of equity to appoint receivers are very broad. Thus a court of equity has power to appoint a receiver where there is such fraud or dissension as to make it impossible for the corporation to carry on its business honestly and to the advantage of its stockholders. Such receivership, however, will be granted only in extreme cases and will be limited in time and extent, so far as the circumstances will permit.’
“While we recognize and adhere to the doctrine that a court of equity should hesitate before appointing a receiver over a solvent corporation, and should make such an appointment in exceptional instances only, yet we are constrained to hold that equity, good conscience, justice, and the rights of the parties demand such an appointment in this case.” (pp. 177, 178, 179.)
Of course the district court cannot dissolve the corporation. There is a distinction, however, between' forfeiting franchises and dissolving a corporation and closing up business affairs. (1 Morawetz on Private Corporations, § 282.) In equity, impossibility of attaining corporate objects is as good.ground for putting an end to operations as inevitable insolvency (1 Morawetz, §§ 284, 285, and cases cited), and if it shall be found impossible for this corporation to function as1 a corporation through its own proper agencies, no reason is apparent why its business should not be wound up and the assets • distributed.
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Per curiam.:
Wichita has an ordinance prohibiting the maintenance of gasoline pumps (or other contrivances for the distribution of gasoline) on the curb of a street or alley. The plaintiff brought this action to enjoin its enforcement on the ground that the city had no power to enact it. He appeals from the denial of his application for a temporary injunction. Cities of the first class have general authority “To make all needful police regulations necessary for the preservation of good order and the peace of the city, and to prevent injury to or the destruction of or interference with public or private property” (Gen. Stat. 1915, § 1508) and specific authority to “prohibit awnings, awning-posts, and all other structures or projections projecting upon, over or adjoining the street or sidewalk.” (Gen. Stat. 1915, § 1525.) The question as to what obstructions are to be permitted on the streets is for the determination of the city commissioners, the matter being one in which they must necessarily exercise a wide discretion. Of course a par ticular regulation might be so arbitrary or unreasonable as to be held invalid by a court, but the present case does not appear to us to trench upon even doubtful ground. The plaintiff suggests that the ordinance is unreasonable because it forbids the maintenance of a gasoline pump on a little-used street as completely and absolutely as though it were at a crowded business corner. The problem of regulating street obstructions is a practical one, to be solved by the city commission and -not by the courts. This case is within the principles discussed and applied in Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194, and Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action upon an accident insurance policy. There was a. verdict and judgment for plaintiff, and defendant has appealed.
The petition contained the usual allegations for such an action, and had attached to it a copy of the policy sued upon, including a rider indemnifying for injuries from pyrogenic infection. The answer, after admitting the execution of the policy, contained a general denial, and averred that plaintiff had made false answers to material questions in his application for the policy which he had warranted as true and which had been relied upon by defendant in issuing the policy. The reply was a general denial.
Among the answers given by plaintiff in his application for the policy, and which he warranted as being true, were the following:
“Has any application ever made by you for life, accident or health insurance been declined? Answer as to each: No.
“Has any life, health or accident policy issued to you been canceled? Answer as to each: No.
“Has any renewal of a life, accident or health policy been refused by any company or association? Answer as to each: No.”
Defendant contended that the second portion of this question was falsely answered, for the reason that in 1915 plaintiff had policies in three accident insurance companies which were canceled, and offered evidence tending to show that fact. Plaintiff in his testimony admitted that he had three accident insurance policies; said he had received an injury which resulted in a fractured arm; that he presented a claim under each policy; that he was not satisfied with the settlement made, and that he had surrendered the policies by going personally to the general office of the respective companies at Kansas City, Mo., and turning his policies in and receiving the unearned premiums thereon. On this question the court instructed the jury as follows:
"In regard to this I instruct you that the cancellation contemplated by the question related to cancellation by other insurance companies when exercising their option under the policy to cancel same, and does not refer to a cancellation by the plaintiff himself or the assured because of being dissatisfied with the manner in which his claims were handled or other conduct on the part of the insurance company objectionable to him.”
Appellant complains of this instruction, and says that by it the court has changed the question asked in the application so as to read, "Has any life, health or accident policy issued to you been canceled by the company issuing the same?” and contends that that was not within the province of the trial court. Considering question eight as a whole, it is clear the company wanted such information as would indicate whether or not any company had ever declined to insure the applicant or canceled the policy issued to him or refused to renew a policy previously issued, and so construed the question is material. It was of no importance to the company to know whether or not the applicant had voluntarily surrendered a policy, even though technically it might have been marked canceled, or whether he had let one lapse by reason of nonpayment, for under such circumstances the act would not indicate anything detrimental to the applicant as a risk. In 1 C. J. 423, speaking of false warranties in an application for accident insurance and the interpretation which should be given to them, it is said: “So also the voluntary surrender of a policy is not a breach of a warranty that no other insurance has been canceled.’-
In Smith v. Insurance Co., 36 N. B.. 300, Smith had two accident policies with one insurance company, and sustained an injury, for which he made claim. After some controversy the amount payable was agreed to. The company, in remitting to its local agent, sent a check for the amount agreed to be due upon the claim, and stated, “As we are desirous of retiring from the risk we inclose a further check” for the unearned premium, and asked its local agent to take up the policies in making settlement of the claim. The agent did not read the letter to the insured, but handed him the check for the amount of the settlement and asked him if he was willing to surrender the policies on the unearned premiums being returned. To this the insured assented. The agent then gave him the check for the unearned premiums and the insured delivered the policies. Thereafter he made application to another insurance company for accident insurance and stated in his application, “No accident policy ever issued to him had been canceled by this or any other company, corporation or association, except as herein stated.” No exceptions were stated. In an action upon this last policy the defense was that this answer was false, and that it avoided the policy. The court held “that the putting an end to the policy with the consent of the plaintiff was a surrender and not a cancellation, and was not a breach of the warranty that no policy issued to him had ever been canceled.”
In Wells v. Great Eastern Casualty Co., 40 R. I. 222, the application contained this statement: “No accident, sickness or life insurance policy issued to me has ever been canceled or renewal refused except as follows — no exceptions.” In an action upon the policy it was contended that this ’statement warranted to be true in the application was false. It is contended by plaintiff that the policy was surrendered instead of canceled. The court, in discussing the matter, said:
“In requiring that an applicant state whether an accident, sickness or life insurance policy issued to him had ever been canceled the defendant must be held to have referred to cancellation by the insurer and not to a policy voluntarily surrendered by the insured, even though the policy so surrendered had been marked ‘canceled’ by the insurer. An insurance company might well regard it as a fact material to be known by it in passing upon the acceptance of a risk, that insurance previously secured by the applicant had been regarded by the insurer as an undesirable risk and had been canceled. The fact that there had been a previous voluntary surrender of an insurance policy by the insured would be of slight, if of any, importance. If the defendant regarded the previous surrender of a policy by the applicant as a fact material to be known by it, it should have specifically required information as to that as well as concerning the prior cancellation of any policy.” (p. 228.)
The instruction given correctly interpreted the purpose of the question. The court properly submitted to the jury whether the policies had been canceled at the instance of the companies which had issued them or whether they had been surrendered by the assured. The evidence in this case was sufficient to support a judgment that they had been surrendered by the assured rather than canceled by the companies.
Defendants as one of its defenses averred that plaintiff had made a false warranty in his answer to question nine in the application, as follows:
"Q. Have you ever made claim for or received indemnity on account of any injury or illness? If so, give companies, or associations, dates, amounts and causes. A. Yes, about eight years ago, have forgotten name of company.”
The' contention was that this answer was false and fraudulent, in that plaintiff in 1915 had made claim for and received indemnity on account of injury from three different companies, and evidence was offered tending to support that fact. In his instructions the court in effect took this defense away from the jury. Appellant complains of that ruling. The question included five elements, viz.: (1) Have you made a claim? (2) name of companies; (3) dates; (4) amounts; and (5) causes. He answered (1) yes, which is conceded to be true; (2) that he had forgotten name of companies, and there is no evidence to contradict that. Complaint is made that the word “company” is used in the singular, when in fact there were three companies. (3) About 8 years ago, when the correct date was in July,, 1915, less than 6 years. No attempt was made in the answer to give (4) amounts, and (5) causes. The answer was obviously imperfect and incomplete, but defendant issued the policy thereon without any request that it be completed or perfected.
. The rule seems to be well recognized that when upon the face of an application a question appears not to be answered at all or to be incompletely answered and the insurer issues a policy without further inquiry, it waives the incompleteness of or failure to answer, as the case may be, and renders the failure to answer immaterial. (3 Joyce on Insurance, 2d ed., § 1870; Phœnix Life Ins. Co. v. Raddin, 120 U. S. 183; Smith v. N. A. A. I. Co., 46 Nev. 30.) The court did not err in taking this defense from the jury.
The policy sued on insured plaintiff against loss resulting from bodily injuries effected directly and independently of all other causes, “If such injuries independently and exclusively of all other causes shall wholly and continuously disable the insured from the date of accident from performing any and every kind of .duty pertaining to his occupation.” The evidence tended to show that about July 1, plaintiff, in going to a telephone in the night, injured his great toe by striking it against the furniture with such force as to drive the nail back into the flesh, causing an injury which required the nail to be removed, and for about ten days plaintiff was unable to conduct his business. That from about July 13 for about ten days he was able to be about the office and perform his work, when what proved to be a pyogenic infection developed, requiring him to go to the hospital, where he remained for some time and' was operated on several times. • Upon this phase of the case the court instructed the jury as follows:
“If you find and believe from the evidence that plaintiff’s great toe was injured by being struck against a chair or some object on or about the 1st day of July, 1921, and that such injury resulted in the cutting and bruising or abrasing of the toe to such an extent that it was infected by pyogenic germs from external inoculation through these cuts or bruises, then and thereafter until the 13th day of July following plaintiff was totally disabled from performing any and every duty pertaining to his occupation; that on said 13th day of July, 1921, said infection subsided for a period until the 23d day of July, 1921, to such an extent he was able to perform his said duties, and that on said 23d day of July, 1923, said original infection so produced from the injury to said great toe recurred, and that after said 23d day of July, 1921, plaintiff became totally disabled thereby and he was continuously disabled from performing any and every kind of duty pertaining to his occupation following such recurrence of said infection, then I instruct you he is entitled to recover, if you find for him on the other points, notwithstanding the fact of the temporary subsidence of such infection.”
Appellant complains of this, and contends that plaintiff was not continuously disabled longer than the first ten days after the accident; that any loss of time after that was not covered by the policy. The policy had a rider attached to it indemnifying for injury by pyogenic infection resulting from an accident. The evidence was that the pyogenic germs, or pus-creating germs, do not develop at once from the injury, but require time, in the natural course of events, for their development. An injury develops at once within the meaning of a policy of this character when it follows directly from the accidental hurt within such time as the processes of nature consume in bringing the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation. (Erickson v. Commercial Travelers, 103 Kan. 831, 176 Pac. 989, and cases there cited.) Hence the fact that it took ten days or more for the injury to develop in its ordinary course to such an extent that plaintiff was wholly incapacitated from performing any of his duties does not prevent the injury from being immediate and continuous within .the meaning of the policy.
Appellant complains that the court did not in his instructions define the term pyogenic infection. It had been repeatedly defined by the witnesses as pus infection. There was no question as to what the term meant, and it had been so frequently used and defined in the trial of the case that there was no necessity for special definition of it in the instruction. Several alleged errors in the conduct of the trial are complained of. We have examined each of them and find nothing in any of them to require a reversal.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a notary public’s bond for falsely certifying an acknowledgment of a mortgage by the makers thereof.
The plaintiffs’ petition alleged and the opening statement of their counsel narrated that plaintiffs contracted with one Jones for a loan of $1,500 on their homestead in Wichita. They executed a note and mortgage in favor of Jones and left these in charge of Jones, but did not acknowledge the mortgage before any notary public because the $1,500 was not immediately forthcoming. Later, at intervals during the next three months, Jones paid over to plaintiffs various sums of money aggregating $800. Meantime in some way, probably through some act or inducement of Jones, the defendant, N. E. Graves, a young woman having a notary’s commission, got hold of the mortgage and signed and sealed her notarial certificate thereon, reciting that plaintiffs had appeared before her and duly acknowledged the execution of the instrument. The mortgage was then recorded, and Jones sold the note and mortgage before maturity to The Ranchmen’s Trust Co., which had no' notice of defective title or other infirmity in them. Plaintiffs’ action against the notary and her surety bondsman is on the theory that if the notary had not falsely signed and sealed her false notarial certificate on the mortgage, it could not have been recorded and Jones would not have been able to dispose of the note and mortgage to an innocent holder, and their homestead would not have been pledged to the payment of $700 more than they owe.
The defendants demurred to plaintiffs’ opening statement and objected to the introduction of evidence. The demurrers and objections were sustained.
Plaintiffs appeal.
It would seem that plaintiffs’ pleadings and opening statement presented a cause of action. (Bellport v. Harkins, 104 Kan. 543, 180 Pac. 220, and citations therein.) It is true, of course, as argued by defendants, that the $1,500 note, being executed and left in Jones’s custody, could have been negotiated by him to an innocent holder and plaintiffs would have been liable thereon, although no mortgage had been executed and regardless of the fact that it never was acknowledged, and plaintiffs’ only recourse would have been an action against Jones. But without the false notarial acknowledgment, the mortgage could not have been recorded and their homestead thereby irrevocably pledged to the payment of $1,500 at- the suit of an innocent holder.
Defendants argue that “plaintiffs admit that they executed and delivered the mortgage.” On the contrary, plaintiffs’ opening statement, in part, reads:
“All that the plaintiffs ever did was to sign this mortgage and leave it there [with Jones] to be finished up and completed at a later date and that had not Miss Graves falsely and fraudulently in their absence placed an acknowledgment on this mortgage, that the mortgage could never have been recorded because it is one of the requirements that a mortgage or a deed must be acknowledged in order to entitle it to record and further that had it not been recorded — or acknowledged by Miss Graves, that The Ranch-men’s Trust Company nor no other innocent third person would have bought this mortgage; in other words we now allege that the mortgage and note are in the hands of an innocent third party for value and we are bound to pay them under the law of negotiable instruments and had she not falsely placed this acknowledgment on that paper, it could not have gotten into the hands of an innocent third party because they would not have bought this paper— The Ranchmen’s Trust Company would not have bought it. We specifically so allege and neither would any other innocent third party have bought this mortgage had it not been falsely and fraudulently acknowledged by the notary placing her seal and signature on an instrument which she had no right to acknowledge in the absence of either of the plaintiffs in this action. If we prove those facts, gentlemen of the jury, we will ask a verdict at your hands for the amount sued for in this action.”
It may be that if the note had not been backed by a mortgage having’an apparently regular acknowledgment, notarial certification, and registration, The Ranchmen’s Trust Company, an innocent purchaser, would have bought the note and mortgage. But our concern is not with what might have happened but with what did happen. The note was good between the parties for $800 and the mortgage was good for the same amount, without a notarial certification and without registration. But it was good for no more. As the matter now stands, the mortgage binds plaintiffs’ homestead for $1,500.
The notary perpetrated an actionable wrong on plaintiffs, and she and her bondsman must respond in damages therefor. (1 C. J. 902, and notes; 1 R. C. L. 308, 311.)
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for breach of promise of marriage. There was a jury trial, judgment for plaintiff, and the defendant appealed. The petition contained the necessary allegations for such an action. The answer admitted the engagement but averred (a) that the promise of marriage had been broken by mutual consent, and (6) that after the promise of marriage defendant learned there was insanity in plaintiff’s family, that he inquired of plaintiff about her father, but she would tell nothing and concealed from him the family Bible, or other record, containing her family history; that from other sources he learned that her father was insane, as was also her father’s half-sister; that her father had died April 8,1907, of pulmonary tuberculosis, at one of the state hospitals for the insane, and pleaded that plaintiff’s father was adjudged insane in the probate cqurt of Rush county, November 11, 1895, and by reason thereof he became obsessed with the idea that, should he marry plaintiff, their offspring would become insane, or would be imbeciles, or consumptives, and being fearful that the offspring would inherit the taint of plaintiff’s family, and knowing that both insanity and consumption are hereditary, he could not bring himself to carry out his promise, and averred that because of the reasons which prompted him he should not be required to respond in damages. The verified reply admitted that when plaintiff was about nine months old her father was adjudged insane, was committed to the state hospital for the insane and later died there, denied that the insanity was of a hereditary nature and denied other allegations of the answer.
As to the first defense pleaded, that the promise of marriage had been broken by mutual consent, the jury in answer to a special question found against the defendant. On this branch of the case, the defendant relied upon certain letters written by plaintiff, in which she said: “So you think I have another ‘beau.’ Well, I certainly have not; did not intend to, unless you say so. Suppose you would rather have some one else to talk to, do not blame you for that. I had not intended to go with any one else and more I would not break the promise that I once gave you unless I have to. . . . If you think I am going with some one else you are mistaken for I am not, and if you don’t want to keep company with me let me know and I will return the things you gave me. It was not my intention to quit, but if you think so then it probably must be, but just as you say for my feelings were hurt . . .” And in another letter: “. . . . So you think I don’t love you, I do, just as much as I always did, if I didn’t I wouldn’t told you so Xmas, but if you think I don’t and would-rather be alone; don’t let me hinder you, for I don’t want to cause hard feeling or be in any one’s way.” Appellant asks us to construe these letters as expressing a consent on her part to the breaking of the engagement. We think they are not susceptible of that interpretation.
In Nightingale v. Leith, 120 Maine 501, a letter, written by plaintiff to defendant after he had asked for the return of the engagement ring, contained this sentence: “But as I see that you don’t care for me and want to call it off you may. I don’t want to thrust myself on any one” (p. 504), was held not to show a rescission by mutual consent of the contract to marry. In view of some parol testimony, the trial court in this case left the question to the jury. Their special finding against the defendant is well supported by the evidence and is final on that question.
The questions arising out of the second defense are not so easily disposed of. Sections 6155 and 6157 of the General Statutes of 1915, as amended by chapter 230 of the Laws of 1919, read as follows:
“No woman under the age of forty-five years, or man of any age, except he marry a woman over the age of forty-five years, either of whom is epileptic, imbecile, feeble-minded or afflicted with insanity, shall hereafter intermarry or marry any other person within this state. It shall be unlawful for any person to many any such feeble-minded, imbecile or epileptic person, or anyone afflicted with insanity. Children born after a parent was insane shall not marry except under the above-named conditions, unless the parent or parents of such children shall have been discharged from the State Hospital for insane or any other legally constituted institution for the treatment of the insane more than nine months before the birth of the child, as cured and remained cured for a period of twenty years after such discharge.”
“No officer authorized by law to issue marriage licenses in this state shall hereafter issue such a license to any persons, either of whom is afflicted with any of the diseases mentioned in section 1 of this act, knowing them to be so afflicted, unless the female party to such marriage is over the age of forty-five years, but said officer shall in all cases ask of the party applying for a marriage license and require him to make answer thereto in writing under oath to the following question: Have you or has the person you are expecting to marry ever been afflicted with epilepsy, imbecility, feeble-mindedness, or insanity?”
Plaintiff was born February 16,1895, and was about twenty-seven years of age at the time of the trial; hence, the above statute applies to her, if her father was insane at the time of her birth. Defendant’s answer must be construed favorably to him to say that he plead a defense under this statute, but the trial court did not base his ruling upon the lack of the sufficiency of the answer and perhaps we should not do so; for, it was within the discretion of the court to permit an amendment to the answer, even though justice to the other side would require a continuance. The answer did not specifically plead that plaintiff’s father was insane at the time of her birth, but it did plead the adjudication of insanity of plaintiff’s father by the probate court of Rush county, on November 11, 1895, which adjudication tended to show that fact. At the trial defendant offered in evidence, from the records of the probate court of Rush county upon the inquest of the insanity of plaintiff’s father, John Witt, the following: The order of the court of November 9, 1895, reciting that an information had been filed alleging that John Witt was a person of unsound mind and incapable of managing his affairs, and praying an inquiry; it set the hearing for November 11, directed the sheriff to bring John Witt into court, and summoned six jurors, one of whom was a physician. The journal of the court of November 11,1895, of the hearing, which recited the presence of John Witt; that the jury was- chosen, witnesses called, evidence introduced, that the jury returned the following verdict:
“We the undersigned jurors, in the case of John Witt insane having heard the evidence in the case are satisfied that said John Witt is insane and is a fit person to be sent to the State Insane Asylum; that he is resident of the State of Kansas, and Rush County, that his age is 40 years; that the disease is of two years duration, that the cause is supposed to be melancholia with him heriditary, that he is not subject to epilepsy, that he does not manifest homicidal tendencies.” (Signed by jurors.)
This is followed by the judgment of the court that “John Witt is a person of unsound mind and incapable of managing his affairs,” and the order committing him to the state hospital for the insane. Also the “Statement in Lunacy,” consisting of questions and answers, those material to defendant being:
“5. When were his first symptoms of his disease manifested, and in what way? Two years ago.
“6. Is this the first attack? If not, when did others occur, and what were their duration? No; has been insane for two years.
“14. What relatives including grandparents and cousins have been insane? One half-sister.”
Plaintiff objected to these records for the reason that in her reply she had admitted that her father was adjudged insane when she was about nine months old, and on the trial admitted the date of the adjudication, and for the reason that the record offered contained evidentiary matters not properly a part of the judgment itself and which were prejudicial to plaintiff. The court sustained plaintiff’s position in the main, and so far as they could be separated admitted in evidence only that portion of the record showing the judgment of the court; and entirely excluded the “Statement in Lunacy.” Appellant complains of this ruling, and we think it was erroneous.
The statute under which the trial was conducted at the inquest is section 3681 of the General Statutes of 1889 (Laws 1876, ch. 91), which reads as follows:
“At the time fixed for the trial, a jury of six persons, one of whom shall be a- physician in regular practice and good standing, shall be impaneled to try the case, . . . The person alleged to be insane-shall have the right to be present at the trial, to be assisted by counsel, and to challenge jurors as in civil cases. . . . After hearing the evidence, the jury shall render their verdict in writing, signed by them, which shall embody the substantial facts shown by the evidence, which verdict, in the case of a person found to be a lunatic, shall be substantially in the following form:
“ ‘State of Kansas,-County, ss.
“We, the undersigned, jurors in the cáse of (naming the person charged to be insane), having heard the evidence in the case, are satisfied that said-is insane and is a fit person to be sent to the state insane asylum; that he is a resident of the state of Kansas and county of -; that his age is-years; that his disease is of-duration, dating from-first symptoms; that the cause is supposed to be-(or unknown); that the disease is (or is not) with him hereditary; that he is (qr is not) subject to epilepsy; that he does (or does not) manifest himicidal or suicidal tendencies.’
“Which verdict shall be signed by all the members of the jury; and to which verdict shall be attached a brief statement of the medical treatment in the case, as near as the same can be ascertained, which statement, together with any other information or circumstances known to him, and which may tend to throw light on the case, shall be signed by the physician or physicians upon the jury. Upon the return of the verdict, the same shall be recorded at large by the probate judge, and if it appear that the person is insane, and is a fit person to be sent to the insane asylum, the court shall enter an order that the insane person be committed to. the state insane asylum; . . .”
It will be noted that the statute requires the jury to return a verdict “which shall embody the substantial facts shown by the evidence,” and sets out a form of verdict which is the form used in this case; and to this verdict shall be attached a brief statement of “the medical treatment” and any “information or circumstances” which tend to throw light upon the case, which is the “Statement in Lunacy” in this case. The verdict shall be recorded “at large,” which we construe to include the statement required by the statute to be attached to the verdict.
A brief history of inquest for lunacy may assist us to understand ■the form and effect of the findings. Inquests in lunacy came to us from the common law. By 17 Edw. II, ch.. 9, it was provided that “the king shall have the custody of the lands of natural fools (idiots), taking the profits of them without waste or destruction, and shall find them in necessaries, of whose fee so ever the land be holden.” And chapter 10 provided for lunatics, or such as might have lucid intervals, by making the king a trustee of their lands and tenements, without beneficial interest, as in the case of idiots. This statute continued in force from 1324 to 1863. (Ordronaux, Jud. Aspects of Insanity, p. 4.) The procedure was, when the king was informed that one was an idiot or a lunatic, he issued his writ to the escheator or sheriff to inquire thereof. Subsequently authority was given to the chancellor to issue the writ, and the procedure was by petition suggesting the lunacy. It was the ordinary writ upon a supposed forfeiture to the crown and the proceedings were instituted in behalf the the king as the political father of his people, and was necessary before the soverign could divest title (3B1. Com. 259), and the nature of the title vested in the king, whether a beneficial interest, or merely trustee, was determined by the findings of the inquest on1 the nature and duration of the lunacy. In this country after the revolution the care and custody of persons of unsound mind, and the management of their estates, which had belonged to the king, became vested in the people in their sovereign governmental capacity, and was exercised first by chancellors in courts of equity. In this country, in some of the states there was for some time no statute outlining procedure for the hearing (New York had none for one hundred years, Hughes v. Jones, 116 N. Y. 67), the right to conduct the hearing being inferred from the right and duty of the state to the care of the lunatic and his estate. Later, statutes were enacted placing the hearing in probate or other suitable courts, and prescribing a procedure (22 Cyc. 1120). Thus it is seen that an inquest in lunacy has always been a proceeding on behalf of the sovereign, and the findings of the commission, or jury, or court, as the case may be, are, similar to judgments in criminal cases, binding upon all persons alike, except that they may be more binding upon the one who is adjudged insane. Forna v. Haley, 73 Kan. 633, 85 Pac. 751; 86 Pac. 470; Hughes v. Jones, 116 N. Y. 67; People, ex rel., v. B. & A. Hospital, 235 N. Y. 398.
As to the effect of a finding of insanity under a statute similar to our chapter 60 ’of the General Statutes of 1889, it has been generally held that the finding is prima fade evidence of insanity, or incompetency, during the period overreached by the findings, but is not conclusive, and may be rebutted by other evidence. 22 Cyc. 1133. In Hopson v. Boyd, 6 B. Mon. (Ky.) 296, 297, it was said:
“. . . the doótrine seems to have been settled in England, and to have been recognized in this as well as other states, that an inquisition finding the person named to have been of unsound mind from a preceding day is admissible as evidence of his ineompetency during the period indicated, . . . But it has been held not to be more than prima jade evidence as to the past condition of the person.”
In re Coleman, 88 N. J. Eq. 284, the finding of lunacy was made November 3, 1916, and that subject was non compos mentis for seventeen months prior thereto. The question arose as to his competency to make a will in October, 1915. It was held the finding raised a presumption against the validity of the will, one which was not conclusive and which may be rebutted.
In Yauger v. Skinner, 14 N. J. Chan. 389, where one who had executed a conveyance was afterwards found to be insane from a time anterior to the date of the conveyance, it was held to cast a sufficient cloud upon the title to enable the purchaser to maintain a bill for relief in the nature of a bill quia timet. To the same effect is Mott v. Mott, 49 N. J. Eq. 192.
In New York it was uniformly held that contracts made by a person adjudged insane, before such adjudication but within the period overreached by the finding of the jury, though not void are presumed to be so until capacity to contract is shown by satisfactory evidence; Van Deusen v. Sweet, 51 N. Y. 378; Banker v. Banker, 63 N. Y. 409; Hughes v. Jones, 116 N. Y. 67; Dominick v. Dominick, 20 Abb. New Cases (N. Y.) 286, though under a later statute limiting the inquiry to the time of the hearing, the finding has no prior effect. (In re Preston’s Will, 99 N. Y. Supp. 312.)
In Chase v. Spencer, 150 Mich. 99, and Bond v. State, 129 Tenn. 75, the findings of the inquest were held properly received in evidence. In Princhett v. Thomas Plater & Co., 232 S. W. 961 (Tenn.), a judgment declaring a person insane is conclusive evidence of insanity at the date of the judgment and prima facie evidence of such fact from the time the jury found him to be insane until the date of the judgment.
The term insane, as used in the statute under which the inquest in this case was had, signifies bereft of reason, a lunatic, and not a mere mental strain or brain sickness. (In re Wright, 74 Kan. 406, 409, 413, 86 Pac. 460, 89 Pac. 678.)
From the above authorities it seems clear that the record of the inquest proceedings of plaintiff’s father, including the “Statement in Lunacy,” should have been received in evidence. The record makes a prima facie showing that plaintiff’s father was insane at the time of her birth (though this might be overcome by other evidence), and, for that reason, the parties not competent to marry under section 6155 of the General Statutes of 1915. Appellee argues that this statute is void as making an unreasonable restriction on the inherent right of marriage, but we are unable to concur in that view. It is within the province of the state to prescribe reasonable regulations relating to marriage (State v. Walker, 36 Kan. 297, 304, 13 Pac. 279), and to prohibit the marriage of first cousins (Reed v. Reed, 49 Oh. St. 654), a nephew and aunt (Campbell v. Crampton, 2 Fed. 417), and those not free from well-known injurious diseases (Peterson v. Widule, 157 Wis. 641). (See, also, Kirby v. Kirby, 206 Pac. 405 [Ariz.], and Ross v. Bryant, 217 Pac. 364 [Okla.]). And .an agreement to marry between persons who, under the statute, are prohibited from marrying may be breached without incurring liability for damages. (Reed v. Reed and Campbell v. Crampton, supra.) In breach of promise cases damages will not be allowed if the ill health of plaintiff (Grover v. Zook, 44 Wash. 489; Travis v. Schnebly, 68 Wash. 1; Fellers v. Howe, 106 Neb. 495; Beans v. Denny, 141 Iowa, 52; Kantzler v. Grant, 2 Ill. App. 236; Goddard v. Wescott, 86 Mich. 180; Gring v. Lerch, 112 Pa. St. 244; Walker v. Johnson, 6 Ind. App. 600), or of defendant (Allen v. Baker, 86 N. C. 91; Gardner v. Arnett, 21 Ky. L. 1; In re Estate of Oldfield, 175 Iowa, 118; Shackelford v. Hamilton, 93 Ky. 80; Sanders v. Coleman, 97 Va. 690; Trammell v. Vaughan, 158 Mo. 214), is such that the injurious effects of the marriage of the parties upon themselves, their children, and upon society, would be obviously disastrous, even though the statute does not specifically prohibit the marriage. These cases, however, refer to the ill health of one, or both, of the contracting parties, and not to the parent of one of the parties, as attempted here to be applied. And most of the cases are based upon the fact that the ill health was unknown, or thought to be cured, at the time of the promise. In Lemke v. Franzenburg, 159 Iowa, 466, it is specifically held that the ill health of plaintiff known to defendant at the time of the promise, is no defense. But in Grover v. Zook, 44 Wash. 489, the ill health of plaintiff, from pulmonary tuberculosis, was such that, though defendant knew of the disease at the time of promise, he was excused from performance. Through all these' cases runs the doctrine, always recognized and frequently applied, that the state, or society at large, is the third party to every marriage contract. That marriage between parties within certain degrees of relationship, or under certain conditions of health would be so opposed to the legitimate objects and purposes of matrimony, and the influence upon society so detrimental, that the state may prohibit, or, if damages be sought for the breach of a promise to marry, relief will be denied.
As applied to this case, the state has said that the plaintiff cannot marry before she reaches the age of forty-five years, if her father became insane before her birth. If the evidence should establish that fact the defendant should not be held in damages. From the remarks of the trial court, in passing upon the motion for a new trial, it is evident he took the view that the defendant should be required to respond in damages, though it should be established that the marriage would be in opposition to our statute. Two cases are found tending to support this view, Hall v. Wright, E. B. & E. 765, an early English case, and Smith v. Compton, 67 N. J. L. 548, but they are criticized in many of the authorities heretofore cited and we do not concur in their reasoning.
In this case there is no .claim that ill health of the plaintiff, other than the taint of insanity in her family, dr of the defendant, would justify defendant in breaching the promise of marriage which he admits he made. Unless he can show, and the burden in this respect is upon him, that plaintiff’s father was insane at the time of her birth, he cannot be relieved of liability. That is the yardstick the statute has made and both parties must be bound by it.
Even though defendant is not able to relieve himself from liability by showing that plaintiff’s father was insane at the time of her birth, the evidence pertaining to the insanity of plaintiff’s father is competent in mitigation of damages. In a similar case, Lohner v. Coldwell, 15 Tex. Civ. App. 444, defendant was not permitted to offer, in mitigation of damages, evidence of a taint of insanity in plaintiff, but that was because it had not been pleaded as a defense; here the defendant pleaded it. It is the general rule that the circumstances of the parties, including traits and history of plaintiff’s family, are admissible in evidence, in mitigation of damages. (9 C. J. 359.)
In addition to his offer of evidence, appellant preserved the questions here discussed, by special questions and instructions requested, and by objection to instructions given, but we do not deem it necessary to discuss them separately. From what has been said our holdings thereon are obvious.
The* cause will be reversed for a new trial upon the second defense, in accordance with this opinion. | [
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The opinion of the court was delivered by
Mason, J.:
The plaintiff obtained judgment on publication service against the defendants, foreclosing two real-estate mortgages. After the land had been sold on an order of sale and a sheriff’s deed had been executed to the plaintiff, who conveyed the land to a third person, the judgment was opened on a showing that the defendants had had no actual notice of the suit, accompanied by an answer alleging that the amount claimed was not due and that the period of redemption should not have been limited to six months, and offering to pay the amount of the mortgage debt. The trial court found against the defendants on the issues of fact and rendered a new judgment substantially the same as the first, ordering the property resold. On appeal by the plaintiff it was held that the original judgment should have been reinstated, with all its consequences,-thereby restoring to full effect the sale and deed. (Cox v. Anderson, 115 Kan. 709, 224 Pac. 908.)
In motions for a rehearing the defendants urge that after the first judgment had been opened they had a right to end the litigation by paying the amount of the mortgage debt, with interest and costs, and that they had offered to do so. This matter was not specifically mentioned in the original opinion because it was thought sufficient to say that in such a situation the same rule applies as where a judgment is set aside because of an irregularity in obtaining it; namely, that it “is only conditionally vacated, and in case the defense pleaded is not proved it is restored to its original status, with all its rights, priorities and liens.” (p. 711.) A judgment cannot be opened under the statute here involved unless the answer states a defense to a whole or a part of it. (Williams v. Kiowa County, 74 Kan. 693, 88 Pac. 70.) The opening of the judgment being only for the purpose of determining whether the defense interposed is well founded, the defendant acquires by it no right to end the matter by paying the amount that would be due if no judgment had been rendered, unless the issue of fact is decided in his favor. The defendants cite two decisions as holding the contrary— Hauswirth v. Sullivan, 6 Mont. 203, and Martens v. Green, 113 Kan. 142, 213 Pac. 642. The Montana case dealt with the setting aside of a judgment which, was void because based on a service of summons made on Sunday. The Kansas case, while involving the statute here under consideration, dealt with a judgment in partition attacked and sought to be set aside on various grounds, including a false affidavit for service, before the expiration of the term of court at which it had been rendered.
The motions for a rehearing are overruled. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on an account. The petition showed that all of the items of the account were barred by the statute of limitations. There was no demurrer to the petition. The answer was a general denial. The plaintiff introduced its evidence, to which the defendant demurred on the ground that the evidence did not prove a cause of action and on the ground that the action was barred by the statute of limitations. That demurrer was sustained. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The sole question is: Can the statute of limitations be presented for the first time by a demurrer to evidence where the petition shows that the cause of action is barred'and the answer thereto consists of a general denial?
In Parker v. Berry, 12 Kan. 351, this court said:
“Where a petition does not show upon its face that the plaintiff’s claim is barred by the statute of limitations, the only way in which the question of the statutory bar can be raised is by special plea. A general denial will not raise it.”
In Croan v. Baden, 73 Kan. 364, 85 Pac. 532, the following language was used:
“The statute of limitations, to be available as a defense, must be affirmatively pleaded or otherwise asserted, and a failure to do so constitutes a waiver of such defense.” (Syl. U 2.)
In Brumbaugh v. Wilson, 82 Kan. 53, 57, 107 Pac. 792, the court discussed this proposition as follows:
“The expiration of the time' for bringing an action is a matter of defense. Only explicit allegations which show, not inferentially but directly, that the statutory time has run render a petition demurrable. Otherwise the question must "be raised by a special plea.”
Cases were reviewed in Beachy v. Jones, 108 Kan. 236, 195 Pac. 184, where it was held thai&wkey;
“Where an action is brought on a promissory note against the maker and payee as codefendants, and the maker files an answer and cross petition against his codefendant alleging the fraud of the latter in procuring the note, and the payee’s answer to such cross petition is merely a general denial, such answer is insufficient to raise a question of the-statute of limitations, as such a defense can only be raised by a specific plea.” (Syl. ¶ 5.)
These cases do not dispose of the question. There are other decisions by this court that must be examined.
In Zane v. Zane, 5 Kan. 134, the court announced the following rule:
“A petition that shows upon its face that the cause of action is barred by the statute of limitations does not state facts sufficient to constitute a cause of action.”
Section 93 of the code of civil procedure in part reads—
“The defendant may demur to the petition only when it appears on its face . . . that the petition does not state facts sufficient to constitute a cause of action.”
Section 597 of the second edition of Remedies and Remedial Rights by Pomeroy, in part reads—
“If the defect is of such a nature that a demurrer is proper, and the pleading would be held insufficient upon a demurrer, it is equally certain that the adverse party does not waive the objection by going to trial without demurring.”
In Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545, the court declared that—
“Where a plaintiff, for the purpose of removing the bar of the statute of limitations which had apparently run upon his cause of action, pleads that a payment had been made thereon, a general denial puts the burden upon him. The defendant need not specially plead the bar of the statute. He will prevail if the plaintiff fail to establish such payment.” (Syl. ¶ 2.)
In Norton v. Montgomery County, 109 Kan. 559, 199 Pac. 388, this court said:
“A demurrer to a petition which shows on its face that the cause of action is barred by a statute of limitations is property sustained.” (Syl. U 2.)
Arnold & Co. v. Barner, 100 Kan. 36, 163 Pac. 805, declared the rule to be as follows:
“When a cause of action is in fact barred by the statute of limitations, but the allegations of the petition are so broad that they cannot be met by demurrer, the defendant may enter a general denial, and may then await a failure of proof which will strip the cause of action down to the bare facts where the pertinency of the statute of limitations will become apparent, and may then interpose a demurrer to the evidence.” (Syl. ¶ 4.)
In the instant case, the defendant failed to present the bar of the statute by either pleading it or demurring to the petition, but he did raise the question specifically by his demurrer to the evidence. The action was clearly barred at the time it was commenced. In Freeman v. Hill, 45 Kan. 435, 25 Pac. 870, this court said:
“In this state statutes of limitation are regarded not as statutes of presump tion, but as statutes of repose, and a trial court may, in its sound judicial discretion, permit a defendant to file an answer out of time, pleading the statute of limitations.” (Syl. If 2.)
If the demurrer to the evidence be treated as an answer filed out of time by permission of the court, there was no error in the judgment that was rendered. The defendant by his demurrer indicated that he desired to present the bar of the statute. The court permitted him to do so. The question was raised before the trial was concluded, and unless this court can say that the trial court abused its discretion in considering the statute'of limitations on a demurrer to the evidence, the judgment must be affirmed. There was no abuse of discretion in permitting the defendant to raise that question for the first time at the close of the evidence of the plaintiff. Section 581 of the code of civil procedure justifies this court in the conclusion reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages. There was a trial, to a jury, special questions were answered and a general verdict was returned for the plaintiff. Plaintiff filed motions to set aside the special findings and for a new trial, which motions were overruled. Defendant moved for judgment upon the special findings, notwithstanding the general verdict, which motion was sustained, and plaintiff has appealed.
The Sonken Galamba Iron & Metal Company, dealers in junk, had extensive yards and warehouses in the “bottoms” in Kansas City, Kan. As a part of its plant it had a large warehouse where rags were handled in large quantities, some baled and some loose. On Saturday evening about six o’clock a fire originated, in the plant, which rapidly became a conflagration and burned the property of the company and several small residences near by. Plaintiff was the owner of one of the residences burned. She sued the company for her loss, and alleges negligence on the part of the officers, agents and employees of the company in the setting out of the fire and in not taking proper means to control the fire after it was discovered. Instruction No. 3 stated the issue submitted to the jury as follows:
“There is no evidence before you, gentlemen, that the fire was placed upon the premises by the defendant as charged in the petition, consequently you cannot find against the defendant on any ground connected with the setting out of the fire. The only matter which is to be submitted to you for consideration is: Whether or not the defendant, after discovering the existence of the fire exercised due care in calling the fire department and calling for assistance in extinguishing the fire.”
The jury answered special questions as follows:
“1. If jrou find that an" officer or agent of defendant discovered said fire, state what time he discovered it? Answer. No evidence.
“2. If you find that an officer or agent of the defendant discovered the fire, state the name of such officer or agent. Answer. No- evidence.
“3. If you find that an officer or agent of defendant discovered the fire, state where he was, and what he was doing when he discovered it. Answer. No evidence.
“4. Who turned in the alarm that brought the fire department? Answer. No evidence to show,
'“5. At what time was said alarm turned in? Answer. 6:25 p. m., March 19, 1921.”
Appellant does not complain of the instructions but contends that there was evidence to the effect that the fire broke out between 5:30 and 6 o’clock; that Morris Galamba, superintendent of the plant, and John Gleaton, day watchman, did not leave the plant until a few minutes 'after six and that their names should have been inserted in the answers. All the evidence in the case was offered by the plaintiff. There was testimony from several persons in the neighborhood that the fire broke out before six o’clock, but their evidence does not show any very accurate way by which they fixed the time. It was Saturday afternoon and there were no workmen at the plant. John Gleaton was the day watchman. Morris Galamba was superintendent of the plant. The night watchman came on duty at six o’clock and the day watchman went with him through the plant to see that everything was all right at the time he went off duty and the night watchman went on. Gleaton did that on the evening in question and checked out by the time clock, and that showed that he had checked out at 6:10 and he and Morris Galamba left the plant within two or three minutes thereafter. The night watchman was not called as a witness, but Galamba and Gleaton both testified that there was no fire at the plant at the time they -left it. Gleaton went two or three blocks with Galamba in -an auomobile to the car line to take a street car for home. He let the first one pass because it was crowded, but got on the next one. Soon after getting on the street car he noticed a smoke in the direction of the plant, and after riding a few blocks more got off the street car and went back to the plant. When he got to the plant he found the night watchman in the office trying to use the telephone, and looked out of the window and saw the fire department at the gates trying to get in. The records at the fire department headquarters show that the alarm was turned in to the department at 6:25 and the firemen testified that they were at the plant in a minute and a half or two minutes after the alarm was turned in. From this evidence, which showed positive records as to time, it could not have been more than fifteen minutes from the time Galamba and Gleaton left the plant, at which time there was no fire, until Gleaton returned, found the night watchman trying to use the telephone and the fire department on the ground. The plant was then in flames. No doubt the jury regarded this accurate evidence as to time controlling rather than the estimate of time given by other witnesses, and we cannot say they committed error in so doing. It is clear, of course, if the answers to the first four questions stand, there can be no liability on the company. The findings have substantial evidence to support them, they were approved by the trial court, and this court cannot set them aside. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one to .determine title to the office of president of the AEtna Building and Loan Association. The cause is submitted on defendant’s motion for judgment on the pleadings.
At a meeting of the board of directors, held in 1922, defendant was elected president for the term of one year and until his successor should be elected and qualified. Before the annual stockholders’ meeting, held on January 23, 1923, proxy sheets were placed in the hands of agents in cities of Kansas and Oklahoma, to be signed by shareholders. Defendant’s name appeared as first choice of signers, to act as their proxy. It is alleged, and denied, that this form of proxy sheet was used against instruction and over protest of the board of directors. Whatever the fact may be, when the meeting assembled, defendant held proxies which enabled him to dominate the meeting by overwhelming votes. Improving this opportunity, defendant amended four sections of the by-laws, in important particulars. The concurrence of four of the five directors was made necessary to the election of vice president and the appointment of secretary, assistant secretary, attorney, and auditing committee; stockholders were given authority to fix salaries; any one who is a bank officer was disqualified from becoming president of the association; and the following was adopted:
“The stockholders of this association shall, at the annual meeting, including this annual meeting, elect a president and treasurer, who shall be a member of the board of directors. Such president and treasurer to serve as president and treasurer of this association for the period of one year and until his successor is elected and qualified.”
When the by-laws had been amended to defendant’s satisfaction, he was elected director, and then was elected president by 13,438% votes. His proxies numbered 13,350.7 votes. The amendments to the by-laws were presented by the secretary of the association to the bank commissioner for approval on January 24, the day following defendant’s election, and on January 26, the bank commissioner disapproved them.
Defendant’s title rests upon the foregoing facts.
The first section of the statute relating to building and loan associations provides for the incorporation of such associations for stated purposes, and concludes as follows:
“Shall become a corporation . .. . subject to all the duties, .limitations and restrictions conferred by general laws upon corporations, except as hereinafter otherwise provided.” (Gen. Stat. 1915, § 2209.)
The second section relates to what the articles of agreement shall set forth, and requires that the articles shall be signed, acknowledged, and recorded. (Gen; Stat. 1915, § 2210.) ^
The third and fourth sections read as follows:
“The shareholders of such corporation must make and adopt all necessary by-laws, rules and regulations for the local government of the affairs and business of the corporation: Provided, That the same shall not be inconsistent with the constitution or laws of the state. A copy of such by-laws, rules and regulations must be filed in the office of the bank commissioner before such corporation can commence business, and such by-laws shall be approved in writing by the bank commissioner, which approval may be given or withheld in his discretion. All amendments to by-laws must be submitted to the bank commissioner for approval, and such amendments, when approved by him, shall become operative. Unless corporations organized hereunder shall engage in business as provided in this act within one year after date of issuing the certificate of incorporation, such certificate shall be deemed revoked.
“The number, title and functions of the officers of any corporation created by virtue of this or any previous act, their terms of office, the time of their election, as well as the qualification of electors, and the time of each periodical meeting of the officers and shareholders of such corporation, shall be provided for in the by-laws.” (Gen. Stat. 1915, §§ 2211, 2212.)
A pertinent restriction of the general corporation 'law, with which building and loan association by-laws must be consistent, reads as follows:
“The directors or trustees shall choose one of their number president, . . (Gen. Stat. 1915, § 2123.)
The amendments to the by-laws did not have the approval of the bank commissioner, and consequently were not operative when defendant’s election occurred, and besides that, the amendment relating to election of president was void.
Defendant says sections 2211 and 2212 relate to different classes of by-laws, one for affairs and business, and the other for officers and elections; one class the bank commissioner may approve; the other is not subject to his supervision.
Section 2211 includes not only business, but affairs of the corporation, and mentions affairs first. Number, title and functions of officers, terms of office, time of election, qualifications of electors, and meetings of officers and shareholders, are all strictly affairs of local corporate government, and the distinction between the two sections is this: Section 2211 makes the broad requirement of bylaws ; section 2212 specifies details relating to corporate government. Succeeding sections specify details relating to corporate business. A corporation may not begin business until its by-laws have been filed with the bank commissioner for his approval or rejection, and no subsequent amendment becomes operative until it has been approved. #
The bank commissioner’s disapproval of the by-law is harshly assailed. The subject is not material here; but since it relates to con.■duct of a public official, acting within the scope of authority ex pressly conferred by law, and evidently sincerely endeavoring to discharge his duty, it will be noticed briefly. The letter of disapproval follows:
“January 26, 1923.
"Mr. F. J. Funk, Secretary /Etna Building and Loan Association,
Topeka, Kansas.
“Dear Sir: I have examined the amendments to sections 1, 2, 5 and 9 of article V of the constitution and by-laws of the ¿Etna Building and Loan Association purporting to have been adopted at the regular annual meeting of said association held on the 23rd day of January, 1923, and by you presented to me on January 24, 1923, for my approval.
“I cannot give my approval to such amendments, and have endorsed my disapproval on same and respectively return such amendments herewith.
“I feel compelled to withhold my approval for the following reasons, viz.: “The ¿Etna Building and Loan Association is organized under the general incorporation laws of the state of Kansas. Section 2124, General Statutes of Kansas 1915, is in the following words:
“ ‘The directors or trustees may adopt by-laws for the government of the corporation; but such by-laws may be altered, changed or amended by a vote of the stockholders, at an election to be ordered for that purpose by the directors or trustees, on the written application of a majority of the stockholders or members.’
“It does not appear that these amendments were adopted by a meeting of stockholders called as provided in said section. Section 2123, General Stat-. utes of Kansas 1915, is in the following words:
“ ‘The directors or trustees shall choose one of their number president, and shall appoint a secretary and treasurer of the corporation. The directors or trustees, before entering upon their duties, shall each take an oath or affirmation faithfully to discharge the duties of his office.’ •
“This section provides that the directors shall choose one of their number as president. By-laws must not conflict with the statutes of the state. See section 2211, General Statutes of Kansas 1915.
“As a further reason for withholding my approval I must say that it appears to me that the purported adoption of these amendments is, without doubt, without the knowledge of most of the stockholders of the association who were represented by proxy, and is an attempt on the part of some one to perpetuate in the office of president the person who has heretofore been the ■president of the association. As the statute provides that the directors shall choose the president, I doubt very much whether any such amendment providing for the election of the president by the stockholders is legal. Further, any such radical change in the by-laws should not be made until after all stockholders have been given full and fair notice of the contemplated changes.
“Respectfully yours,
(Signed) F. H. Foster,
Bank Commissioner.’’
The letter considers the amendments in two aspects, legality, and fairness to stockholders. Both subjects .were pertinent to an exercise of official discretion. Aside from the reference to legality, the last paragraph states sound reason for disapproval. It was entirely proper the stockholders should know about defendant’s extraordinary designs, and should approve them, before being concluded.
If the bank commissioner had been mistaken in his interpretation of the law, his disapproval would not be less effective; but he was right about the invalidity of the amendment providing for election of president by stockholders. That subject is expressly covered by section 2123, with which the amendment was inconsistent.
Defendant says section 2212 gives the corporation power to prescribe the qualification of electors. True enough, when the legislature has not already dealt with the subject. By statute, directors only are qualified to elect the president.
The third paragraph of the petition contains the following allegations respecting plaintiff’s title to the office:
“On the 23d day of January, 1923, at the regular annual meeting of the stockholders of said association, a new director was elected -for said association, and immediately after the close of said stockholders’ meeting the board of directors met in the offices of said association, all of the directors, including the newly elected director [the defendant], being present, and the day having been spent with the transaction of business by the stockholders’ meeting, and the hour of five o’clock having arrived, the said board of directors adjourned their meeting until the following day, January 24, at 2 o’clock p. m., at which time the said board of directors met and proceeded as provided in said section-1, article 5, of the constitution and by-laws of said association to elect the officers.of said association for the ensuing year. There was present at said directors’ meeting, and participating therein, all of said board of directors except one, and thereupon the said board of directors proceeded to elect a president of said association for the ensuing year, and for the term of one year, and until his successor should be elected and qualified; and by a majority vote of said board of directors the plaintiff, Charles W. Thompson, was duly and legally elected as president of said] association for the ensuing year, and until his successor should be duly elected and qualified. Thereupon the said plaintiff duly qualified as president of said association as required by law,
The answer to this paragraph reads as follows:
“Answering the allegations of paragraph 3 of the petition, the defendant admits that on the 23d day of January, 1923, at the regular annual meeting of the stockholders of said association a new director was electéd for said association; and denies that immediately after the close of said stockholders’ meeting the board of directors met, as alleged in said paragraph of the petition, and alleges that said board did not meet on that day and adjourn until the following day, January 24, and denies that the board of directors of said association held any valid or legal meeting on January 24, 1923, and did not at that time legally elect as president of said association the plaintiff herein.”
Having chosen to raise an issue of fact relating to validity of plaintiff’s election, defendant may not have judgment for the office on the pleadings. Defendant’s real contention, however, is indicated by the following statements and admissions contained in his brief:
"Plaintiff in this case claims the office of president of the ¿Etna Building and Loan Association by virtue of a pretended election at a directors’ meeting on January 24, 1923. The petition alleges that this meeting commenced January 23, 1923, and adjourned until January 24. This is denied by the defendant in his answer. Regardless of these conflicting allegations, it is not claimed that this was the regular date for the directors’ meeting, nor that it was a special meeting called by the president or any two directors as provided in the by-laws. Only four directors were present. No notice of any kind is shown to have preceded thé meeting.
“These facts alone demonstrate that the meeting was not a legal one, and this is conclusively shown by the minutes of the meeting, which show that tfie meeting was. an adjourned meeting of the old board of directors — an adjournment of a meeting begun before the annual meeting of the stockholders. Nothing is shown or alleged as to a reorganization of the board after the stockholders’ meeting, although a new director was elected.”
Minutes of the directors’ meeting held on January 23, supplied by defendant’s brief, read as follows:
“Topeka, Kansas, January 23, 1923.
“The hour of 5 o’clock p. m. as fixed by the order of adjournment taken at the meeting of this board of the last previous day having arrived, the board of directors convened in the office of the association, and the meeting having been called to order by J. W. Berryman, with all the members of the board being present, director Berryman moved that the meeting adjourn till the following day, viz., Wednesday, January 24, 1923, at 2 o’clock p.m., which motion was seconded and unanimously carried, and the meeting was declared adjourned accordingly.”
The by-laws of the association contain the following provisions:
“The board of directors shall hold stated meetings on the second Wednesday of each month, and special meetings may be held at any time upon the call of the president or any two directors. ... A majority of the board of directors shall constitute a quorum.”
It is not true that the petition alleges the meeting of January 24 commenced on January 23. The petition alleges that on January 23, after the stockholders’ meeting, the board of directors met. The minutes say the meeting was pursuant to previous adjournment.
It is not necessary for plaintiff to claim that January 24 was a regular date for a directors’ meeting, or that the meeting on that day was a special meeting called pursuant to by-law, or that notice of the meeting was given. All the directors were present at the meeting of January 23, and unanimously joined in adjourning until the next day, at 2 o’clock. At the meeting on the next day, a quorum, including the .defendant, was present. And referring to the subject of claims, defendant nowhere claims he disputed, at the time, regularity of either meeting, each one of which he attended, and in each one of which he participated. All he did, according to his brief, was to protest the action of the board in electing the plaintiff.
The new director elected at the stockholders’ meeting was the defendant, elected to succeed himself. He seems to regard the event as fraught with peculiar consequences to the board. He refers to the “old board of directors,” using italics, as if a new board were created by his election. ■ What happened was, defendant continued a member of a continuing body, the existence of which was not interrupted by his going out of and his coming back into office. That body could meet, as it did, pursuant to previous adjournment. Having so met, it could adjourn, as it did, to a future time, and then meet; and it could do all this without first reorganizing.
The motion for judgment on the pleadings in favor of defendant is denied.
Defendant advises the court he will rest upon the action of the court taken on his motion for judgment on the pleadings. This waives sending the cause to a commissioner to take evidence on the part of plaintiff to sustain the issues tendered by the petition, and the court finds generally for plaintiff..
Judgment is entered in favor of plaintiff for title, possession and enjoyment of the office in controversy, dating from January 24, 1923, and for costs, and the temporary order of ouster of the defendant, heretofore entered, is made permanent. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Mrs. Anna Hinderliter brought this action against the sons and daughter of her deceased husband to cancel and set aside a contract and deed executed by her, but only the daughter, Mrs. Nora E. Bell, and her husband, were served with process. From a decision of the court holding that her petition failed to state a cause of action she appeals.
The averments of her petition, so far as material to the questions raised on this appeal, are in substance that plaintiff was the widow of Daniel W. Hinderliter, who died intestate, leaving a farm in Kansas of the value of $25,000, encumbered by a mortgage of $1,300, and also some personal property. By a former marriage her husband had a family of five children, and when she married him, the ages of the children ranged from ten to twenty-five years, and she alleged that she had cared for them from the date of the marriage until his death, a period of about twelve years. She alleged that her husband died intestate in Wyoming, on January 20, 1917, and that after his death the body was taken to Franklin county, Kansas, where he had formerly lived. She averred that after the burial, which was on January 25, 1917, the .children by misrepresentation, undue influence and fraud, induced her to execute a contract and deed transferring the land in Kansas to them. The agreement recites that plaintiff had sold and conveyed by her .deed of conveyance to the children all of her interest, right and title to the real estate in Kansas described, and all her interest in personal and other property that the deceased father had. In consideration of the conveyance they agreed to pay to plaintiff, the sum of $20 per month, payable monthly so long as she might live, and in addition to such payment they agreed to furnish her in time of sickness, proper, necessary and suitable medical attendance, a competent nurse, if necessary, and at last to see that she had a proper, suitable and respectable burial. It recited that should she remarry the contract would end and the grantees would be under no further obligation to her. At the time of the execution of the contract, which was January 29, 1917, she executed a deed conveying to the children an undivided one-half of the land described in the contract. The contract was signed and acknowledged by the plaintiff before a notary public, and both contract and deed were recorded on May 3, 1917. She alleges that at the time of her husband’s death she was without funds, advanced in years, sick and inexperienced in business and ignorant of the value of her husband’s estate, and also of the character of the contract and deed executed by her. She alleges that after the funeral the children began a systematic effort by undue influence, misrepresentation, fraud and deceit to overreach and defraud the plaintiff, telling her that if she would transfer her interest in the property to them, they would provide for her as already stated. And in addition to the provisions of the contract she charged they told her that they would build a two-room addition on the house for her and indicated where this should be built, and further that if she wanted to live in town or anywhere else, they would at their expense provide quarters for her there, and further that the contract and deed would be so worded that her interest in the real estate would be security for the performance of the agreements they had made. It was alleged top, they told her that by reason of the mortgage against the property she was in danger of losing her interest in the property by a foreclosure proceeding, and also that if she should receive the money for her interest she would run the risk of losing it through bad investments. She stated that she requested them to delay the settlement for a time, but they were impatient and insisted that they 'should go ahead with the transaction and close up the matters so that they might return to Wyoming where they lived. She states that being without money and sick and believing in the honesty of the defendants they would fulfill their promises and that there was a danger of losing her property, and being without proper advice as to her rights, she accepted their offers believing their representations that the contract mentioned contained all the agreements made between them, and did not know to the contrary until her attorney, in September, 1921, informed her of the effect of the papers which she signed. She further states that a copy of the agreement was sent to her after the execution of the deed and she was not aware of the fact that she had signed a deed or añy paper other than the agreement until she was advised by her attorney just before the action was brought. She recited that after the signing of the papers she made her home with the Bells on the land in question and lived there nearly four years, until September, 1921, when she first learned of the nature of the agreement and deed that she had executed. She alleges that she received the $20 a month from February 1, 1917, to October, 1921, but did not like the provision that was made for her in the Bell home, and although she asked them for better quarters as they had promised, none were furnished, and that in November, 1920, at their request, she left their home.
She further alleged that the agreement made did not contain all of the promises they had made to her in that it did not provide the land would stand as security for the performance of the conditions, and further that she did not understand the difference between a deed and any other legal document until she was informed by her attorney shortly before the suit was brought. It is alleged that the contract did not contain the agreement to build an addition to the home for her, all of which she believed to have been embodied in the agreement which she signed. It is further stated that her husband had money and other property which was taken over by the defendants without an inventory and that no accounting had been made of it either before or since the execution of the agreement and deed. There is an allegation that shortly after she signed these instruments, Nora E. Bell, the daughter, and her husband purchased the interests of the other defendants and paid therefor the sum of $9,880, and in the transaction they assumed the payment of the $1,300 mortgage existing on the land. She recites that the lands were valuable for the production of oil and wheat, and that the Bells have received annually from the lands a net profit of about $3,000. She stated that all the promises were false and fraudulently made without the intention to fulfill them, but rather for the purpose of lulling her into a feeling of security and obtaining the property without giving her just compensation therefor. She alleges that she discovered the fraud about the 21st day of September, 1921, whereupon she immediately elected to rescind the contract and notified the defendants of her decision, offering to pay back the amount she had received, namely, about $1,000, and asking that the contract and deed be canceled and that an accounting be made by the defendants of all moneys and property which they had derived from the land and converted to their own use.
The pleading states facts which if established by evidence would apparently entitle plaintiff to relief if the remedy is not barred by the statute of limitations. Her cause of action is based on the ground of the fraud of the defendants and is one which must be brought within two years after it accrues. It is not deemed to have accrued until the discovery of the fraud, and the question is whether under the allegations of the pleading it was discovered more than two years before the action was brought. To avoid the bar of the statute plaintiff avers that she did not learn of the fraud until more than four and one-half years after the execution of the conveyance. While she says she did not know of the execution of the deed or that it operated as a conveyance of her interest in the land, the petition shows that it was duly recorded on May 3, 1917. Although the recording of the deed may not give constructive notice of every fraud practised in procuring its execution, it does impart notice of its existence and contents. (Black v. Black, 64 Kan. 689, 68 Pac. 662; Lewis v. Duncan, 66 Kan. 306, 71 Pac. 577; Rogers v. Richards, 67 Kan. 706, 74 Pac. 255; Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791; Walline v. Olson, 84 Kan. 37, 113 Pac. 426; Davis v. Heynes, 105 Kan. 75, 181 Pac. 566; Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332.) It has been held that a deed regular on its face did not impart notice of certain matters outside of the deed, such as notice to creditors that the deed was made for the purpose of hindering, delaying or defrauding them or other creditors in the collection of their claims. (Underwood v. Fosha, 96 Kan. 549, 152 Pac. 638.) However, the plaintiff had more than the knowledge imparted by the public records. In executing and acknowledging the execution of the instrument she had. an opportunity to learn the character of the instrument and that it operated as a transfer of her interest in the land. In the petition it is stated that a copy of the contract was sent to her after the execution thereof. This she had in her possession for more than four years, and in it was the plain statement that she had bn that day conveyed all her interest, right and title to the land, describing it. It also contained a full statement of the consideration for the conveyance, reciting the monthly allowances the grantees were to pay to her, the furnishing to her in sickness of medical attendance with the care of a competent nurse. This agreement not only gave her notice of the execution of the deed and the transfer, but also of the conditions that the grantees were to perform in consideration of the transfer. It furnished her knowledge of the fact, too, that the conditions to be written into the contract, namely, that the land should stand as security for performance and that an addition to the house for her use was to be erected, and also that provision was to be made for her if she chose to move to town, were not included in it.
Assuming that she was defrauded in the transaction she had the means of information and must be held to have had knowledge of the conveyance she had made and of the conditions embraced or omitted from the contract. This knowledge she gained or could have gained from the .contract, and the slightest diligence would have revealed the things and wrongs of which she complains. One who has an instrument in her possession stating the terms and conditions of the transfer cannot shut her eyes and say that she was unaware of provisions distinctly written therein. Concealment of the transfer after it was made is not charged nor was there any attempt to throw her off her guard or divert her attention from the contents of the papers she signed nor is it averred that there was any fraud by the defendants to prevent her from ascertaining or availing herself of the contents of the papers or the record of the transfer. It must be held that she had notice of the fraud and that the cause of action accrued more than two years before her action was brought. Although claimed there was no fiduciary or confidential relation between the parties that affects the starting of the statute of limitations. She was the'stepmother of the defendants. When she married their father, the eldest stepchild was twenty-five years old, and the youngest ten. All of them had reached majority and had gone from the father’s home before the transaction in question. There was nothing approaching agency for the plaintiff nor the intrusting of business to them and no circumstances such as would create >a trust relationship. From the time she learned the contents and character of- the contract she had notice and knowledge of the attitude of the defendants and of the wrongs alleged sufficient to start the statute of limitations.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for alienation of affections. The court sustained a demurrer to plaintiff’s evidence and rendered judgment for defendant. The plaintiff has appealed and contends that the evidence made a case sufficient to go to the jury. A demurrer to the evidence concedes every inference favorable to the plaintiff that might be drawn from the evidence. In ruling upon such a demurrer the court takes into consideration only those facts and inferences of fact favorable to plaintiff and cannot consider contradictions in the evidence, nor matters brought out in cross-examination which would tend to weaken the plaintiff’s evidence or establish a defense. (Can Co. v. Ross, 72 Kan. 669, 83 Pac. 616; Travis v. Simpson, 106 Kan. 323, 187 Pac. 684; Rosenfeld Co. v. Gleed, 110 Kan. 75, 202 Pac. 611.)
It would serve no good purpose to set out a synopsis of the evidence. We have examined it carefully and considered all counsel have said concerning it. Tested by the authorities above cited it was sufficient to make a prima facie case in favor of the plaintiff. The demurrer should have been overruled.
In his answer defendant set up a decree of divorce which plaintiff’s wife had procured from plaintiff. This shows that the divorce had been granted because of plaintiff’s extreme cruelty to his wife. Appellee contends that this decree is a judicial determination that plaintiff had alienated his wife’s affections by his own extreme cruelty, from which he reasons that her affections could not have been alienated by appellee. Gleason v. Knapp, 56 Mich. 291, is cited as supporting this view. Later Michigan cases, if they do not entirely destroy the argument in Gleason v. Knapp, greatly weaken it and leave it as controlling only as to the facts in that case, which are not the same as here. In Knickerbocker v. Worthing, 138 Mich. 224, it was said that a defendant in a divorce suit, who makes a bona fide defense, but fails to charge adultery, is not thereby debarred from maintaining an action against a third person for alienating his wife’s affections, based on acts prior to the divorce suit. In Philpott i). Kirkpatrick, 171 Mich. 495, it was said:
“Where plaintiff, in an action for alienating the affections of his wife, had, before instituting suit, procured a divorce from his wife upon the ground of extreme cruelty, in which proceedings his testimony tended to show that other persons had interfered in his domestic affairs, and his wife had ceased to feel any affection towards himself, although adultery was not charged, he was not estopped from maintaining his action on the theory that his present attitude and claims were inconsistent with the position assumed by him in the divorce case; nor was the decree res judicata of his right against defendant.”
The authorities generally hold that a spouse, against whom a divorce has been granted, may maintain an action for alienation of affections occurring prior to the divorce, the decree of divorce not being res judicata with respect to plaintiff’s cause of action and not operating as an estoppel by judgment.
In Pollard v. Ward, 289 Mo. 275, it was held'that a decree of divorce does not bar an action for previous alienation of affections or criminal conversation or seduction, and it is immaterial that the fact might have been but was not set up as a defense to the defendant’s action. In the notes on this question where the case is reported in 20 A. L. R. 936, 943, many authorities are collected and they are almost unanimous in support of the syllabus last quoted.
In Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492, it was claimed that the plaintiff’s own acts caused or contributed to the alienation of the affections. The court held:
“In such an action, if the acts done and influence used by the defendant were the controlling cause of the separation the plaintiff may recover from the defendant, although other causes may have contributed in some degree to the result.” (Syl. H 4.)
And in the opinion it was said:
“Complaint is made of the refusal of several instructions,, stating that even though they found the defendant had committed acts tending to alienate the plaintiff’s husband from her, yet she would not be entitled to recover if her own acts contributed to such alienation of affecfion. It was not a fit occasion and place for introducing the doctrine of contributory negligence. Of course, no recovery could be had unless the alienation and separation were caused by the acts done and influences exerted by the defendant. If his efforts were the controlling cause, however, and without which no separation would have been had, she might still recover, although other causes may have contributed in some degree to the result.” (p. 414.)
The cause is reversed for a new trial. | [
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The opinion'of the court was delivered by
Hopkins, J.:
The defendant was convicted of assault, and appeals.
The testimony, which was not disputed by the defendant, showed, among other things, that the complaining witness (H. C. Butz) was sitting in the door cleaning his finger nails with a knife; that the defendant approached him, calling him vile names and stating to him that there was going to be a fight, with or without knives, as Butz preferred; that the defendant took his knife out of his pocket, told Butz that if he (Butz) did not put his knife up that he (Clay) would cut his guts out. Butz closed his knife and put it in his pocket. Clay then did likewise. Butz said he did not want to fight but Clay struck him and knocked him down. As Butz was arising Clay again struck him, knocking him down the second time; that, at the time the defendant made the threat, he held his knife in his right hand with the blade open; that immediately after the second time he struck Butz, he again had his knife in his hand.
The same testimony, substantially, was given by the same witnesses both at the preliminary hearing before a magistrate, and at the trial in district court.
The defendant contends that the complaint and warrant under which he was arrested charged simple assault only, and that the magistrate had no authority to bind him over for trial in the district court; that the charge against him constituted a misdemeanor only, and that jurisdiction, having been first acquired by the justice court, the district court was without jurisdiction to try him until he had been tried in the justice court. In support of these contentions he argues that the trial court erred in overruling a motion to dismiss the prosecution because of want of jurisdiction; in overruling his motion to quash the complaint, the warrant and the information; in overruling his demurrer to the state’s evidence and motion for a directed verdict; in the giving of alleged improper, and incomplete instructions; and in overruling his motion in arrest of judgment. These various contentions are without merit. The complaint, warrant and information stated:
“Whereas, complaint in writing has been made to me, and it appearing that there are reasonable grounds for believing that on the 15th day of February, 1922, in Clark county, and state of Kansas, one Emery Clay did then and there unlawfully, feloniously assault H. C. Butz with a deadly weapon, to wit: a large pocket knife held in the right hand of the said Emery Clay with the blade open, and the said Emery Clay did then and there threaten to cut the guts out of the said H. C. Butz with said large pocket knife with the blade open. Contrary to the form,” etc.
The complaint sufficiently charged a felony, and under the evidence, the justice was warranted in binding the defendant over for trial in the district court. The trial court sustained the information as charging a felony, but instructed the jury only for assault. We are of the opinion that the trial court committed no error in so doing. (See R. S. 62-1023; The State v. Burwell, 34 Kan. 312, 8 Pac. 470; The State v. Way, 76 Kan. 928, 93 Pac. 159; The State v. Wright, 112 Kan. 1, 208 Pac. 630.)
The defendant also contends that the trial court erred in overruling a motion to retax the costs. Following his contention that the complaint and warrant alleged only a simple assault, he argues that he should not be charged with costs which accrued in the district court. He states that he offered to plead guilty to simple assault in justice court. It appears, however, that his offer to plead guilty was in connection with a stipulation that he fix the penalty for his guilt. No offer appears to have been made to plead guilty to assault in the district court. This contention is not tenable. A defendant has no right, on pleading guilty to an offense, to prescribe what penalty shall be inflicted as punishment. It does appear, how ever, that two items of cost in the district court were improperly charged to him: $5 for filing the information and $25 for trial in district court. These items are not in conformity with R. S. 28-105, which, among other things, provides:
“Whenever the prosecuting witness or defendant is adjudged to pay the costs, the court shall tax as costs the following fees: for drawing indictment or information for felony, five dollars; for drawing indictment or information for misdemeanor, two dollars and fifty cents; for drawing complaint for misdemeanor, two dollars and fifty cents; for trial in case of murder or manslaughter, twenty-five dollars; for trial on other felony cases, ten dollars; for trial in misdemeanor cases, five dollars.”
The costs in this regard should be retaxed in accordance with the provisions of the statute, as for misdemeanor.
As modified, the judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a promissory note and to foreclose a mortgage. The defense was duress. It was tried to a jury, verdict and judgment for plaintiff, and defendants appeal.
Riney owned an automobile which he took to Doll, a car painter, to be painted. Without authority to do so Doll drove the car on a trip, had an accident and damaged the car. Riney asked Doll to pay or settle the damage. At the time Riney was quarantined at home because of scarlet fever in his family and he told Doll to settle with an attorney whom he named. Doll employed an attorney. After some bickering the two attorneys and Doll got together and agreed upon the settlement. In effect they agreed that the car was worth $1,400 before Doll damaged it, and Doll and his wife executed a note to Riney in that amount and secured the same by a second mortgage upon real property. Doll did not want to keep the car, so an agreement was drawn and signed by the attorneys by which Doll was to take the car to certain mechanics and have it repaired. Then Doll was to paint it and sell it, Riney to assist in effecting a sale, and the proceeds were to be applied, first, to pay the mechanics for making the repairs, and the balance upon the note to Riney. This was done, and this suit was brought to recover the balance due upon the note and to foreclose the mortgage.
The defendants filed separate answers, admitted the execution of the note and mortgage and that the same was not fully paid, but averred that they were executed under duress. On that point Doll’s answer alleged that “plaintiff called upon the defendant and presented him with the contract, note and mortgage set forth in the petition. ... At that time . . . plaintiff . . . demanded that they sign the same immediately and stated to these defendants that if they failed or refused to sign the same, he would have the defendant, C. E. Doll, criminally prosecuted. The plaintiff further threatened the defendant with physical violence; and the defendants, believing that if they did not sign the said contract, note and mortgage, the plaintiff would carry out his threat of instituting criminal proceedings and of doing the defendant bodily injury.” The answer further avers that had it not been for fear of prosecution and physical violence he would not have signed the contract, note and mortgage, and further, that the amount was greatly in excess of the damages to the car and was unconscionable and unjust. The separate answer of Mrs. Doll averred that at the time she signed the note and mortgage she was advised that plaintiff had made threats to her husband to have him criminally prosecuted and had also threatened him with personal violence and that she feared the threats would be carried out and this was her sole reason for signing the instruments. The reply was a general denial.
The evidence disclosed that the car was damaged the morning of October 12. Doll saw Riney that day and told him he wanted to pay the damage he did to the car. The note, mortgage and contract were drawn at the office of plaintiff’s attorney late in the afternoon of October 15. The. persons present at that time were plaintiff’s attorney, Doll, and his attorney. Riney was not present; neither was Mrs. Doll. Doll signed the note and mortgage at that time and his attorney took them to Doll’s residence, where they were signed by Mrs. Doll without objection. Neither Riney nor his attorney was present. She had never talked to Riney and did not know him. There is no claim that Riney’s attorney made any threats of any character which induced the execution of the instruments. In fact, the evidence is that plaintiff’s attorney asked Mr. Doll to get an attorney to look after his interest, that he might be fully protected.
The evidence concerning duress is substantially as follows. Doll testified that on October 15 ■
“I went down to Mr. Riney’s house about eleven o’clock and Mr. Riney came out of the house. ... We talked about his car and he told me this was only a second mortgage and he wanted a mortgage on the other place. I told him my wife would not listen to that. I started to go to the car and Mr. Riney said: • ‘I am not through with you.’ And he reached in and shut the car off. He said: ‘Any man that takes another man’s car out like you did and wrecks it is a d-dirty dog as ever lived.’ He said: ‘I will prosecute you to the fullest extent of the law if you do not fix that deal up with Mr. Light at his office, and then if I cannot do anything with you I will beat the soup out of you.” '
He further testified :
“I made up my mind to sign it because of the threats. Q. What was you afraid of. A. I was afraid he would fulfill his statements. Q. What was you afraid of. A. I was afraid he would beat the soup out of me and get out a criminal action against me. . . . He looked me straight in the face. I thought he was going to hit me any minute. He said he would beat the soup out of me. Q. When did you first become frightened and scared of Mr. Riney. A. When he hollered that he was not through with me. . . . Q. Did Mr. Riney make any threats or do anything except shut off the car that day you were up to his house. A. Yes, sir, after he shut off the car he had his fist up there and I thought he might hit me. I told him I was in no shape and commenced to beg him not to hit me. He said, ‘I won’t do it now, but I will afterwards.”
This testimony is corroborated in part by defendant’s son, Cecil Doll, who was with him. The evidence is that these threats were communicated to Mrs. Doll by her husband (though that testimony was later withdrawn) and by the son. Mr. Doll’s attorney testified that he had objected all the time to that kind of a contract being ■ drawn because he thought it was not to Doll’s best interest; that the damages were too high; that he did not tell Doll not to sign it, but it was not his way of a settlement, he wanted to see what the damages were; that at the time the contract, note and mortgage were signed Doll did not appear to be nervous and excited, although prior to that time he had been and seemed to be worried about something.
At the close of the testimony plaintiff demurred to the evidence as not being sufficient to show duress because of a threat of personal violence nor because of threats of criminal prosecution. The court thought there was enough evidence to go to the jury on the question of threat of imprisonment and overruled the demurrer on that point, but sustained it so far as it went to the question of threats of personal violence, but he did not strike out the testimony pertaining thereto, permitting it to go to the jury for whatever light it might throw upon the defense of duress by threatened imprisonment. The evidence on behalf of plaintiff contradicted defendant’s evidence as to any threats, but we have stated that most favorable to the defendants, as shown by the abstract.
Appellant complains, first, that the court sustained the demurrer as to the threats of personal violence. It will be noted that the only threat of personal violence made by Riney was in the alternative— in the event he could not get redress by law — and in the future, after he had first tried redress by law, which would necessarily mean some time — several months or possibly two or three years. This was about eleven o’clock in the morning. The papers were not drawn nor executed until five or six o’clock in the evening. There was no evidence of threatened imminent personal violence when the papers were drawn and executed. The court did not err in taking this' question from the jury. (Gabbey v. Forgeus, Adm’r, 38 Kan. 62,15 Pac. 866.)
Appellant further complains of the court’s second instruction, defining duress, which reads:
“You are instructed that the defense pleaded by the defendants is what is generally termed ‘duress’ and duress is defined as that degree of constraint or danger, either actually inflicted, or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firmness.”
This definition of duress was taken evidently from the opinion of this court in McCormick v. Dalton, 53 Kan. 146, 149, 35 Pac. 1113, and quoted with approval in Banking Co. v. Veale, 84 Kan. 385, 392, 114 Pac. 229, and is one which has been used on recent occasions by the courts of other states. (Wood v. Telephone Co., 223 Mo. 537; Kline v. Kline, 14 Ariz. 369), and was formerly quite generally recognized as correct. (Ex parte: William Wells, 59 U. S. 307; James & Haverstock v. Dalbey, 107 Iowa 463; 2 Greenleaf on Evidence, 16th ed. § 301; 9 R. C. L. 714.) The courts now generally recognize that this definition is inaccurate for at least two specific reasons, viz.: first, experience has furnished no yard stick by which the firmness of the human will can be measured, and second, even though that could be done, one having a weak will is as much entitled to the protection of the law as though his will were' of ordinary firmness or of extraordinary firmness. When one uses the bludgeon of duress to break the will of his adversary and thereby gains a wrongful or unconscionable advantage, a court will relieve the victim of the consequences of the act he was thus forced to perform, whether his will be weak, requiring but one blow to shatter it, or whether it be of ordinary firmness requiring several, or whether it be as adamant requiring many.
The courts how quite generally recognize the inaccuracy of defining duress by applying it to a person of ordinary firmness. In 9 R. C. L. 716, it is said:
“By many if not most of the modem authorities, however, the true doctrine of duress is held to be that a contract obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress, whether the oppression causing the incompetence to contract be produced by what was formerly deemed duress, and relievable at law as such, or wrongful compulsion remediable only by an appeal to a court of equity. According to this view, what constitutes duress is matter of law; whether duress existed in the particular transaction is usually matter of fact, though of course the means may be so oppressive as to render the result an inference of law. There is no legal standard of resistance with which the person acted upon must comply at the peril of being remediless for a wrong done to him, and no general rule as to the sufficiency of facts to produce duress. The question in each case is, Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Under this theory duress is to be tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim. The means used to produce that condition, the age, sex, state of health, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his will power. Obviously what will accomplish this result cannot justly be tested by any other standard than that of the particular person acted upon. His resisting power, under all the circumstances of the situation, and not any arbitrary standard, is to be considered in determining whether there was duress.” (See, also, Knight v. Brown, 137 Mich. 396; Nebraska Mutual Bond Ass’n v. Klee, 70 Neb. 383; Price v. Bank of Poynette, 144 Wis. 190; Radich v. Hutchins, 95 U. S. 210; Bank v. Loos, 142 Iowa 1; Sulzner v. C. L. & M. Co., 234 Pa. St. 162; Wilbur v. Blanchard, 22 Idaho 517.)
This court recognized this distinction in Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807, and thoroughly committed itself to the modern definition of duress, and quoting approvingly from Galusha and another v. Sherman and others, 105 Wis. 263:
“There is no legal standard of resistance which a party so circumstanced must exercise at his peril to protect himself. The question in each case is, Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, and was such advantage thereby obtained?” (p. 505.)
Also in Milling Co. v. Gas & Electric Co., 115 Kan. 712, where it was said:
“We have traveled far from the common law duress of bodily imprisonment or fear of loss of life or member or of imprisonment, to the modem doctrine of involuntary payment. There must be unlawful coercion; but we are no longer restricted to goose flesh producing agencies, and the mythical man of ordinary courage and firmness is no longer invoked as a standard.” (p. 715. See, also, Bank v. Bay, 90 Kan. 506, 507, 135 Pac. 584, and Bank v. Francis, 100 Kan. 225, 230, 164 Pac. 146.)
Indeed, as early as 1887 in Gabbey v. Forgeus, Adm’r, 38 Kan. 62, 15 Pac. 866, this court approved instructions set out in full in the opinion (pp. 65 to 67) giving the test for duress in conformity to the so-called modern definition. Though the definition of duress given by the court is erroneous, it does not necessarily follow that the giving of it constitutes reversible error. In this case there is no intimation in the record that defendants are not persons of ordinary firmness. If they are, the instruction was correct as applied to them, though inaccurate as a general definition of duress. If they are persons of extraordinary firmness the instruction is favorable to them and they cannot complain. By not showing that they do not measure up to the standard of a person of ordinary firmness defendants have not shown that the instruction was erroneous as to them and cases are not reversed in this court unless error is shown. But we shall not base our decision on this point, for to do so would recognize that the term “a person of ordinary firmness” has a definite practical meaning, which the modern authorities deny. Perhaps the reason the modern authorities deny the existence of the mythical man of ordinary firmness is not so much from the lack of the power of courts to create and define such an individual if by so doing the ends of justice would be better promoted — just as we have the man of ordinary prudence in negligence cases — but because of his uselessness in the administration of justice. His presence in court is to defeat justice in a case where the victim of duress does not have sufficient will power to measure up to that standard and such a person is entitled to the protection of a court as much as any one. Indeed, a court of equity should be even more solicitous of a wrong to a person of weak will or mentality.
But let us examine this threat of prosecution as testified to by Doll, the only witness who pretends to quote it. Riney is quoted as saying to Doll, if you do not fix this up with my attorney “I will prosecute you to the fullest extent of the law and then if I cannot do anything” I will give you a beating. Obviously this is not equivalent to a threat of criminal prosecution. It should be remembered that Doll had damaged Riney’s car under circumstances which caused Riney to think Doll was liable to him for damages to the amount of the injury, and this much Doll had previously admitted to Riney when he talked with him October 12. On the 15th the talk was about how to fix it up. Riney complained about Doll giving him a second mortgage and wanted a mortgage on another place. It may be noted that whatever Riney’s threats were they were not sufficient to overcome Doll’s will as to the kind of mortgage he gave, for when he settled with Riney’s attorney that evening he gave a second mortgage, the kind he wanted to give when he talked to Riney and the kind Riney told him he did not want. Riney’s threat ' was if you do not fix this up with my attorney “I will prosecute you to the fullest extent of the law,” which is equivalent to saying that he would use whatever provisions of the law were available to him, and that is accompanied by a suggestion that he was uncertain what could be done by legal proceedings. Riney, of course, had a right to use whatever provisions of the law were available to him. It is not duress for one person to threaten another that he will use the law in so far as it is applicable to accomplish what he regards to be his rights. This question has been thoroughly settled, not only by our own court, but by the courts generally. (See Kiler v. Wohletz, 79 Kan. 716, 720, 101 Pac. 474; Banking Co, v. Veale, 84 Kan. 385, 393, 114 Pac. 229; Kimball Co. v. Raw, 7 Kan. App. 17, 19, and cases cited.)
It is true that Doll testified that he was afraid Riney would get out a criminal action against him, but that is not what Riney told him. He at no time mentioned a criminal action. Under this evidence the court would have been justified in sustaining a demurrer. Not having done so, but having submitted the case to the jury, the fact that the .court gave an instruction inaccurate as applying to duress generally though possibly accurate as applying to this particular case, would not justify this court in ordering a new trial.
Finding no material error in the record the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
L. M. Coil recovered a judgment under the federal employers’ liability act against the government agent in control of railroads, on account of injuries received by him while working as a track laborer repairing the roadbed of the Salina Northern railroad, and the defendant appeals.
1. One of the appellant’s contentions is that the plaintiff was not engaged in interstate commerce at the time of his injury, in which case the federal act would not apply. The Salina Northern company owns a railroad lying wholly in the state of Kansas, but used for both state and interstate transportation. The defendant concedes that if the Salina Northern were an interstate road in the sense of having tracks in more than one state the plaintiff, who was repairing a track used in both classes of commerce, would have been engaged in interstate commerce within the rule declared in Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146. That case sustained a recovery under the federal act by an employee who was injured while carrying bolts for use in the repair of a bridge used in both local and interstate commerce. There the road of which the bridge was a part did in fact extend into another state, but in our judgment the decision was not affected by that circumstance, but was based specifically and expressly upon the fact of the bridge being used in interstate as well as intrastate commerce, and therefore is controlling here. In the opinion the phrase “interstate road” is not used, nor is it mentioned that the road extended into another state further than that may be regarded as indicated by the statement that the bridge was in New Jersey. The following excerpt includes all the language directly bearing upon the grounds for holding the injured workman to have been engaged in interstate commerce:
“The defendant was operating a railroad for the transportation of passengers and freight in interstate and intrastate commerce, and the plaintiff was an iron worker employed by the defendant in the alteration and repair of some of its bridges and tracks at or near Hoboken, New Jersey. . . . These bridges were being regularly used in both interstate and intrastate commerce. . . . That the defendant was engaged in interstate commerce is' conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. ' Among the questions which naturally arise in this, connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or- was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so. closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? . . . True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.” (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 150, 151, 152.)
In a later case it was said: “In Pedersen v. Delaware, Lackawanna & Western R. R. Co., it was held that one carrying bolts to be used in repairing an interstate railroad and who was injured by an interstate train was entitled to invoke the Employers’ Liability Act. In other words, that one employed upon an instrumentality of interstate commerce was employed in interstate commerce.” (Erie R. R. Co. v. Collins, 253 U. S. 77, 83.) “Interstate railroad” may readily be regarded as a convenient phrase used to designate a road doing interstate business. A bridge over which interstate traffic passes seems to be quite as much “an instrument of interstate commerce” where the road of which it is a part lies wholly in one state as where it extends into another. At any rate the mere use of that expression in connection with the Pedersen case cannot overcome the effect of the language already quoted from the opinion therein. Incidentally it may be remarked that the reference to an “interstate train” is obviously the result of a clerical or typographical error, for it was an intrastate train that ran into and injured Pedersen.
It is said that work done in the maintenance of the main line of an interstate road is interstate commerce (see note, 24 A. L. R. 635) ,• and this is necessarily true even if by “interstate road” is meant a road whose tracks extend beyond the boundaries of a single state, for such a line would necessarily be used in interstate commerce. In one of the notes referred to in that just cited a summary of the track-repairing cases is made in these words: “One engaged in maintaining or repairing track already laid, over which interstate traffic passes, is engaged in interstate commerce.” (Note, 14 A. L. R. 732.)
The defendant cites State of Texas v. Eastern Texas R. Co., 258 U. S. 204, as supporting the view that a workman repairing the track of a railroad situated wholly in one state is not engaged in interstate commerce. It was there held that the act of congress authorizing the interstate commerce commission to permit railroads to abandon the operation of their lines does not give the commission power to authorize a railroad lying in a single state to discontinue local business. We think the analogy to the present situation not close enough to affect the conclusion already announced.
2. A further contention of the appellant is that the special findings of the jury do not disclose actionable negligence. The plaintiff was injured by a push car on which he was riding jumping the track. The jury found that the car was going at the rate of at least ten miles an hour and that the defendant’s negligence consisted “in running the push car ahead of the motor” instead of having the motor pull it. The defendant urges that as a matter of law it could not reasonably have been anticipated that running the push car ahead of the motor at ten miles an hour would cause it to jump the track. There was evidence that a person named, described as general manager, had given an instruction to a section hand of the Salina Northern never to put a push car ahead of a motor car. A Union Pacific section foreman gave this testimony: “Push cars should be run behind the motor to avoid accidents. We always figure there is more danger in pushing anything than there is in pulling it. I cannot tell why that is so.” There was also evidence that the push car weighed about 400 pounds; that the ordinary rate at which cars were run in doing such work was five or six miles an hour; that about the point where the plaintiff was injured the ties were out of line and low, a witness for the defendant saying that there might be a low joint here and there. While the jury’s finding already referred to eliminated the roughness of the track as a separate ground of negligence its condition was a matter to be considered in determining the probability of the push car staying on the track.
We think the evidence was sufficient to warrant the jury in concluding that it was contrary to rule and to practice to run the push car ahead of the motor; that it was safer to pull it because of a greater likelihood of its keeping the track; and that under the circumstances shown it might reasonably have been anticipated that-pushing the car would cause it to leave the rails.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by a property owner and taxpayer of the city of Hill City, owning property abutting one of the paving projects in question, to enjoin the city and its officials from issuing further temporary notes for paving improvements, and from paying those previously issued, and from issuing bonds to redeem such temporary notes and .to pay the cost of such paving improvements, and to enjoin the levying of special assessments against the property of plaintiff and others similarly situated, and praying that the assessment made be set aside, and for a mandatory order that defendants restore funds of the city to their proper funds, and to enjoin the carrying out of the terms of a certain contract for the sale of bonds for paving improvements. The bank which had contraetéd to purchase the bonds intervened. „ The case was tried to the court, judgment was rendered denying plaintiff the relief sought, except as to an item of interest on the temporary notes. Plaintiff has appealed from the adverse judgment, and the intervening bank has appealed from the judgment respecting interest on thé temporary notes.
The controversy grows out of street paving initiated in Hill City in 1925, and later completed. The improvements are spoken of by the parties as five separate projects. No question is raised.in this court as to the legality of the proceedings in any of the projects prior to the passage of the respective ordinances authorizing the improvements, hence we need not state those proceedings. It is not possible, with the brevity necessary in an opinion, to state all the details shown by the abstract concerning each of these projects. Perhaps the following will be sufficient. As to project No. 1: The ordinance authorizing the improvement was passed August 3, 1925, and on that date the engineers’ preliminary statement was filed; notice to bidders was published August 6; on August 11 the contract was executed for the work. As to project No. 2: The ordinance authorizing the improvement was passed August 11, 1925; on August 15 the contract was executed for this work. As to project No. 3: The ordinance authorizing the improvement was passed December 2, 1925; on December 4 the contract was executed for this work. As to project No. 4: The ordinance authorizing the improvements was passed December 2,1925; on December 4 the contract was executed for.this work. As to project No. 5: The ordinance authorizing the improvement was passed December 21, 1925; on December 26 the contract was executed for this work. On February 19, 1926, appraisers were appointed to value and appraise the lots, pieces, tracts and parcels of ground subject to special assessment and taxation for the improvements for all of the five projects above mentioned. On March 8 the appraisers made their report, and a resolution was passed providing for a special session of the mayor and councilmen on March 18, for the purpose of hearing complaints of persons interested in the appraisement and valuation fixed by the appraisers. Notice of this meeting was given in the official city paper. The meeting was held, but no one appeared to complain, and the assessment and appraisement, as made by the appraisers, was approved and adopted. The assessment ordinance was passed and published April 5, 1926.
On August 11, 1925, the Fidelity National Bank and Trust Company of Kansas City, Mo., made a written .proposal, which was accepted, to the mayor and council, “For $100,000, more or less legally issued internal improvement bonds of your city delivered to us. . said bonds to be of denomination of $1,000, bearing interest at the rate of 4% per cent. . . . We will pay par and accrued interest to date of delivery. . . . We agree to carry your temporary notes at 4% per cent. This bid is to cover all bonds issued in connection with paving contracts awarded in 1925 . . .” On August 13 the city clerk had published in the official paper a notice that “On and after the 13th day of August, 1925, the city of Hill City, Kansas, will have for sale approximately $100,000 worth of internal improvement bonds. The city desires the best rate of interest that will bring par and accrued interest for the bonds. Purchasers of these bonds will be expected to do necessary temporary financing in connection with the paving program.” On’August 27 a motion was passed by the city council “That the contract entered into between the city of Hill City, and the Fidelity National Bank and Trust Company for the sale of bonds, be and the same is hereby confirmed as per terms of contract on file in the office of the city clerk.” On September 27 Frank Grecian presented to the mayor and council a petition, signed by 67 residents of the city, praying that the bonds be sold as provided by law to the highest bidder, in case the state school fund commission did not purchase them, and on the same day Grecian notified the city officials in writing that he had a reliable and responsible purchaser for such bonds in any amount up to $100,000 at par for bonds bearing “considerably less than 4% per cent interest,” or at a price “reasonably above par,” for bonds “bearing 4% per cent or a higher rate of interest.” The minutes of the council recited the presentation of the petition, and “as bonds had already been contracted, this petition was tabled.”
Temporary notes, 44 in number, for the total sum of $125,227.70, were issued. The trust company has paid that amount to the city, and the city has paid such amount to the contractor and to the engineers. These temporary notes, when executed, bore a due date of June 1,1926. They bore interest at the rate of 4% per cent from date to maturity, and Nos. 1 to 17, inclusive, provided that they should bear interest after maturity at the rate of 6 per cent, and Nos. 18 to 44, inclusive, provided that they should bear interest after maturity at the rate of 8 per cent until paid.
The city of Hill City owned a waterworks and electric light plant. At the time it was installed, some years ago, iron water pipes had been laid, on or across the streets improved by the several paving projects above mentioned. The city officials thought the pipes might rust and need replacement, which could not well be done after the pavement was laid, and deemed it advisable to replace the iron pipes in such streets with lead pipes. On August 3, 1925, an ordinance was passed reciting in the preamble the street improvements authorized by project No. 1, and providing:
“That all water connections within the area of the proposed pavement and all properties not now connected but deemed advisable by the council shall be so connected with lead-pipe water connections under the supervision of the water superintendent.
“The cost of making such connections shall be considered a part' of the cost of improving such streets and shall be paid for from funds derived from the sale of bonds for the improvement of said streets.”
On August 11 a similar ordinance was passed with reference .to street improvements in project No. 2. With reference to the other projects no ordinances were passed relating to the lead-pipe water connections, but in the completion of all of the projects (except No. 4) the iron pipes were removed and the lead pipes put in, at a total cost, as contended by plaintiff, of $6,975.45. Defendants admit that $3,672.78 for these lead-pipe connections was charged to the paving fund, but express a doubt as to whether the balance of the amount claimed by plaintiff was charged to that fund.
A few bills, aggregating $113, for the paving work, were paid from the water and light fund. This is the sum which plaintiff seeks by the mandatory order to have restored to the water and light fund.
Turning now to the legal questions presented, plaintiff contends that the cost of the improvement of the water mains by the taking out of iron pipes and substituting lead pipes is not a proper charge in connection with the paving improvements. This contention must be sustained. The statute provides for the extension and improvement of the water system in plants municipally owned. We shall not stop to consider whether the proceedings should have been under R. S. 12-834 or R. S. 12-837, for the governing body of the city did not attempt to comply with either of these provisions. On behalf of defendants and of the intervener it is argued that the improvement'of the water mains and connections deemed advisable by the governing body of the city prior to the laying of the pavement was a necessary cost of the paving, and in that connection cite People v. City of Buffalo, 137 N. Y. S. 464. In that case a narrow pavement was widened. In the opinion it was said:
“The work of moving lamp-posts and hydrants is necessary in connection with widening the pavement. If it were not done, the .lamp-posts and hydrants would obstruct the new pavement. While it is not included in the plans and specifications nor in the contract, it is work which the commissioner of public works might do, if authorized thereto by the common council. City charter, §§ 271, 272, title X. When the common council ordered the improvement without other provision for this work, it, by reasonable implication, authorized the commissioner of public works to set back the lamp-posts and hydrants. When it ordered the expense to be included in the assessment, it provided for the payment thereof pursuant to section 272 of the charter. Section 279 of the charter authorizes the commissioner 'to lay water pipes’ without advertising for proposals to do the work, although the expense may exceed $500, and moving the hydrants comes fairly within the meaning of the term ‘to lay water pipes.’ ” (p. 466.)
Clearly this case cited does not support the action taken by the city officials in the case before us. There, by the provisions of the city charter, the common council had authority to order the removal of the lamp-posts and hydrants, and the court held that it did so; hence, the action was specifically authorized by law. Here there is no such authorization by statute for having the improvement of the Water mains charged in connection with the paving, and the statutory procedure for the improvement of the water mains was not complied with. The defendants and the intervener also cited Longworth v. Cincinnati, 34 Ohio St. 101, but what was done there also turned upon the construction of specific provisions of the statute and was authorized by such provisions. Acklin v. Parker, 29 Ohio Cir. R. 625, also is cited. That was a question of changing water boxes in the street. It was held the cost thereof was a legitimate item of expense in the street improvement, but the opinion does not disclose what caused the court to reach that conclusion; that is, whether it was the interpretation of some statute bearing upon the question. So none of these cases supports the position of the defendants and intervener. They also cite cases from other states, and Bailey v. City of Wichita, 108 Kan. 282,196 Pac. 1070, to the effect that necessary engineering expenses and the installation of storm sewers for the drainage of the improved street are proper items of expense. There is no controversy about such items in this case; hence, the cases have no bearing. But defendants and the intervener contend even if this were not a proper paving expense, it is not charged in the assessment to property owners, but charged to the city at large; that the city could issue bonds for the improvement of the water mains, the bonds to be paid by taxation by the city at large; hence, that it is no greater expense to plaintiff to pay the bonds if issued as a part of the paving bonds, or if they were in a separate issue of waterworks. There is no merit in this contention. The city had no authority to levy taxes for one purpose and use the moneys collected for another (Const., art. 11, §4). The statute provides how the waterworks bonds shall be issued. No attempt was made to follow the statute, and as a property owner the plaintiff is entitled to question an invalid issue of bonds. (R. S. 60-1121.)
Plaintiff contends that the contract for the sale of the bonds was void for the reason that it did not conform to the statute (Laws 1925, ch. 93), which apparently contemplates that the bonds shall first be offered to the state school fund commission, and if such commission does not purchase the bonds the issue may be advertised in the official paper and placed on sale for not less than par and accrued interest, or may be sold at public sale, and for the further reason that the contract for the sale of the bonds was for all bonds which might be issued for internal improvements on work commenced in the year 1925, when the city commission had for consideration only project No. 1, the cost of which would be approximately $50,000. Plaintiff further argues that the bonds could have been sold at a more advantageous price. Our court has held valid and enforceable a contract for the sale of improvement bonds made before the bonds were offered to the state school fund commission. (City of Washington v. Investment Co., 117 Kan. 15, 230 Pac. 311; Junction City v. Bank, 96 Kan. 407, 153 Pac. 28.) It is said in the argument that it is the practice to make contracts for the sale of bonds at or about the time the contract for work is made rather than to wait until the work is completed, for the reason that the city needs money on temporary notes to pay for the work as estimates are approved, and would have difficulty in financing the work otherwise, if indeed it could be financed at all. The most that can be said about this matter is that it was irregularly conducted. There was no evidence in the court below that the bonds could have been sold to better advantage. They were sold at the price authorized by statute. It is the function of the state, at the instance of the attorney-general or county attorney, to question the regularity of the proceedings of municipal officials. A private citizen and taxpayer has no standing to question such matters unless thereby his taxes are increased or he is otherwise financially injured. Since plaintiff failed to make a showing of such injury by reason of the contract for the sale of bonds, there is nothing concerning that of which he can complain. The same may be said of plaintiff’s objection that appraisers were not appointed for each separate project, and that an assessment ordinance was not passed for each project separately. At best these matters are irregularities which do not concern plaintiff unless his taxes are increased or he is otherwise financially injured, and in this case plaintiff made no showing of such financial injury. Plaintiff complains that a small amount of the paving expense was paid from the water and light fund, and asked for an order that the sum be restored. This was denied, for the reason that the sum is inconsequential, on the authority of City of Valdosta v. Harris, 156 Ga. 490. But there is another reason why the ruling of the court in this respect is not erroneous. All of the expense of improving the water mains should have been paid from the water and light fund. The fact that only a small portion of it was so paid is not a reason why the amount paid should be turned back into the water and light fund.
Plaintiff contends that the assessment ordinance is void for the reason that it does not show that the appraisement and assessment were made upon each block separately, as the statute provides. (R. S. 12-605.) The ordinance does not show that the appraisement and assessment were not so made, and the natural presumption is that the appraisement and assessment were made in conformity to the statute. There is no showing in this case that plaintiff’s property would be appraised or .assessed differently than it was if such appraisement and assessment should be made on each block separately, if we assume it was not so made. It would be futile to require a new appraisement and assessment specifically showing that it was made upon each block separately without anything in the record to indicate that a different result would be obtained. The trial court did not err in denying the injunction for this reason.
The intervener has appealed from the ruling of the court that it could collect only 4% per cent interest on the temporary notes from their respective dates until they are paid. The intervener specially disclaimed any intent to collect 8 per cent after maturity on any of the notes, although some of them so provide, and says that some of the notes were so written by inadvertence, but does contend that since the contract for the purchase of the bonds and the carrying of temporary notes provided no due date for the temporary notes, and since a due date was later agreed upon between the city officials and the trust company, after which due date the notes should bear 6 per cent interest, and the notes were so drawn, that it should collect interest at the rate of 6 per cent after the due date of the note. The difficulty with this argument is that the contract between the trust company and the city, of August 11,1925, did in fact provide a due date for the temporary notes. It provided for the issuance of temporary notes until the bonds could be delivered, and contained the provision: “We agree to carry your temporary notes at 4% per cent.” It seems no other reasonable interpretation could be given to that contract than that it was contemplated at the time the contract was made that the temporary notes would run until the bonds could be issued; hence, the date of the issuing of the bonds was the due date of the temporary notes, as provided by the contract. The trial court correctly held that the intervener was entitled to interest on temporary notes at the rate of 4% per cent from their respective dates until the bonds were issued.
From what has been said it necessarily follows that the judgment of the court below will be affirmed in all respects except as to the amount paid for the improvement of the water pipes and connections. As to this question the cause is reversed with directions to the court to ascertain, either from the record before it or by a new trial, the amount expended for the improvement of the water pipes charged to the paving improvement and deduct that from the bonds to be issued for that purpose. The amount of this cost should be paid from the water and light fund, if that is sufficient, but if it is not, the proper statutory steps should be taken to issue bonds for that purpose. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff and defendant are separate banking corporations in the same city. Each had a mortgage on the cattle of John Carmichael. Plaintiff’s mortgage specifically recited that it was subject to a prior mortgage of $3,500 in favor of defendant. Defendant foreclosed its mortgage by taking possession of the cattle, advertising them for sale, and selling them and applying the proceeds upon the debt due it. Plaintiff sued defendant for damages, for an accounting of the proceeds, and disposition of the mortgaged cattle. There was a judgment for defendant, and the plaintiff has appealed.
Briefly, the facts are substantially as follows: John Carmichael was engaged in the cattle business. He was indebted to defendant, and secured such indebtedness by mortgages on his cattle. The first mortgage necessary to be noted was dated July 12, 1922, and covered 146 head of cattle described by class, quality and number as to each class, and being all the cattle then owned by Carmichael. It seemed that Carmichael did some trading — bought, sold and shipped cattle. Sometimes he would buy in the country, bring cattle to his place, ship some of those purchased with some he previously had, and keep some of the cattle purchased with his herd. On two or three occasions, at least, he bought at the stockyards at Wichita and took the cattle to his place and later shipped some or all of those and perhaps some he previously had at his place. So the individual cattle he had at his place were changed from time to time. The manager of defendant bank knew of this practice and had a parol agreement with Carmichael that he might do this, and that the bank would honor his check for cattle purchased; that as such cattle were sold the proceeds should be returned to the bank to take care of such checks, and that the cattle purchased and retained at his place should be regarded as having been purchased with the bank’s funds, or be regarded as secured by the mortgage in lieu of mortgaged cattle sold. While there was never a complete change of the identity of all the cattle mortgaged, there were changes made from time to time. On November 6, 1922, the indebtedness was renewed by a new note and mortgage covering 165 head of cattle, specifically described. On February 6, 1923, the indebtedness was renewed and increased to $3,500 and a new note and mortgage given covering 195 head of cattle, specifically described. On August 8, 1923, this indebtedness was renewed, a new note and mortgage given covering 181 head of cattle, specifically described. Each of these mortgages was properly recorded. Each of these successive mortgages was considered as a. renewal of a former indebtedness and mortgage and to be in accordance with the parol agreement of the parties.
On July 20, 1923, Carmichael gave to the plaintiff bank (as security for an old indebtedness) a mortgage upon 75 acres of growing corn, four mules and two horses and “one hundred eighty head of mixed cattle (steers, cows, heifers and calves. All of the above stock is being kept in either McPherson, Rice, or Reno county) subject to first mortgage of $3,500 in favor of Bank of Inman.” This mortgage was filed for record, but no notice was given to the defendant bank or its officers of this mortgage, and they had no actual knowledge of it until September 7, 1923. About August 8, 1923, Carmichael shipped 63 head of cattle and sold them at the stockyards at Kansas City. Out of the net proceeds the commission company took $300 to pay a note Carmichael owed, and remitted the balance, $1,647.95, to the defendant bank to the credit of Carmichael. Some of the cattle shipped were cattle Carmichael had on his place, and some were cattle he had bought and paid for by checks on defendant bank under his parol agreement with that bank. With the proceeds of this shipment Carmichael bought 38 head of cattle at the stockyards at Wichita, for which he paid $997.89. These cattle were taken to his place. It is difficult from the record to get the exact number of cattle exchanged by the various purchases and sales made by Carmichael; but perhaps that is not important. On September 7 the representative of plaintiff bank inquired of the representative of defendant bank about the proceeds of the cattle shipped to Kansas City and the balance due on the mortgage to defendant bank, and then informed defendant of plaintiff’s mortgage. Defendant immediately sent for Carmichael and inquired whether he had given the mortgage to plaintiff. Carmichael said he had, and that plaintiff had agreed to take up defendant’s mortgage should it become necessary. Defendant informed Carmichael that it could not carry its mortgage in that condition. On that day Carmichael gave defendant a check for $450, drawn on his account in defendant bank, to apply upon his note. It was understood that the balance of his account should be so applied when checks given for cattle then outstanding were paid. This balance, $219.81, was so applied. Carmichael stated he thought he could get the money in a few days to pay defendant. On September 14, payment not having been made, defendant took possession of the Carmichael cattle, advertised them, and sold them, and applied the proceeds upon its debt. The sum was not sufficient to pay defendant in full. Thereafter plaintiff brought this action, with the result as above stated.
Appellant argues two questions: First, Did the parol agreement as "to buying and selling cattle between defendant and Carmichael render defendant’s mortgage void as to plaintiff? Second, Did the arrangement between defendant and Carmichael, in accordance with which Carmichael sold some of the cattle mortgaged and with the proceeds bought other cattle which he took to his place, and the defendant’s foreclosure of its mortgage, as stated, amount to a conversion by defendant of the cattle mortgaged as against the plaintiff, holding a junior lien?
Perhaps the questions can best be answered by the following analysis: As between the defendant bank and Carmichael, the parol agreement relating to the buying and selling of cattle was valid. (11 C. J. 571, et seq.; State v. Gorman, 113 Kan. 740, 744, 216 Pac. 290.) The taking of a junior mortgage by plaintiff, and having it recorded, gave no notice to defendant of such mortgage. (Burnham v. Citizens Bank, 55 Kan. 545, 40 Pac. 912.) Plaintiff’s mortgage had no effect on defendant or its dealings with Carmichael until defendant had actual notice of plaintiff’s mortgage. (Greer v. Newland, 70 Kan. 315, 317, 77 Pac. 98; Bank v. Walters, 92 Kan. 391, 140 Pac. 864.) Defendant had no actual notice of plaintiff’s mortgage until September 7, 1923. (There was an attempted showing of actual notice at an earlier date, but that was controverted, and as to that the trial court found against plaintiff.)
Upon this actual notice of plaintiff’s mortgage defendant acted promptly and decisively. Carmichael was sent for and informed that the arrangement for buying and selling cattle must be discontinued and his indebtedness to defendant paid or made satisfactory. No cattle were purchased after that date, and the amount on deposit in defendant bank to the credit of Carmichael was applied upon his debt to the bank, and the defendant bank proceeded to foreclose its chattel mortgage by notice and sale. The cattle on hand did not bring enough to pay the debt due defendant, hence there was no surplus arising from the sale to be accounted for. The arrangement between defendant and Carmichael did not make defendant’s mortgage void as to plaintiff, neither did the sale of the cattle by the defendant bank under its mortgage amount to a conversion of the mortgaged cattle as against the plaintiff. This is clear under the authorities above cited, unless there were some cattle mortgaged to plaintiff which were not covered by defendant’s mortgage, or which defendant did not have the right to sell. There is no merit in the suggestion that some cattle were sold which were covered by plaintiff’s mortgage, but not covered by the mortgage of defendant, for plaintiff in the mortgage it took recognized the existence of defendant’s mortgage lien to the amount of $3,500 upon all of the cattle described in plaintiff’s mortgage. This effectively estops plaintiff from contending that some of the cattle sold were covered by its mortgage and not by the mortgage of defendant. (Moffatt v. Fouts, 99 Kan. 118, 160 Pac. 1137.)
Appellant argues defendant should have applied the proceeds of the sale of mortgaged cattle by Carmichael upon its debt, and should not have permitted the purchase of other cattle, or the payment of other debts, with such proceeds. This contention would be well taken if defendant had known of plaintiff’s mortgage. Not knowing of plaintiff’s mortgage defendant handled the matter as though plaintiff’s mortgage did not exist, as it had a right to do. There is no reason from this record to question defendant’s good faith, and no bad faith on the part of defendant is established or found by the court. It was the duty of plaintiff to look after its own lien and to see that the proceeds from the sale of the mortgaged cattle were properly applied, or to notify defendant of its lien. It failed to do either of these things.
Appellant cites a number of cases, none of which is directly in point. It will not be necessary to analyze them. There was no error in the judgment of the court below, and it is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a policy of health insurance. The defense was that false statements, material to acceptance of the risk, were made in the application. Plaintiff recovered, and defendant appeals.
The application was signed on August 23,1923, and contained the following:
“I hereby apply to the United Casualty Company for a policy of insurance, to be based upon the following representation of facts:
“1. Do you understand and agree that the insurance, if granted, is to be based upon the following statements, and that any false statement herein shall debar from receiving any indemnity if any such statement is material either to the acceptance of the risk or the hazard assumed by the company or made with intent to deceive? Yes.
“2. Are you now and have you always been in good health? Yes.
“Have you had any sickness or injury in the past five years? If so, give full particulars. No.”
Plaintiff testified the answers to the questions relating to good health and to sickness within five years were not the answers he made to the soliciting agent when the questions were propounded to him. He testified he told the soliciting agent he had had shingles, flu, and a few colds, and in effect had not been in good health during the last five years. The' soliciting agent testified plaintiff told him he had shingles and some other sickness, cold, grip, but the soliciting agent regarded these as trivial matters, not really affecting good health, and did not set them down. Plaintiff testified he told the soliciting agent he had been to Halstead, and had had a knot in his throat. This the soliciting agent denied. Plaintiff testified he did not tell the soliciting agent he had had a small goiter, or enlargement of the thyroid gland, and testified he did not know he had had a goiter, or enlargement of the thyroid gland. Plaintiff had held a health-insurance policy issued by the Liberty Life Insurance Company, and on March 14,1923, he signed a written claim against that company. The claim was in his own handwriting, and when confronted with it, he was compelled to admit that it contained the following:
“9. I have not during the past five years required medical attention except for the following disabilities: (Give date and nature of disability, name and address of physician attending.)
“Enlargement of thyroid gland, Dr. Hertzler, Halstead, Kansas. Shingles, Dr. Carhart, city. Lagrippe', Dr. Yon Leonrod, city.”
An associate of Doctor Hertzler, of the Halstead hospital, testified as follows:
“I have before me a record covering Mark Russell, of Hutchinson, Kansas, which is a part of the record of the Halstead hospital, and it is a correct record. Under date of August 5, 1921, I recorded a portion of the patient’s history, his physical examination, and the treatment given at the time. The diagnosis was mildly toxic goiter, and I suggested medical treatment, rather than physical, and gave medical treatment. There was a slight enlargement of the right side of the thyroid gland, what we would call a rather mild case of goiter. Mr. Russell was back here for treatment three times: on August 17, 1921, August 26, 1921, and September 10, 1921.
“Q. What other doctor or doctors, if any, examined and consulted with Mr. Russell on these later occasions? A. Dr. A. E. Hertzler.
“The goiter was about the size of a walnut. ... It was affecting his heart, and he was running a pulse at that time.”
Since plaintiff tried to deceive the court respecting his knowledge that he had had goiter, and would have done so if he had not been trapped by his signature to an instrument in his own handwriting, the strong probability is the soliciting agent’s testimony that plaintiff said nothing about a knot in his throat was true. However that may be, the application required plaintiff-to give full particulars, and the company was entitled to full and frank answers. He admitted he did not tell the soliciting agent, as he told the Liberty Life Insurance Company, that he had had enlargement of the thyroid gland, for which he was treated by Doctor Hertzler at Halstead. The answers he claimed he gave were framed to avoid candid disclosure that he had had a toxic goiter for which he had been treated by Doctor Hertzler at the Halstead hospital two years before the application was signed. To that extent his answer to the question whether he had had any sickness in the past five years was negative, and the insurance was granted on a false statement material to acceptance of the risk, contained in the application.
The policy was a combined accident and health insurance policy. It provided for weekly indemnity for total and partial disability resulting from accident, for indemnity for specific losses (hands, feet and eyes) resulting from accident, and for payment of a principal sum in case of death resulting from accident. As an accident insurance policy, the policy insured against disability resulting directly, and independently of all other causes, from bodily injury, through external, violent, and accidental means only. The policy also provided for payment of weekly indemnity for disability resulting from sickness. It did not provide for payment of any sum on account of death from sickness. Certain provisions of the policy were common to both classes of insurance, but the health insurance features and the accident insurance features were as distinct as if they had been embodied in separate instruments. Sickness could not create liability on the accident provisions of the policy, and accident could not create liability on the sickness provisions.
The statute reads as follows:
“No misrepresentations made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.” (R. S. 40-330.)
In the case of Becker v. Surety Co., 105 Kan. 99, 181 Pac. 549, recovery was sought on the accident provision of an accident and health insurance policy. Loss was occasioned by death resulting from a gunshot wound. Upon the facts involved the court held the statute applied to a policy on the life of a person, and to the policy, sued on. There is eminent authority that a statute of this kind does not relate to accident insurance. (Baumann v. Preferred Accident Ins. Co., 225 N. Y. 480.) This court is satisfied with the decision in the Becker case, but it does not determine this controversy. The legislature was not dealing with forms of policies. The subject of the act was misrepresentation in obtaining life insurance. Health insurance which does not provide indemnity in case of death from sickness, is not life insurance, and does not become so merely because it is provided for in a combined health and accident policy of the type under consideration. A decision by the Springfield court of appeals of Missouri that if a health and accident policy contains a provision for life indemnity the whole policy is a life policy (Williams v. Mutual Life of Illinois, 283 S. W. 64), is disapproved.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover damages for libelous articles published in a newspaper. The plaintiff in his petition sets out thirty-one causes of action. The defendants demurred to each of them; that demurrer was sustained as to numbers 5, 6, 7, 8,10, 23, 24, 25, 30 and 31 of the causes of action, and overruled as to 1, 2, 3, 4, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 28 and 29. The plaintiff appeals from the order sustaining the demurrer of the defendants to 5, 6, 7, 8,10, 23, 24, 25, 30 and 31 of his causes of action, and the defendants appeal from the order overruling their demurrer to the remaining causes of action set out in the petition.
The petition discloses that at the times mentioned in it, the plaintiff was postmaster at Concordia and that Raymond Green was the editor and majority stockholder of the Blade-Empire Publishing Company, a corporation, engaged in the publication of a daily newspaper known as the Concordia Blade-Empire, published at Concordia in Cloud county. The first cause of action is based on an article which appeared in that newspaper on June 23, 1922, and was as follows:
“ ‘bosses’ disregard protests against committeemen.
“The election commission will meet to-morrow afternoon at 2 o’clock to pass upon the protests against the petitions which have been filed. Ray Green pro-tested against the placing of six of the committeemen’s names_ on the ballot because their petitions did not have the required number of signatures. Some of these were 'boss’ candidates and some were not.
“ ‘Boss’ Knapp said Thursday he had instructed the county clerk ‘to put all of the petitions on and that this would be done if no further protests were filed.’ County Clerk Taylor stated that unless some kick was made the names would all go on the ballot regardless of number of signatures on each. ‘Boss’ Knapp made the further statement that he would have resigned as chairman of the committee when he ’receiyed his post office appointment if he could have been permitted to name his successor. The bosses are going to stop at nothing to try and maintain their control of the Republican party machinery, for it has proved a profitable plum to them in the past.”
The petition alleges that the article was false; that it charged that the plaintiff was unscrupulous and deceitful; that it provoked the plaintiff to wrath and exposed him to public hatred, contempt, scorn, and ridicule, and deprived him of the benefit of public confidence and social intercourse in the community in which he lived; and that it damaged him in.the sum of $250. No special damages are alleged.
Defendants argue that the language used was not libelous per se and for that reason, because no special damages are alleged, the first cause of action set out in the petition does not state facts sufficient to constitute a cause of action against the defendants.
In 37 C. J. 36, the following language is found:
“When words in themselves not actionable become so by reason of some special damage occasioned by them, such special damage must be particularly averred in the declaration, even though express malice is proved. In such case it is necessaiy that the declaration should set forth precisely in what way the special damage resulting from the publication of the words. It is not sufficient to allege generally that plaintiff has suffered special damages.”
Unless the language used was actionable per se, a cause of action is not stated because special damages are not pleaded. Was the language used actionable per sef
Section 11 of the bill of rights of the constitution of this state reads:
“The liberty of the press shall be inviolate: and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.”
Section 18 of the bill of rights reads:
“All persons, for injuries suffered in person, reputation or property, shall have remedy 'by due course of law, and justice administered without delay.”
Section 21-2401 of the Revised Statutes in part reads:
“A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse.”
In 36 C. J. 1152, the following language is found:
“If ‘libel’ is defined by statute, the statutory definition governs, and any language which is fairly included in such definition is libelous per se.”
That rule has been followed in California and Texas. (Schomberg v. Walker, 132 Calif. 224, 226; Stevens v. Snow, 191 Calif. 58, 62; Guisti et al. v. Galveston Tribune, 105 Tex. 497, 504.)
The article was such as would tend to provoke the plaintiff to wrath, to expose him to public hatred, contempt, and ridicule, and to deprive him of the benefits of public confidence and social intercourse. If the article were false, it was a libel within section 21-2401 of the Revised Statutes, and for that reason was actionable per se. It was not necessary to allege special damages.
We quote from Jerald v. Houston, 120 Kan. 3, 6, 242 Pac. 472, as follows:
“Appellee urges the point that under the ordinary method of assessing land for taxes in this state the landowner is not required to swear to the value of his land, and it is argued that the statement that plaintiff swore his land was only ‘worth $35.75 per acre when the assessor called,’ could not charge him with a crime. There are decisions holding that in that situation, where no such crime was defined by statute and consequently where no such crime could be committed, such a writing did not and could not charge the aggrieved party with a criminal act, and the writing was consequently not libelous. (Newell on Slander and Libel, 3d ed., 129.) On a subject so prolific of litigation as libel, the student will find support for divers and sundry views, not only among different courts but among different justices of the same court. (See State v. Grinstead, 62 Kan. 593, 608, 64, Pac 49.) We are inclined to hold that the proper test of the libelous character of a publication lies in a fair application of the statute quoted above [R. S. §21-2401], and the fact that the offensive language, critically analyzed, does not charge the plaintiff with the commission of a crime is not enough to make the plaintiff’s petition demurrable. In Hetherington v. Sterry, 28 Kan. 426, it was held:
“ ‘It is not necessarily a defense to an action of libel that every act charged in the alleged libelous article might be done without the violation of any law. It is enough if the acts charged are such as are calculated to render the party in the judgment of his fellows infamous, odious, or ridiculous.’ (Syl. ¶ 1.)
“In the opinion it was said:
“‘Neither is it true that an article is not libelous simply because the acts charged upon the plaintiff are such as he might do without violation of any law. Whatever might be the case as to slander, the law of libel is much broader. In the third edition of 1 Hill. Torts, p. 237, § 13, the author thus states the law:
“ ‘ “So every publication, by writing, printing, or painting, which charges or imputes to any person that which ... is calculated to make him infamous, odious, or ridiculous, is prima jade a libel, and implies malice in the publisher, without proof of an intent to vilify. (White v. Nicholls, 3 How. 266; Curtis v. Mussey, 6 Bray, 261.)” ’ (p. 429.)
“This view of the law persists through our later decisions. We have held that it is libelous to write of d, man as a eunuch (Eckert v. Van Pelt, 69 Kan. 357, 76 Pac. 909), yet such writing could not be construed as charging him with a crime. To write of officers of a corporation that no one locally has any faith in their integrity or ability does not state that those officers had committed a crime, but this court held such a writing was actionable per se. (Schreiber v. Gunby, 81 Kan. 459, 106 Pac. 276.) To cast aspersions on a man’s pedigree does not charge him with a crime, but we have held it to be slanderous per se. (Rohr v. Riedel, 112 Kan. 130, 210 Pac. 644. See, also, 25 Cyc. 260; 17 R. C. L. 289.)” (p. 7.)
In Dever v. Clark, 44 Kan. 745, 753, 25 Pac. 205, the court approved the following instruction:
“Although the plaintiff alleges in his petition that he has, on account of the publications complained of, sustained a damage of one thousand dollars on account of each of said publications, it is not necessary for him to prove any specific damage; for the law presumes the reputation of the plaintiff to be good, as also it presumes that his official duties as a public officer were honestly performed, and his professional obligations properly discharged; and an article which tends to hold him up to the public view as an unskilled lawyer and an incompetent officer, is libelous per se (per se meaning of itself), and entitles the plaintiff to damages, unless the defendant establishes the truth of said publication by a preponderance of the evidence.”
The first cause of action, based on as mild as any one of the entire series of articles published, stated facts sufficient to constitute a cause of action against the defendant.
What has been said concerning the first cause of action might be repeated concerning every other cause of action set out in the peti tion, each of which stated facts sufficient to constitute a cause of action against the defendant.
The judgment of the court overruling the demurrer of the defendant as to certain causes of action set out in the petition is affirmed; the judgment sustaining the demurrer of the defendants to the other causes of action set out in the petition is reversed.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Illinois Zinc Company brought this action to recover for a balance alleged to be due for zinc shingles and accessories sold and delivered to the defendant, C. Y. Semple. The plaintiff prevailed, and judgment was rendered against defendant for $10,683.68. Defendant appeals.
There is no substantial question as to the goods sold and delivered and the prices fixed for them, but the defense was that they were sold to defendant under a warranty that they were reasonably fit ■for roofing purposes, whereas they were unfit and in fact worthless. In pleading his defenses, defendant alleged fraud in the transaction, but in argument defendant states that he did not attempt to prove fraud but had relied and was relying on breaches of an implied warranty and also an express warranty by which he suffered damages, and he asked for an award of $42,061.64, the difference between the amount of plaintiff’s demand and the damages sustained by him on account of the breaches of warranty. The case was submitted to the court without a jury and special findings of fact were made. In respect to warranty, the court found that the plaintiff was engaged in manufacturing zinc shingles, a patented article, at Peru, 111., and had advertised the shingles'in trade journals. The defendant, who had been engaged in mining in lead and zinc fields, desired to become a distributor for plaintiff in Oklahoma, and he opened negotiations with the plaintiff with a view of handling the shingles in that state. After some correspondence he sent his agent and sales-manager, S. A. Maxwell, to the factory at Peru to examine the shingles, and, if satisfactory terms could be reached, to arrange for an agency contract. Maxwell was shown through the plant and informed as to the processes, the length of time thé plaintiff had been making shingles, that the shingles had been tested on roofs, some of which were inspected by Maxwell. He was told that the shingles were satisfactory roofing material, that they had been placed on roofs for two winters and one summer, that the matter of expansion and contraction had been considered and taken care of and that they were satisfied they were good roofing as far as they had gone, but of course they could not be responsible for any unseen obstacles that might arise. A bunch of the shingles was given to Maxwell to show to defendant, as well as some advertising matter. The sample shingles were given to defendant by Maxwell, who told him of the information he had gained at the factory, and within a few days defendant executed a written proposal to enter into a contract with plaintiff. This was accepted and a contract was entered into between the parties, by which it was agreed that defendant was to act as distributor for plaintiff, to handle its goods in Oklahoma, and was authorized to-enter into contracts with dealers, subject to the approval of plaintiff. It was stipulated that defendant was to receive the goods at a discount from the prevailing list prices of twenty per cent on some of them and fifteen per cent on others, and a freight allowance of eighty cents per 10Ó pounds on all shipments made to him on his account. Payments on all shipments were to be made within thirty days from the date of invoice without further discount. There was a stipulation that either party might.terminate the contract upon a ninety-day notice. Shipments were made to defendant from time to. time from March 23,1922, to about October of 1923, for which payments were made until May, 1923, and no further payments being made the plaintiff refused to make further shipments, and it also discontinued the manufacture of shingles.
The first shingles sold by the plaintiff contained two nail holes located near the edge of the shingles, the design being to drive one nail in the shingle, but a second hole was placed in it so that if one nail should strike a crack in the roofing, the other hole could be used. Some of the shingles first laid did not give satisfactory service, on account of the shingles slipping out of proper position. To remedy a situation where one nail was driven in a crack in the roofing another nail was driven in the upper part of the shingle; still later a new shingle was put out'by the plaintiff in which a slot was made in the upper part of the shingle and the second nail was driven through this slot and allowance was thus made for expansion and contraction of the shingle.
The court found that the contract between the parties contained no express warranty, and further,- that while there were many things said by the plaintiff in advertisements, letters and oral statements as to the value of the shingle as roofing material, these representations and statements were largely matters of opinion and were not intended as nor understood to be warranties. Among the ■findings as to the shingles and their value, is the following:
“The defendant in this case claims that the shingle in question is entirely worthless as a roofing material, and has tried the case as to the question of damages by reason of misrepresentation or breach of warranty entirely on this theory, and on this matter the court finds that many roofs were laid with the Illinois zinc shingles which gave a great deal of trouble and required repairing, and often relaying; but, on the other hand, the uncontradicted evidence shows that many roofs that have been constructed with these shingles, of both types, have lasted for several years and are making a good, serviceable roof. And as the evidence shows that from the nature of the product any defect in the roof will almost necessarily manifest itself in the course of a year or two, it is apparent that these roofs will be lasting and serviceable. From the fact that many roofs are in good condition it must be apparent that the fault must lie in the method of application.
“The court, therefore, finds that the Illinois zinc shingles were and are of some value and not entirely worthless as a roofing material, and even if there was a breach of warranty or a liability for misrepresentation on the part of the plaintiff, the defendant "could not recover therefor for the reason that all of the evidence of damages was based on the theory or claim of the defendant that the shingles were without value as a roofing material.”
Defendant claims under both express and implied warranties as to the quality and fitness of the shingles for roofing purposes. The rule is that an express warranty excludes an implied warranty relating to the same subject. (Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982; Lumber Co. v. Kelley, 117 Kan. 285, 231 Pac. 71.) The parties, as already stated, entered into a contract for the sale of the shingles. It was unambiguous and comprehensive in its provisions and appears to be quite definite and complete. It related to a specific article that was manufactured by the plaintiff, and although not long in use, it had been on the general market for about two years and had been sold to all who wished to buy. The contract fixed the terms upon- which the shingles would be sold to defendant, including the prices to. be paid. He was made distributor of the shingles in Oklahoma and given the exclusive right to sell them in that state. The shingles were.to be furnished in carload lots and the performance of the agreement was to be subject to the contingencies of strikes, fires, floods, wars and delays in transportation. No mention was made of any warranty of the shingles. In view of the scope and completeness of the contract and of the prior rulings of this court on the point, it is clear that warranties or other conditions cannot be added to the contract. In Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867, the matter of warranty was involved, it having arisen on-a contract for the sale of a-machine in which was stipulated the price, the time of payment, that title should remain in the vendor until payment was made, and some other provisions relating to the purchase, but it contained no words of warranty of the quality of the article sold or its fitness for a particular use, and it was held that a warranty could not be added to it. It was decided that the written agreement was the guide in determining the question and as—
“The terms of the contract, the extent of the obligation undertaken by the parties, are embodied in and limited to what is expressed in the writing, and, as no words of warranty are employed, it will be conclusively presumed that no warranty was intended or éxisted.” (p. 471.)
A number of Kansas cases and other authorities are cited which support the decision. Of course, a different rule applies where fraud is pleaded and proven. Here fraud is not relied on.
Defendant further contends that if an express warranty is not shown, that an implied warranty arose from the statements, advertising and descriptive matter issued and distributed by the plaintiff representing that the shingles were reasonably fit for roofing purposes.
Much testimony was received as to the statements and propaganda mentioned, but the court found from all the testimony that they constituted dealers’ talk or mere expressions of opinion and were not intended or understood by the parties to be warrantees. The defendant contends that the shingles were sold by plaintiff and purchased by himself for roofing, and that there is an implied warranty at least that they were reasonably fit for that use. Apart from the fact that the written contract is presumed to include all the terms, conditions and obligations of the parties, there is another obstacle to the claim of an implied warranty of fitness for the intended purpose. The shingles were not made upon a special order of defendant or for a specified purpose of his own, but were specific articles which were manufactured for the general trade. They were offered on the market by their patent and trade name, to wit: “The Illinois Zinc Shingles,” just as cedar or other kinds of shingles are made and sold to the public generally. It may be said, too, that they were open to inspection and in fact were inspected by defendant before the contract was made. He was engaged in mining zinc and presumably was acquainted with the qualities of such material. Probably that accounts for the fact that he did not ask for a warranty, and it appears that he continued to buy and use the shingles from February, 1922, until November, 1923, long after he had discovered the defects of which he now complains, and at the end was insisting that another car of the shingles be furnished to him. Under the circumstances and in the absence of fraud he was not entitled to claim an implied warranty of the fitness of the shingles for the purposes for which they were purchased, although both parties knew the intended purpose for which they were to be used. As we have seen, they were a described and definite article of merchandise made for the general market, and it has been held that there is no implied warranty in such a transaction that the article is fit for the particular purpose. In Lukens v. Freiund, 27 Kan. 664, it is held that if'a manufacturer undertakes to make an article for a specific and understood purpose, an implied warranty may arise that it will be reasonably fit for the purpose intended, but when there is a purchase of a specific article of a recognized kind or description and the article is supplied, no implication of warranty arises. The court, in reviewing the authorities, quoted with approval the following:
“On the whole, therefore, it may be doubted whether there be any instance in which a knowledge of the object for which a specific chattel is bought will raise an implied warranty that it is fit for that purpose, although a failure to acquaint the vendor with its unfitness may be evidence of fraud, and thus render the vendor liable in an action of tort.” (p. 668.)
The question whether the purchase of an article designated as a “number four fireproof safe,” upon an order which contained no words of warranty, implied a warranty that it was fireproof and would protect its contents from any exposure to fire, was presented to the court and it was held that as the safe had not been manufactured for the purchaser but was made and sold to whomsoever would buy, there was no implied warranty of the quality. (Safe & Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035.) In Kinkel v. Winne, 67 Kan. 100, 72 Pac. 548, a purchaser claimed an implied warranty of fitness for a specific purpose of a thing sold, and in that case the following rule was approved: • • •
“Where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.” (p. 104.)
A case quite similar to the present one is Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179. The plaintiff first asked for damages on the theory that there was an express warranty (Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867), but he lost on that contention. He then amended his petition and asked damages upon the theory that the law implied a warranty of the fitness of a machine for making flour, a known, described and specific machine, which was actually supplied to the buyer. The court held that although the seller was aware of the purpose for which the machine was bought, there was no implied warranty that it would answer for that particular purpose. The question was carefully considered and a great number of authorities were cited which upheld the view taken and to which reference is made. That decision is conclusive against a warranty of any kind in this transaction and against a recovery of damages by the plaintiff. Upon the evidence the court was justified in finding that no misrepresentations were made by plaintiff and relied on by the defendant, and further finding that the representations and statements made were not intended as nor understood to be warranties.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by Charles Winslow against three banking corporations to recover a sum of money he had been compelled to pay to satisfy certain personal-ta'x warrants which the sheriff threatened to execute by levy and sale of 164 head of cattle plaintiff had purchased from defendants.
In the spring of 1922 the cattle had belonged to one C. J. Danner, a farmer of Ness county. These cattle, 164 in number, together with 82 other cattle, a number of horses and hogs, farming machinery, household and other chattels, were listed for taxation by Danner in Franklin township, Ness county. Danner had borrowed $10,000 from the Kansas Investment Company, of Ness City, in three notes secured by two mortgages. One of these notes, for $2,000, was assigned to the Citizens State Bank of Dorchester, Neb.; another note for $3,000 was assigned to the Crete State Bank, of Crete, Neb. These two notes were secured by a chattel mortgage on 81 head of Danner’s cattle. The third note, for $5,000 was assigned to the First National Bank of Augusta, Kan. It was secured by chattel mortgage on 84 head of Danner’s cattle.
Late in 1922 Danner turned over to the Kansas Investment Company as agent for the defendant banks 164 head of cattle, as covered by the above-named mortgages, and left the state without paying his personal-property tax for 1922. The banks kept the cattle until April 11, 1923, when they sold them to plaintiff.
A tax warrant for $78.14 for Danner’s personal-property tax for 1922 was placed in the hands of the sheriff for collection. These cattle were also assessed in March, 1923, in Bazine township, Ness county, and a tax warrant for the personal taxes thereon, nominally charged to Danner, for $95.53, was also delivered to the sheriff for collection.
Winslow paid $172 on these tax warrants, and brought this action against the three banks to recover the sum so paid. The banks defended on the ground that they sold the cattle to plaintiff as chattel mortgagees, and that plaintiff well knew at the time of the transaction that they were selling him the cattle by virtue of the terms of their chattel mortgages and not otherwise.
Another defense was that the 164 cattle which defendants sold to plaintiff under their chattel mortgages constituted only part of Danner’s personal property, and that they obtained only about half of Danner’s herd of cattle. One paragraph of defendants’ bill of particulars which told of Danner’s indebtedness to defendants alleged:
“The said O. J. Danner failed and refused to pay the said note when the same became due and payable, and jailed to pay the taxes levied and assessed upon said cattle for the year 19S2, and this defendant in pursuance of the terms of the said chattel mortgage and in process of foreclosure thereof sold the interest of the said mortgagor and of this defendant in and to the said cattle, to said plaintiff, and in the negotiations for such sale this defendant stated to the plaintiff the sale was a foreclosure sale, that there were tax liens against the said cattle and that the cattle were being sold in foreclosure of the said chattel mort gage and subject to-all tax liens; to all of which matters said plaintiff then and there assented.” [Italics ours.]
The plaintiff’s own testimony tended to prove that he bought the cattle for $6,800 cash, and later that he paid the sheriff the receipted amounts shown on the tax warrants. On cross-examination plaintiff further testified:
“Q. Now then, is it not a fact that at the time you bought the cattle, that Mr. Collett said to you, T will take your $6,800 for the cattle. We will turn them over to you, and release the chattel mortgage’? A. Absolutely nothing to it. He did not tell me anything of the kind. . . .
“Q. Did you ask them if they would release the chattel mortgage? A. No, sir, I never said anything about the mortgage, I was buying the cattle. It was not the mortgage I was buying.”
O. J. Danner testified for plaintiff:
“Q. While you were residing in Ness county, did you have any business dealings with the Kansas Investment Company? A. Yes.
“Q. You may state what was the' nature of those business transactions. A. They held notes and mortgages on my cattle. . . .
“Q. I’ll ask you to state whether or not you had a conversation with the Kansas Investment Company concerning these cattle, .under these mortgages, in the fall of 1922? A. Yes. . . .
“Q. You may state what was said, if anything, in this conversation concerning the cattle you had mortgaged to these three banks, through the Kansas Investment Company? A. I told Mr. Lennen and Mr. Borthwick [officers of the Kansas Investment Company] that I was going to turn the cattle to them and they could do whatever they thought best with the cattle; that I was going to take bankruptcy. I was forced to.
“Q. You may state what, if anything, was said to this? A. Mr. Lennen said he would take it up with the banks.”
At the conclusion of plaintiff’s evidence defendants lodged general and special demurrers against it. These were overruled. Defendants then produced witnesses who testified that when Winslow purchased the cattle he was explicitly told that defendants did not know about the status of Danner’s personal taxes. Collett, manager of the Crete State Bank, testified:
“Mr. Winslow asked if the chattel mortgage would be released. We said that we would turn over the chattel mortgages. Mr. Winslow asked further if the taxes were paid on these 'cattle and we told him we did not know anything about that, that all we would do for his $6,800 was to turn over the ■chattel mortgages.”
Nelson, president of the Citizens State Bank of Dorchester, testified:
“Before the deal was finally dosed, Mr. Winslow said something about taxes. ‘What if the taxes are not paid on these cattle?’ I think that was the only time I said anything. I answered him, saying, T suppose that Mr. Danner will have to pay the taxes as they are the Danner cattle.’ . . .
“Mr. Winslow said that, ‘You will see that those chattel mortgages on those cattle are released?’ And — I think it was Mr. Borthwiek — said, ‘Yes, we will see to that,’ and Mr. Borthwiek released those chattel mortgages that same day.”
Lennen, an officer of the Kansas Investment Company, testified:
“Q. Do you recall any further conversation in the office of the Kansas Investment Company during the consummation of the deal that day? A. The matter of taxes came up.
“Q. Well, who said anything about taxes? A. I think Mr. Winslow; to my recollection.
“Q. What did he say? A. To my recollection, he inquired about the taxes.
“Q. Did you hear any answer to the inquiry? A. Mr. Winslow answered— I think Mr. Collett answered Mr. Winslow, that he knew nothing about the taxes; he was just selling the cattle for so much money.”
The personal-property statement of O. J. Danner for 1922 was introduced in evidence. It showed that on April 10,1922 (as of March 1), Danner owned 52 cattle other than the 165 head held under mortgages by defendant banks. It showed also that Danner owned 15 head of horses and mules and stallions, 8 hogs, 11 farm implements, 1 wagon, 1 automobile, and miscellaneous other goods and chattels, of an aggregate assessed valuation of $6,380.
A tax statement signed by one Sheldon, presumably the person in charge of the mortgaged cattle, showed a listing of 144 cattle in Bazine township (as of March 1) dated April 19, 1923, was also introduced.
The deposition of another witness, W. A. Penley, cashier of the First National Bank of Augusta, was also adduced in evidence. Part of Penley’s deposition was excluded, which raised a question to be dealt with later in this opinion.
The jury returned a verdict for plaintiff for $172. Defendants appeal, assigning several errors which will be noted.
The first error assigned relates to the exclusion of the following testimony from the deposition of W. A. Penley, cashier of the First National Bank of Augusta.
“Q. State what business transactions you had with him (Winslow) with reference to the sale of the cattle described in the Danner mortgage? A. The mortgagor failed to pay the debt when due and was in default. I went to Ness county and took possession of the cattle under the mortgage and proceeded to foreclose the mortgage and sell the cattle. I negotiated with plaintiff and sold the cattle to him. I informed him at the time that I was representing the First National Bank, who was the holder of the mortgage against the property, and that I was selling him the property under foreclosure proceedings for the bank.
“Q. What if anything was said at that time in regard to delinquent taxes against the property? A. I informed plaintiff that there were taxes against the property which he would have to settle. Plaintiff then stated that he would assume and settle the taxes, and the deal was closed on that basis and the price agreed upon was paid by plaintiff and the transaction closed. The First National Bank had no title or interest in the property, except the lien under the mortgage. I informed plaintiff of this fact at the time. Plaintiff knew that these cattle were owned by O. J. Danner and that we were foreclosing our mortgage against them.”
The objection lodged against this testimony was that it was “incompetent, irrelevant, and immaterial, and for the further reason that the same is not responsive to the question and calling for a conclusion of the witness.”
For some one or all of these reasons, not one of which had the slightest merit, this highly probative and important testimony covering the one matter of prime and controlling importance in this lawsuit was excluded. The First National Bank of Augusta was called upon to pay or contribute to the payment of $172 in plaintiff’s behalf, which testimony, if believed (and the trial court did not have the right to disbelieve it when deciding the question of its competency), would have established beyond cavil that the bank was not selling Winslow its own property but simply foreclosing its chattel mortgage. There are, indeed, a few words at the beginning of the answer to question 5 which are not strictly responsive, but they were introductive to the nature of business transactions the witness was asked to narrate, and the objection to that prefatory matter was captious and without merit. The exclusion of the answers. of this witness to questions 5 and 6 was erroneous and prejudicial.
The next error urged relates to the court’s ruling on defendants’ demurrer to plaintiff’s evidence. The basis of the contention is that plaintiff did not show that Danner’s surrender of these 164 head of mortgaged cattle to defendants necessarily implied that he then and thereby parted with all the personal property he possessed, so as to bring into operation that provision of the tax law which read:
“If any person in this state, after his personal property is assessed and before the tax thereon is paid, shall sell all of the same to any one person, and not retain sufficient to pay the taxes thereon, the tax for that year shall be a lien upon the property so sold, and shall at once become due and payable, and the county treasurer shall at once issue a tax warrant for the collection thereof, and the sheriff shall forthwith collect it as in other cases. The one owing such tax shall be civilly liable t'o any purchaser of such property for any taxes he owes thereon, but the property so purchased shall be liable in the hands of the purchaser or purchasers for such tax: Provided, however, If the property be sold in the ordinary course of retail trade it shall not be so liable in the hands of the purchasers.” (R. S. 79-317.)
Defendants refer to the lengthy list of other chattel property which Danner owned in the spring of 1922, and to the silence of the record as to when and how he parted with all his other personal property, or that he turned over all his other chattels to an assignee in bankruptcy prior to the surrender of the mortgaged cattle to defendants ; and therefore, say defendants, the conditions under which the statute would operate were not shown to exist. However, in view of the admissions in defendants' bill of particulars to the effect that the cattle were subject to tax liens, and also the allegations in their bill of particulars that defendants had so informed the plaintiff and that they were selling him the cattle subject to all tax liens, the want of proof that these 164 cattle constituted all the personal property Danner had when he surrendered them to defendants became immaterial. Unless these 164 cattle were all the personal property Danner then had, there was, of course, no tax lien on them; but if there was a tax lien, as alleged by plaintiff and admitted by defendants, it is fairly inferable that Danner had already parted with all his other chattels without paying the taxes thereon, and the lien would therefore attach to these mortgaged cattle.
Another objection to the judgment relates to the tax lien of 1923. Defendants say it was not due. Ere 1923 Danner had left the county. Defendants were in charge of these cattle so as to require them to cause the cattle to be listed for taxation (R. S. 79-301), and since these defendants were banking corporations of distant cities there can be no presumption that they had any other chattel property in Ness county when they sold these cattle to Winslow in April, 1923. Having parted with all these cattle in Ness county after they were assessed and before the tax thereon was paid, a tax lien followed the cattle, and whether the tax was then due or not it would have to be paid eventually, and Winslow having paid it, not as a mere intruding volunteer, but under colorable constraint at least, was entitled to reimbursement.
It is also urged that plaintiff failed to prove that the provisions of R. S. 79-2101 to 79-2105, inclusive, relating to the mode of collecting personal taxes were followed. But Winslow was justified in paying the tax warrants without waiting for all the county officials to perform their particular statutory bits of functioning. If he had waited for all these details, it would merely have enlarged the tax liens by the addition of statutory charges and penalties which these defendants will have to pay if they are eventually held liable.
There is nothing else in this record to justify further discussion. Because of the exclusion of highly probative and material testimony which should have been submitted and considered by the jury, and the want of which very probably did -affect the general verdict, the judgment must be reversed for a new trial.
The judgment is reversed.
Hutchison, J.,'not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by defendant from an order overruling its demurrer to plaintiff’s petition. The legal question involved is the statute of limitations. The petition was filed March 31, 1926. The portion of it material to be considered reads as follows :
“That on or about the 19th day of August, 1921, plaintiff was employed by. said defendant at said roundhouse and repair shop as boiler maker and machinist, and while engaged in the course of his duties with said defendant at said roundhouse and repair shop, the plaintiff sustained injuries to his person, whereby and on account of which the sight of his right eye was destroyed. The plaintiff claimed said injury was caused by and through the carelessness and negligence of the defendant, and filed claim therefor against said defendant for damages on the 11th day of April, 1922, which said claim was thereafter mutually agreed upon as a complete settlement, on or about the 1st day of May, 1922, by plaintiff and defendant’s authorized agent and adjuster, C. M. Gladson, in the city of Pittsburg, Crawford county, Kansas, in the sum of $3,000, which said sum the said defendant, by and through its said agent and adjuster, agreed to pay plaintiff, within a week or ten days thereafter. That said agreement and settlement was orally made between said plaintiff and defendant at said time and place. That said defendant failed and neglected to pay plaintiff said sum of money at the time agreed upon, and after a long series of negotiations in relation to said agreement between said plaintiff and said defendant’s agent and adjuster, C. M. Gladson, throughout the fall and winter of 1922, the years of 1923, 1924 and the winter and spring of 1925, the said defendant, by and through said agent and adjuster, C. M. Gladson, in the month of May, 1925, again agreed to pay plaintiff said sum agreed upon, as aforesaid, as a settlement of his said claim of $3,000. The exact day of the month of May, 1925, when said last promise upon said agreement was made plaintiff does not now remember and cannot allege herein.”
It was alleged the $3,000 had not been paid, and plaintiff prayed judgment for that sum.
The action was filed four years seven months and twelve days after the alleged injury. If the original injury was the result of an ordinary tort the action was barred in two years (R. S. 60-306, 3d clause) from the date of the injury (Railway Co. v. Dale, 68 Kan. 108, 74 Pac. 596). If-it was a liability created by statute, the three-year statute applies. (R. S. 60-306, 2d clause.) In either view an action for the original injury was barred long before this action was brought. If the action is regarded as founded upon the oral agreement of May 1,1922, the three-year statute (R. S. 60-306, 2d clause) applies, and this action was brought too late. The only agreement alleged which was within time to support the action when brought is the one made sometime in May, 1925. This is not alleged to have been in writing. It was made after the statute had run on any action for the original injury, and after the statute had run on the oral agreement of May 1, 1922. 'It cannot support the action on the theory that it was a renewal of the oral agreement of May 1, 1922, for it is not alleged to have been in writing signed by the party to be charged. (R. S. 60-312.) The same may be said of any of the promises alleged to have been made “throughout the fall and winter of 1922, the years 1923,1924 and the winter and spring of 1925.!’ None of these was in writing, signed by the party to be charged. Hence none of the renewed promises extended the three-year period of limitation for an action on the oral agreement of May 1, 1925. If the pleading be regarded as an action for the original injury, the time for the commencement of which has been extended by the agreements pleaded, it cannot be maintained. The statute for extending the time for bringing an action by a new promise (R. S. 60-312) applies only to cases “founded on contract.” It does not apply to actions ex delicto. (Nelson v. Petterson, 229 Ill. 240.) Neither can an action for tort once barred by the statute of limitations be revived by an agreement. (Holtham v. City of Detroit, 136 Mich. 17; Belcher v. Tacoma Eastern R. Co., 99 Wash. 34; Luther and Morgan v. Payne, Agent, 197 Ky. 359; Hegedus v. Thomas Iron Co., 94 N. J. L. 292; 37 C. J. 1097; 17 R. C. L. 894.) Hence, if the pleading be considered from any view suggested, the action was barred when the petition was filed.
The judgment of the court below will be reversed with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the validity of certain tax deeds, the right of possession of the property attempted to be thereby conveyed and the right of the tax deed holder to recover the value of improvements erected thereon.
For some twelve years prior to. the filing of this action, plaintiff was the owner and in possession of the property in controversy. On September 9,1925, defendant Cheeseman procured tax deeds for delinquent taxes for the year 1921. The deeds were recorded September 10, and on September 17 following plaintiff filed in the district court his petition in ejectment, in which he alleged that defendant Cheeseman had wrongfully encroached over the line from adjoin ing property and was starting to erect a small and cheap tile building thereon. Summons was served upon the defendant September 18. Trial resulted in finding the tax deeds voidable. A jury impaneled to try the case returned special findings as follows:
“Q. When was defendant notified that suit had been brought for the recovery of this land? A. September 18, 1925.
“Q. Please state the value of lots 7 and 8, block 83, city of Coffeyville, Kansas, on September 9, 1925. A. Six thousand ($6,000) dollars.
“Q. Please state how much, i'f any, the property above described was enhanced or increased in value by the building of structures thereon on September 18, 1925. A. None.
“Q. Please state if you find the defendant Cheeseman purchased material and continued the building of said structures on and after September 18, 1925. A. Yes.
“Q. Do you find that the plaintiff Upham notified the defendant Cheese-man to vacate said premises and cease the construction of buildings thereon prior to the institution of this suit? A. Yes.
“Q. Do you find that the defendant Cheeseman acted in bad faith in the construction of said buildings in order to enlarge his claim for improvements? A. Yes.
“Q. Did the defendant make valuable and lasting improvements after he received actual notice that this suit had been brought? A. Yes.
“Q. If you answer the previous question in the affirmative, or yes, then state the value of said improvements made after he had received said actual notice. A. One hundred ten dollars ($110).”
The tax deeds were voidable for the following reasons, among others: The printer’s affidavit showing publication notice of sale was sworn to August 3, 1922, a week prior to the first publication and four weeks prior to the last publication of the notice. It should have been made after the publication of the notice, and if it was so made it should have so stated. The affidavit of- publication also was silent as to the year in which the notice was published. There was evidence that the publication notice was not posted up as required by the statute; that the description of land in the publication notice was not as it appeared upon the tax rolls; that the county treasurer’s name was “C. R. Long,” but that the delinquent sale notice was signed “R. C. Long.” Other discrepancies in the proceedings leading up to the issuance of the tax deeds need not be noticed. The deeds being less than five years old, were voidable, for such irregularities. (See Salter v. Corbett, 80 Kan. 327, 102 Pac. 452; Gibson v. Walters, 86 Kan. 101, 119 Pac. 319.)
The defendant Cheeseman made an oral application for an order finding that the sum of $359.73, paid by h-im for taxes and costs in procuring the tax deeds and the accruing interest thereon, be adjudged a first lien on the property; also, that the journal entry provide for a sheriff’s jury to assess the value of lasting and valuable improvements made thereon. It was ordered by the court that the tax deeds “be and the same are hereby canceled, set aside, and held for naught, on the payment by plaintiff . . . into court of the sum of $359.73, for the use and benefit of O. M. Cheeseman, which sum ... is a first lien upon the property described.” The court then took under advisement the question as to whether defendant was entitled to a sheriff’s jury under the occupying claimant’s law. (R. S. 60-1903.) Later the court denied an application of the plaintiff for a writ of assistance to place him in possession of the property and entered an order directing the drawing of a sheriff’s jury under the provisions of the statute above mentioned.
We are of opinion there was no authority for the order allowing the selection of the sheriff’s jury. The statute provides (italics ours):
“In all cases any occupying claimant . . . being in' possession of and holding any land under any sale for taxes authorized by the laws of this state . . . who has obtained title to or possession of without any fraud or collusion on his, her or their part shall not be evicted or thrown oufr of possession by any person or persons who shall set up and prove an adverse and better title to said land until said occupying claimant . . . shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant . . . previous to receiving actual notice by the commencement of suit on such adverse claim by which eviction may be effected.” (R. S. 60-1901.)
Before filing the action defendant was notified by plaintiff not to proceed with the erection of improvements. The statute limits recovery to “lasting and valuable improvements made . . . previous to receiving actual notice, etc.” There was evidence that on the date of the service of summons that the walls of the smaller of the two buildings were practically built; that no construction work had been done on the larger building; that some material was on the ground and that the work done at that time was not of a lasting and valuable character and added no value to the property; that the property was not enhanced in value on that date. Defendant offered evidence contrary to this. The issue was submitted to the jury, who returned the special findings above quoted, which were approved by the trial court. The defendant’s motion for a sheriff’s jury was made after the conclusion of the trial and after the jury had returned its verdict. Through this method, defendant sought to obtain the value of improvements placed upon the property after the filing of suit and after the service of summons. The statute makes no provision for such procedure.
“One who forcibly disseizes another and makes such improvements, or one who makes them after action brought to try the title, can have no claim to have his improvements estimated, because he has no right to choose the mode of improvement of another man’s property against his known will, and justice will not compensate him at the hazard of doing wrong to the owner.” (Morrison v. Robinson, 31 Pa. St. 456, 459; see, also, Estate of Gleeson, 192 Pa. St. 279, 73 Am. St. Rep. 808.)
The record shows that plaintiff had paid into court the amount of defendant’s tax lien. Under the circumstances, plaintiff was entitled to the writ of assistance for which he applied, putting him into possession of the property.
The judgment is reversed and the cause remanded with instructions to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the purchaser to rescind a contract for the purchase of a “He royalty” in certain land because of the nonperformance of such contract on the part of the sellers, and to recover the money paid, with interest. It was tried to the court and jury, special questions were answered, and plaintiff recovered the full amount claimed. Defendants have appealed.
Briefly, the facts shown by the record are substantially as follows: The defendants, W. B. Harrison and J. W. Craig, were the owners of the southwest quarter of a certain section in Sedgwick county. There was an existing oil and gas lease on the east one-half and the northwest quarter of this land, and the Empire Drilling Company was drilling a well on the east half of the quarter section. There was also an oil and gas lease on the southwest quarter of the quarter section, which lease was not then being developed. On April 20, 1921, plaintiff had a conversation with the defendant Harrison about a royalty on the west half of the quarter section. They talked about the leases then in force on the land, and Harrison stated he had retained the customary one-eighth royalty. Plaintiff asked Harrison what he would take for one-half of his royalty, and Harrison quoted the price at $2,400. Plaintiff said he would purchase it, and gave Harrison his check for $2,400 and received from him the following written memorandum:
“Received of A. J. Bellport, $2,400, payment for 14.6 royalty on west Vs of southwest % section 33, township 26, range 2 east, Sedgwick county, Kansas, title to be delivered as soon as papers are completed.
(Signed) W. B. Harrison and J. W. Craig,
. By W. B. Harrison.
Wichita, Kansas, 4-20-1921.”
Plaintiff took this to his attorneys, told them of the transaction, authorized them to examine and pass upon the abstract of title to the real property, and to see that the papers were executed and delivered necessary to assign to him the royalty purchased. Defendants also turned the matter over to their attorneys to have the abstract of title to the land completed and to prepare for their execution papers necessary for the assignment of the royalty sold. The abstract was brought to date, presented to plaintiff’s attorneys, and by them approved.
Counsel for defendants prepared a typewritten form of assignment, reciting the two leases on the property and conveying an undivided one-half interest in and to the royalties mentioned in such leases. This assignment was duly executed and acknowledged by defendants and presented to counsel for plaintiff, who declined to accept it on behalf of the plaintiff. Counsel for plaintiff prepared an instrument which conveyed an undivided one-half interest in all the oil and gas, etc., lying under the land described, also a half interest in the grantor’s rights under leases now or hereafter existing, including all rents and royalties accrued, and to accrue, a perpetual right to go upon the premises to drill wells and produce oil, etc., the grantor to be entitled to share half on paying half of the expenses, to the same extent as though the grantee were the absolute owner of half of the land. Counsel for defendants objected to the form of the instrument and declined to recommend that defendants execute it. Counsel for the parties had several conferences concerning the matter, in each of which counsel for defendants contended that all his clients were required to assign was the royalties under existing leases, while counsel for plaintiff contended that in addition to that he should have an instrument which conveyed one-half of all the oil and gas in place, royalties and bonuses which might accrue or become payable on future leases, and the perpetual right to go upon the premises and explore for oil and gas, the grantors to have one-half of the proceeds upon paying one-half of the expenses. About the middle of June the well which was being drilled by the Empire company on the east half of the quarter section came in a dry well. It had been drilled to a depth of about 3,000 feet, which was the depth the drillers had contracted to drill. After this there appears to have been but little, if anything, said with reference to any assignment of the royalties from defendants to. plaintiff for more than three years and until about August 26, 1924. Plaintiff and his attorney then went to the defendant Harrison to talk about an assignment of the royalty. Harrison said he supposed the matter had been abandoned when the well came in dry; that the oil and gas leases on the land at that time had expired and been released, and that defendants had sold the land. Plaintiff, through his counsel, insisted that he should have an assignment, and Harrison said he would see what he could do about it. There were two or three conferences and some correspondence concerning the matter, extending over several months, and some effort was made to get the then owner of the land 'to execute the kind of conveyance plaintiff desired, but he declined to do so, at least none 'was executed. This action was brought January 28, 1925.
It was the position of the plaintiff in the court below, and is here, that a custom existed in the oil fields of southern Kansas, including Wichita, by which the ordinary meaning of the word “royalty” was enlarged so as to include one-half of the oil and gas or other minerals lying in the land in place, the right to bonuses and royalties from existing and future leases, and the perpetual right of the owner of such royalty to go upon the land and explore for and produce such oil, gas and other minerals. The court instructed the jury:
“That the ordinary and legal meaning of the word royalty as applied to the oil and gas business, independently of any custom existing on the subject, is that a royalty is the compensation provided in oil and gas leases for the privilege of drilling for oil and gas, and consists of a share in the oil and gas produced under existing leases, but a royalty interest does not consist of a perpetual interest in the oil or gas as they lie in the ground. On the expiration of the existing leases the right of the owner of the royalty expires. If, therefore, you find that there was no such custom as is contended for by Bell- port and as set forth in instruction 5, you are instructed that Bellport’s interest in the land was only such as is defined in this instruction, and that since the leases have expired his interest in the land has terminated and your verdict should be for the defendants.”
No complaint is made of this instruction, in so far as it gives the ordinary meaning of the word “royalty.” It appears to accord with the authorities. (Robinson v. Jones, 119 Kan. 609, 240 Pac. 957; Miller v. Sooy, 120 Kan. 81, 242 Pac. 140; Hinerman v. Baldwin et al., 67 Mont. 417; Indiana, etc., Oil Co. v. Stewart, 45 Ind. App. 554; Raynolds v. Hanna, 55 Fed. 783, 800; Burke Hollow Coal Company v. Lawson, 151 Ky. 305; Kissick v. Bolton, 134 Ia. 650.)
The first legal question presented is whether, in view of the fact that the word “royalty” used in the written memorandum has a well-known meaning, such meaning can be enlarged, as contended for by plaintiff, by showing a custom. The answer must be in the negative. In McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121, it was held:
“The proper office of usage or custom is to explain technical terms in contracts to which peculiar meanings attach; to make certain that which is indefinite, ambiguous or obscure; to supply necessary matters upon which the contract itself is silent; and generally to elucidate the intention of the parties when the meaning of the contract cannot be clearly ascertained from the language employed.” (Syl. ¶ 3.)
In Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579, a written lease for a store building made no provision with respect to which party should pay for water, but the answer alleged, and the jury found, that a custom generally known and acquiesced in prevailed in Arkansas City by which, in the absence of any agreement, the landlord pays for water furnished the tenant in case of such a lease. It was held:
“That the existence of the alleged usage or custom could impose no liability upon the landlord, nor could it create a contract where the parties have made none, and that proof of such usage is not admissible where the terms of the written lease are clear and unambiguous.” (Syl. ¶ 5.)
In Strong v. Ringle, 96 Kan. 573, 576, it was said:
“The general function of usage and custom is definition, explanation, elucidation. Whenever the matter is clear there is no function to be performed.”
In Commission Co. v. Mowery, 99 Kan. 389, 161 Pac. 634, 162 Pac. 313, it was held:
“Ordinarily custom and usage are admissible merely to explain or elucidate something uncertain or ambiguous contained in a contract.” (Syl. ¶ 2.)
And in the opinion it was said:
“The contract evidenced by these telegrams is free from uncertainty or ambiguity and hence . . . there was no room for usage or custom to operate.” (p.396.)
In Eckhardt v. Taylor, 90 Kan. 698, 136 Pac. 218, the lease contained an agreement on the part of the defendants to “keep in good repair all fences surrounding said farm lands and all buildings except the general wear and damage by elements.” There was evidence of a local custom for those handling cattle to “ride the fences,” carrying “staples and a hammer and the necessary tools for repairing a fence.” It was.said:
“The provision of the lease regarding the keeping up of the fence was not ambiguous, and, within the authority of a case recently decided by this court, could not be affected by evidence of a local custom.” (p. 701.)
In Henderson v. Petroleum Co., 104 Kan. 653, 180 Pac. 228, the syllabus reads:
“In an action to recover for the value of well-drilling tools which were destroyed by fire, it was shown that plaintiffs agreed to drill an oil and gas well for the defendant and were to receive $1.75 a foot, and $60' a day for day work, which included underreaming, pulling the pipes, cleaning out, and work of that kind. Nothing was said about the responsibility of either party for losses of tools by fire or otherwise. Held, that in such an action it is incompetent to prove an alleged general usage and local custom throughout the oil fields of Kansas that when drillers are working for and under the direction of the owner of the well being drilled, the latter is responsible for losses of the drillers’ tools resulting from fires.”
In Manufacturing Co. v. Merriam, 104 Kan. 646, 180 Pac. 224, the requisites of a custom are stated, also the character of the evidence necessary to establish it. It was held the evidence was insufficient to establish the existence of a custom in the oil fields for dealers in wire cables to make adjustments to purchasers of defective cables sold without warranty.
The instrument prepared by plaintiff’s counsel, and which he insisted should be executed by defendants, is more than an assignment of royalty, within the usual and ordinary meaning of that word. It is (1) an assignment of royalties (a) under existing leases and (b) future leases; (2) a conveyance of one-half of the minerals in place in the land, and (3) a perpetual oil and gas lease, granting to the assignee or grantee, at any or all times in the future, to enter upon the premises and explore for oil, gas or other minerals and produce and market them if found, the grantor to have a share of such min erais produced in the event only that he had paid one-half of the expense. To enlarge the ordinary meaning of the word “royalty” by proof of a usage or custom so as to require these additional conveyances and obligations of the assignor, is so unreasonable as not to be entertained. Generally speaking, the law is not like a costume, to be put on or taken off in conformity to the dictates of usage and custom. (Clark v. Allaman, 71 Kan. 206, 231, 80 Pac. 571.) The usage and custom relied upon must not be in opposition to well-settled principles of law, nor unreasonable. (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444.)
Here the written memorandum used the word “royalty” in a sense that is perfectly intelligible, having a definite legal meaning. It was not ambiguous. It was not open to explanation or enlargement of meaning by proof of custom. There is no controversy in this case as to the meaning of the fraction one-sixteenth. It is one-half of the land owners’ one-eighth provided.for in the lease.
It is not necessary to examine the evidence to see if it supports the findings of the jury of the existence of the custom contended for by the plaintiff. Well-informed, reliable witnesses testified to the existence of such custom; other witnesses, evidently just as well informed and as reliable, stated that no such custom existed. Reading the record, at least, it can hardly be said that the custom was established by that degree of proof required by the rule stated in Manufacturing Co. v. Merriam, 104 Kan. 646, 180 Pac. 224. When the parties made their deal they talked of nothing but the existing leases, their form and the one-eighth royalty reserved in them, and from their talk at the time it would seem that they had nothing else in mind. But in view of the conclusion already reached we shall not go further into the evidence.
Appellants contend that plaintiff could not, under the facts disclosed by this record, maintain this action as one for rescission for nonperformance. The ordinary remedy for nonperformance is an action for specific performance, or for damages. There are situations in which rescission is proper (9 C. J. 1181 et seq.). But whether rescission is a proper remedy need not be decided in this case in view of the conclusion heretofore reached. Neither is it necessary to decide the question argued as to the statute of limitations.
The judgment of the court below is reversed, with directions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Fatzer, J.:
Two appeals are before us arising out of the following: Defendants Fred R. and Virginia Vieux commenced the construction of a house in Augusta, Kansas, and purchased lumber and materials from plaintiff, The T. M. Deal Lumber Company; the labor and construction (in a large part) was performed by defendant Lawrence Knebler. Difficulties arose as to the payment of labor and materials as a result of which plaintiff lumber company filed its verified materialmen’s lien statement on April 30, 1954, and defendant Knebler filed his verified statement for a mechanic’s lien on the same date. On July 30, 1954, plaintiff lumber company commenced its action to foreclose its materialmen’s lien. It made the Vieux and Knebler parties defendant as well as The Prairie State Bank, a corporation, and The Eureka Federal Savings and Loan Association. To this petition defendant Knebler filed an answer and cross petition to foreclose his mechanic’s lien. Defendants Vieux demurred to the petition of plaintiff lumber company. On April 14, 1955, this demurrer was sustained. On the same day the demurrer was sustained plaintiff lumber company presented to the district court a motion for leave to file an amended petition, which had attached thereto the amended petition sought to be filed. The court permitted the amended petition to be filed, and granted defendants Vieux twenty days in which to plead. Copies of the motion and of the amended petition were served upon counsel for defendants Vieux prior to or on the date it was heard, but not upon Knebler or his counsel or upon other parties defendant or their counsel. However, the journal entry sustaining the demurrer and the motion to file the amended petition was approved by counsel for all parties defendant. Later, copies of the motion and the amended petition were mailed to counsel for defendants Knebler, The Prairie State Bank and the loan association.
Defendants Vieux filed a motion to strike the amended petition on the ground that all adverse parties to the action were not given notice of plaintiff’s motion for leave to file the amended petition, nor of the hearing of said motion. On June 17, 1955, the district court overruled the motion to strike, and granted defendants Vieux ten days in which to demur or twenty days in which to answer. Thereafter, and on June 28,1955, defendants Vieux and The Prairie State Bank, a corporation, demurred to the amended petition. On October 12, 1955, the district court overruled both demurrers, and defendants Vieux appeal. The appeal is from the order overruling the demurrer and from no other ruling. This is appeal No. 40,151.
The other appeal, No. 40,137, involves the correctness of the order of the district court overruling the demurrer of defendants Vieux to Knebler’s cross petition.
We shall first consider appeal No. 40,151. Defendants Vieux (hereinafter referred to as appellants) specify as error the.overruling of their demurrer to the amended petition, and also the order of June 17,1955, overruling their motion to strike the amended petition. When this appeal was argued, counsel made oral application to amend the notice of appeal to include the order overruling the motion to strike the amended petition. We permitted the appeal to be argued on its merits. At conference we considered the application. Following G. S. 1949, 60-3310; Boss v. Brown, 132 Kan. 86, 88, 294 Pac. 878; Vincent v. Werner, 140 Kan. 599, 602, 38 P. 2d 687; McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 115, 122 P. 2d 787; Grant v. Reed, 163 Kan. 105, 111, 179 P. 2d 945; and Matthews v. Jackson, 176 Kan. 397, 403, 271 P. 2d 798 we allowed the amendment. Accordingly, we shall consider the appeal as though the notice of appeal included the motion to strike the amended petition.
Appellants contend the district court erred in refusing to strike the amended petition on the ground that all adverse parties had not been given notice of plaintiff’s motion for leave to file the amended petition, nor were they served with notice of the hearing of said motion, nor were they given copies of the amended petition prior to the hearing. Appellants further contend that G. S. 1949, 60-722 and 60-723 require plaintiff to serve all adverse parties with copies of its motion and proposed amended petition prior to the time it was heard by the district court, and in the absence of such service of notice, the district court did not have jurisdiction of all necessary parties and the order sustaining the motion for leave to file the amended petition was void, and that the amended petition should have been stricken. We find no merit in this contention. Appellants apparently overlook G. S. 1949, 60-761, which reads:
“If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court or judge in its discretion shall direct.”
It is readily observed that when appellants’ demurrer was sustained it was within the sound judicial discretion of the district court to grant leave to file an amended petition. (Fowler v. Mohl, 168 Kan. 416, 214 P. 2d 301; Moeller v. Moeller, 175 Kan. 848, 852, 267 P. 2d 536.) The court or judge has full discretion with respect to allowing amendments and its ruling under this statute is reviewable only upon abuse of discretion. (Krouse v. Pratt, 37 Kan. 651, 16 Pac. 103; Byington v. Comm'rs of Saline Co., 37 Kan. 654, 657, 16 Pac. 105; Sheldon v. Board of Education, 134 Kan. 135, 143, 4 P. 2d 430; Board of Education v. Barton County Comm'rs, 144 Kan. 124, 127, 58 P. 2d 40.) When the district court sustains a demurrer to a petition it has authority to permit the plaintiff to file an amended petition as the court or judge in its discretion shall direct (Deinlein v. Pace, 163 Kan. 752, 754, 186 P. 2d 231), and notice thereof is not required to be served upon the adverse party as provided in G. S. 1949, 60-722, 60-723. These statutes have no application to the filing of amended pleadings since complete discretion rests in the court or judge. (G. S. 1949, 60-761.) The record discloses plaintiff had its proposed amended petition before the district court and a copy of it was served upon counsel for appellants prior to or at the time the motion to file the amended petition was heard. The district court did not abuse its discretion in permitting the amended petition to be filed.
There is another rule of this court which compels us to conclude that appellants’ contention cannot be sustained. It has been repeatedly held that when the original summons is served the defendants are in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken therein. (Kimball and others v. Connor, Starks and others, 3 Kan. 414; Curry v. Janicke, 48 Kan. 168, 29 Pac. 319; Jones v. Standiferd, 69 Kan. 513, 77 Pac. 271; Lawson v. Rush, 80 Kan. 262, 101 Pac. 1009; Shellabarger v. Sexsmith, 80 Kan. 530, 103 Pac. ,992; Long Bell Lumber Co. v. Johnson, 175 Kan. 112, 259 P. 2d 214.) Appellants as well as all other defendants were bound to take notice of the sustaining of the demurrer, and of plaintiffs motion to file the amended petition. Appellants’ motion to strike the amended petition was properly overruled.
Appellants further contend the district court erred in overruling their demurrer to plaintiff’s amended petition. Without detailing all the allegations of the amended petition, which are admitted by the demurrer, but giving to them all the reasonable inferences to which they are entitled, we conclude the amended petition states a cause of action, and the district court did not err in overruling the demurrer.
We shall now consider appeal No. 40,137. Appellants’ specification of error is that the district court erroneously overruled their demurrer to Knebler’s cross petition.
A short summary of the mechanic’s lien statement is as follows: That defendant Knebler under contract with appellants, furnished material and labor used in the construction of a dwelling house on specifically described real estate belonging to appellants to the extent of $23,748.51; that appellants paid to defendant Knebler upon account for labor and material performed and furnished the sum of $21,748.51, leaving a balance due and unpaid of $2,000, which defendant Knebler claims as a lien upon appellants’ real estate; that the total bid made by defendant Knebler for the construction of the dwelling house was $32,500, with extra labor and material in excess of said sum to be paid by the owners; that said bid included the cost of all lumber and material other than shown by invoices attached to the hen statement; that the cost of additional lumber and material used in the construction of said dwelling house was included by defendant Knebler only for the purpose of making his bid; and, that the contract for the purchase of additional lumber and material, other than evidenced by invoices attached to the lien statement totaling in the sum of $23,748.51, was made by appellants directly with The T. M. Deal Lumber Company and no claim was made by defendant Knebler for the cost of lumber and materials purchased by appellants from said lumber company.
Appellants urge that defendant Knebler’s cross petition is not framed upon a distinct and definite theory; that the cross-petition states an express contract and recovery is sought on an implied contract, and that such allegations result in a confusion of theories making the cross-petition subject to demurrer.
Inconsistent allegations do not make a petition demurrable. (Fetzer v. Williams, 80 Kan. 554, 103 Pac. 77; Trousdale v. Amerman, 124 Kan. 614, 261 Pac. 826; Stephens v. Farwell, 155 Kan. 491, 126 P. 2d 489.) We have consistently held that when the law gives several means of redress or relief predicated upon conflicting theories, the allegation of one of them operates as a bar against the subsequent adoption of the other. However, our decisions are just as consistent to the effect that the doctrine has no application where two or more existing remedies are consistent, and when that situation prevails a party may pursue one or all of them so long as he obtains but one satisfaction. (Waddell v. Blanchard, 171 Kan. 280, 232 P. 2d 467.) Moreover, appellants’ contention has been answered clearly by this court in the case of Darnell v. Haines, 119 Kan. 633, 240 Pac. 582, where this court said:
"This court is fully committed to the doctrine that a suit on an implied contract to pay the reasonable value of services rendered, does not deny existence of an express contract to pay a definite sum for the same service; that action on one theory is not incompatible with recovery on the other, notwithstanding the difference in proof and measure of recovery; that both theories may be tendered as grounds for recovery in the same action; and that, although there can be but one recovery, plaintiff may not be required to elect, but may go to the jury on both. (Berry v. Craig, 76 Kan. 345, 91 Pac. 913; Wiley v. Locke, 81 Kan 143, 105 Pac. 11; Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159; Brigham v. Carpenter, 110 Kan. 104, 202 Pac. 976.)” (p. 635.)
Under G. S. 60-1401 et seq., the primary basis for the establishment of a mechanic’s lien is a contract between the claimant and the owner of the realty. The contract may be written or oral, express or even implied, but only one recovery may be had for the labor performed or material furnished, or both. This is all the cross petition seeks.
The appellants recognized the legitimacy of defendant Knebler’s claim in the sum of $23,748.51 by paying $21,748.51, and it seems reasonable to assume they would not have paid such a large amount if the indebtedness did not exist. The lien statement defines exactly what material defendant Knebler furnished and what labor was performed, and sets forth the balance that is due him. We do not believe the cross petition is indefinite or inconsistent as to what is due and owing to defendant Knebler under the contract. The demurrer was properly overruled on this ground.
Appellants next maintain the cross petition of defendant Knebler fails to state any consideration. We do not believe the point is well taken. The cross petition alleged that labor and materials under a contract were furnished and used in the construction of appellants’ house; that appellants paid the sum of $21,748.51, leaving a balance due and unpaid of $2,000, and that the labor and materials were furnished and performed between September 10, 1953, and January 19, 1954, the date on which the work was completed. There is no lack of consideration. Appellants have received the benefit of a completed house, and defendant Knebler is entitled to enforce his lien for the unpaid balance. The district court was correct in overruling appellants’ demurrer on this ground.
Appellants further contend there were no allegations of performance set forth in the cross petition. We find no merit in this contention. The cross-petition alleged that all of the materials and labor described in the invoices attached to the mechanic’s lien statement were used in the construction of appellants’ house, and that the work was completed on January 19, 1954. This is a clear statement of performance, under the strict rule of the statute, and the district court did not err in overruling the demurrer on this ground.
We have thoroughly reviewed the record, including appellants’ reply brief filed in this court May 8, 1956, and conclude no error appears in the record. The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
These appeals are from cases consolidated for trial in the court below involving the granting of writs of habeas corpus in favor of petitioners, the natural parent in each case. In case No. 40,104 two minor children were delivered to their natural father, and in case No. 40,105 two other minor children were delivered to their natural mother. Respondents, W. D. Rhodes and Maude Carpenter Childrens Home, appeal. The two appeals have been consolidated in this court and will be considered as one.
The record disclosed there were two petitions filed in the district court of Sedgwick county on June 23, 1955. One sought the issuance of a writ of habeas corpus restoring to C. R. Hawes the custody of his son, Gary Eugene, fourteen years of age, and his daughter, Diana Marlene, twelve years of age. The other petition sought the issuance of a writ of habeas corpus restoring to Mary Nettie Hawes the custody" of her two sons, David Lee Brigman, seven years, and Duwaine Keith Brigman, twelve years. In each case appellants, the Maude Carpenter Children’s Home and W. D. Rhodes, as president and superintendent of that home, filed returns showing the nonprofit corporate existence of the home; that it was an organization to care for, maintain, and educate destitute and friendless children and was authorized by law to place such children for adoption. The returns showed that the home had custody of all four of these children by reason and authority of surrenders entered into by the natural parents of the children in question. The Brigman children entered the home on January 4, 1951, and the Hawes children entered on February 2,1951.
The surrenders were identical in the case of each child except that C. R. Hawes struck out the paragraph pertaining to the adoption of his two children. After identification of the parent and child with the date and place of its birth, each surrender contained terms to the effect that the parent surrendered the child to the cus tody of the home and promised not to interfere in any respect with the management of the child or to visit the child. The parent relinquished all right and claim to the child or to its services during minority in consideration of the benevolence manifested by the home and in consideration of the home, care, Christian training and education which may be provided by parents selected by the home. The parent further promised not to seek to deprive the home of the care or custody of the child or to ask any consideration for its services. He promised not to discover or molest the child or induce it to leave the home or family where it may be placed, or visit it without the home’s written consent and the consent of the family with whom the child may be placed. In the surrenders of the two Brigman children the mother authorized the home to secure legal adoption for the children by persons chosen by the home without further notice to her.
After a presentation of legal matters to the court, appellees were permitted to file replies to appellants’ returns which were similar and in addition to what has heretofore been mentioned and they further alleged that appellees denied entering into the respective surrenders; that the respective children and their parents, were hungry, that the home was recommended, and agreements for the children’s care were entered' into with appellant, W. D. Rhodes, with the understanding that when able the parents could contribute money to the home and receive the children back. Under pressure of the welfare of the children certain instruments were executed from which large portions had been stricken, but these instruments were not acknowledged by a notary public. Appellees further alleged that appellants had restrained the children of their liberty, had kept them under guard at all times, that they would not allow the parents to visit their children and attempted to eject the parents from church services which the children were attending under guard. Finally, appellees alleged that any such instruments had been rescinded on June 30, 1955, under notice by registered mail to appellants.
As already mentioned, the two cases were consolidated for trial by the district court, since the parents had met at the Maude Carpenter Children’s Home on occasions of visiting their respective children and had later become husband and wife. Opening statements were made by both parties and certain evidence was introduced, at the conclusion of which the trial court in granting the writs of habeas corpus found that the surrenders of the chil dren were consents for adoption which could be withdrawn. The trial court stated it relied solely on the rule in In re Thompson, 178 Kan. 127, 283 P. 2d 493, where the statement is found that “. . . the consent of [a mother] ... to the adoption of her child and not acted upon by the probate court might be withdrawn by her for any reason which to her appeared good.” (p. 135.)
A motion for new trial in each case was overruled by the trial court and this appeal followed.
The above legal premise was not well taken by the trial court because there is not only an entirely different set of facts and circumstances involved in this case but the statutory provisions are different from those applicable in the Thompson case. That case presented only a consent to adoption with no element of a benevolent home provided for by statute which is required thereby to care for children surrendered to and accepted by it. Here we have such a home involved and the present appeal must be considered in the light of that situation. It would be somewhat more difficult to distinguish between the Thompson case, supra, and the present case so far as the Brigman children alone are concerned if we were to go on the assumption that only an adoption element is involved, but other facts and circumstances surrounding the Brig-man children compel us to consider further. We mention this merely because of the trial court’s ruling and in addition because Mr. Hawes struck the paragraph referring to adoption from the surrenders of his two children while Mrs. Hawes did not so strike such paragraphs from the surrenders of her two children.
In addition to what has been said, appellants contend and the record bears them out, that no evidence was introduced on the trial, nor allowed to be introduced before the trial court, as to the present fitness of the parents to have the children or whether the best interests of the children and their welfare would be better served by returning the children to their parents. These matters deserve some consideration even though they may not be controlling because we are not unmindful that such matters are in the discretion of the trial court. However, here there was no evidence upon which such discretion could be based.
In conclusion, we think the Thompson case did not control in the case under consideration for the reasons shown and the trial court erred in concluding that it did so control as a matter of law.
The judgment is reversed and a new trial ordered.
Pbice, J., concurs in the result. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from a proceeding under the workmens compensation act to review an award previously made.
On February 19, 1954, Edgar T. Peterson died as the result of a compensable injury, and on May 21, 1954, his widow Ritta Adams Peterson and an attorney for the employer and its insurance carrier appeared before the workmen’s compensation commissioner and presented a joint petition and stipulation to obtain approval of and an award on the basis of 42% partial dependency of the widow and in the sum of $3,780 to be paid at the rate of $28 per week, the payments to be made in four-week intervals in the sum of $112 until fully paid.
On May 26, 1955, Ritta Adams Peterson, designating herself as widow and sole dependent of Edgar T. Peterson, petitioned the compensation commissioner for a review of the award for the assigned reason that the joint petition and stipulation stated that petitioner was partially dependent upon the deceased workman and that he contributed 42% to her support, and that at the time the joint petition and stipulation was filed, she was not represented by counsel and was not fully aware of the method of determining partial dependency; that the workman’s average annual earnings were approximately $4,673.18 as stipulated and that the petitioner’s average annual earnings were approximately $1,892 and therefore she was in fact approximately 71.18% dependent upon the deceased workman for her support; that the award as entered under the mistaken figure of 42% dependency was entirely inadequate and the matter should be reviewed and she so prayed. As the result of a hearing had on June 23, 1955, the compensation commissioner found that at the time the widow signed the joint petition and stipulation that she was approximately 42% dependent upon her husband, she did so because she was led to believe by representa lives of the employer and its insurance carrier that was all she could get; that the commissioner might modify the award if inadequate; that the entire wages the workman was making at the time of his death and for the two years preceding were paid for the support of himself, his wife and his son who was over 18 years of age; that it was clear from the evidence she was the only dependent and because she was earning some wages herself (found to be $1,495.30 for 1952 and $2,288.80 for 1953) she was a partial dependent, and applying by specific statement of the elements thereof the formula set forth in Kelly v. Lassen Hotel Co., 161 Kan. 444, 168 P. 2d 527, the commissioner made an order modifying the award of May 21, 1954, to the sum of $9,000 to be paid at the rate of $28 per week payable every four-week interval in the sum of $112 until fully paid, and further that the compensation due and owing to September 28, 1955, in the sum of $2,296 was ordered paid in one lump sum, less compensation theretofore paid. The employer and its insurance carrier appealed to the district court.
The appeal was heard in the district court on December 30, 1955. That court made findings of fact generally following those made by the compensation commissioner, among them being numbers 5, 7, 8 and 9 as follows:
“5. That the claimant kept her earnings from the J. C. Penney Company in the first National bank of Dodge City, Kansas, in her separate account and that only she could write checks on that account. That the Claimant used these earnings in any way that she cared to and included the following, to-wit: occasional auto payments on an auto jointly owned by herself and decedent, and for the purchase of a portion of her own clothes.”
“7. That at the time of the original hearing before the Examiner on May 21, 1954, the Claimant, Ritta Adams Peterson, signed a Joint Petition and Stipulation that she was approximately 42% dependent upon her husband, and she did this because she was led to believe by representatives of the Respondent and insurance carrier that that was all she could get as widow and dependent benefits under the Workmen’s Compensation Act of the State of Kansas.”
“8. That the original award granted by the Commissioner of Workmen’s Compensation to the Claimant is inadequate and that the Claimant and widow is the only dependent of the deceased, Edgar T. Peterson, and that this partial dependency should be calculated pursuant to the formula used in Kelly v. Lassen Hotel Company, 161 Kan. 444. That applying said formula to this case entitles the Claimant widow to the maximum benefits under the Workmen s Compensation Act of the State of Kansas, in the sum of $9,000.”
“9. That because of the inadequacy of the May 21, 1954, award, and the constructive fraud practiced upon the claimant by representatives of the Respondent and insurance carrier, the award made and entered into in favor of the Claimant, Ritta Adams Peterson, widow of Edgar T. Peterson, deceased, and against the Fairmont Foods Company and the insurance carrier, American Mutual Liability Insurance Company on May 21, 1954, in the amount of $3,780 is modified to the sum of $9,000 to be paid at the rate of $28 per week payable every four-week interval in the sum of $112 until paid in full. That the compensation now due and owing to the 30th day of December, 1955, in the sum of $2,660 is hereby ordered paid in one lump sum, less compensation heretofore paid. That the balance is ordered paid as hereinbefore set out.”
The judgment and award rendered were in accord. From the judgment and award the employer and the insurance carrier perfected their appeal to this court.
Before taking up the contentions of error we shall review the evidence briefly.
At the original hearing on May 21, 1954, facts as to employment, and the wages of the deceased workman were stipulated. Ritta Adams Peterson was examined as to her being the widow and that the workman contributed to her support; that she was employed, the amount of her earnings not being shown; that she signed the joint petition and stipulation and that it stated her husband’s average yearly earnings and she had agreed with the employer and its insurance carrier she would accept in full payment of her rights under the workmen’s compensation act 42% of the maximum amount she could get, which was $3,780; that she believed the agreement was a fair and adequate award under all the circumstances and was willing to proceed on that basis.
On the hearing of the petition for review and modification on June 23, 1955, Mrs. Peterson testified in detail as to the earnings of herself and her husband, and what was done with the same. She testified that Mr. Everett, the employer’s manager, had told her he wanted to see what she would get before she signed anything; that she was first offered $2,600 and he did not think that was right and called Mr. Shore (apparently of the insurance company) and that she was offered $3,780; that Everett called her and stated that amount was all she could get, there wouldn’t be any more; that she had no lawyer representing her; that the employer’s attorney said he was under the impression that was all she could get; that no one for the employer or company discouraged her from getting outside advice, but she was convinced that she couldn’t get any more.
The section of the workmen’s compensation act authorizing review, modification or cancellation of an award, for present purposes, reads:
“At any time before but not after the final payment has been made under or pursuant to any award . . . agreed upon by the parties, it may be reviewed by the commissioner upon good cause shown upon application of either party . . . and the commissioner shall hear all competent evidence offered and if he shall find that the award has been obtained by fraud or undue influence ... or that the award is excessive or inadequate . . . the commissioner may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations . . .” (G. S. 1949, 44-528.)
Appellants’ first contention is that the original award was not subject to review and modification. Directing attention to the above statute, appellants state that the review provision covers cases where the award is directed to the future condition of the claimant and not to findings of past facts (citing Gant v. Price, 135 Kan. 333, 10 P. 2d 1082, and Larrick v. Hercules Powder Co., 164 Kan. 328, 188 P. 2d 639), and argue that the question of dependency was determined on the basis of conditions existing on the date of the accident; that if the award, insofar as dependency is concerned, was not correct, the claimant’s remedy was by appeal; that subsequent changes cannot affect dependency and the issue of percentage cannot be reopened and redetermined under the review statute. We need not determine whether the above contention is sound for appellants recognize that an award based on a past fact may be reviewed and modified under the statute, if it was obtained by fraud, and they contend that the petition for review did not allege fraud; that the commissioner made no finding on tiie fraud question, and that in the district court the claimant changed her position and induced that court to find both inadequacy and fraud, and they then say that while they do not believe the question of fraud was properly raised, they are willing to meet the issue, and they then contend there is no evidence to support the finding of fraud, and directing attention to Gregg v. American Walnut Lbr. Co., 137 Kan. 201, 19 P. 2d 463, as holding that where a claimant relies upon fraud he has the burden of proof on all elements, and failure on any element compels denial of relief, they argue that since an award has the force and effect of a judgment (Larrick v. Hercules Powder Co., supra), the law of fraudulently procured judgments obtains and is controlling, and that in such case the fraud must be extrinsic or collateral to the matter involved; that the district court found “constructive fraud” was practiced upon the claimant and that such a finding does not support the judgment, and our attention is directed to Wagner v. Beadle, 82 Kan. 468, 108 Pac. 859, holding that the fraud for which a judgment may be set aside must be actual fraud, and to Laithe v. McDonald, 7 Kan. 254, that the word fraud as used in a statute permitting relief from a judgment obtained by fraud means fraud in fact and not fraud in law.
There is no need here to review our numerous authorities holding that the provisions of the workmen’s compensation act are to be liberally construed in favor of the claimant, and, where not expressly limited by the provisions of the act, all notices, petitions and applications are to be given a liberal and not illiberal construction. It is a fact that the petition for review did not include the word fraud, nor expressly charge fraud but the content of the application that review be had upon the joint petition and stipulation for the reason that at the time the award was entered the petitioner was not represented by counsel and was not aware of the method of determining partial dependency, infers that appellants were aware that claimant’s rights were not being fully explored and determined and the fact that the commissioner, although finding petitioner had been misled by representatives of the respondents, did not expressly base his modification of the award on the ground of fraud is of little moment here. On appeal the district court, by its finding number 7, found that the claimant signed the joint petition and stipulation because she was led to believe by representatives of the employer and of the insurance company that compensation on the basis of 42% dependency was all she could get. The use of the word “constructive” as an adjective modifying fraud, as contained in finding 9, was inept for the fraud found in finding 7 was fraud in fact and not constructive fraud. If the fraud found was extrinsic, it warranted the relief granted. We have no difficulty in concluding that the acts of the employer and the insurance company in leading the claimant to believe she could recover only to the extent of 42% dependency were of such nature as prevented a fair submission of the controversy to the compensation commissioner and under our decisions was extrinsic fraud. See, e. g., Cunningham v. Cunningham, 178 Kan. 97, 283 P. 2d 405; Lowry v. Lowry, 174 Kan. 526, 256 P. 2d 869; Prideaux v. Prideaux, 169 Kan. 644, 220 P. 2d 538, and cases cited therein.
Appellants’ contention the original award was not subject to review and modification cannot be sustained.
Appellants’ second contention is that the amount of the modified award was erroneously computed by the district court. Directing attention to Proffit v. Aldridge, 154 Kan. 468, 119 P. 2d 523, and cases cited, as holding that dependency is not total as to one who has substantial support other than from the workman, appellants argue, in effect, that under the award made, the appellee was given the same amount as though she were wholly dependent. Other arguments presented by the appellants will not be discussed for the following reasons.
The record discloses that when the petition for review came on for hearing before the examiner for the commissioner, appellee’s counsel stated that in her petition she had alleged she was approximately 71.18 percent dependent, but that on going into the matter more fully, it was felt the question of dependency was for the examiner to determine and petitioner was prepared to and would introduce evidence to the effect she was wholly dependent upon the decedent at the time of his death. We need not review the testimony leading to the award made by the examiner and approved by the commissioner for, as stated above, appeal was taken to the district court. That court, upon review of the record, found the average annual wage of the workman to be $4,673.18, all of which was deposited in a named bank in a joint account and used to pay all of the bills and utilities and also “all of the normal family expenses”; it also found that the wife was employed, the amount of wages she received; that she kept her earnings in her separate account on which only she could draw checks, and that she made occasional payments on an automobile owned jointly by herself and husband, and for the purchase of a portion of her own clothes, but she did not use her own earnings for groceries, utility bills or the payment of general family obligations and support. The amounts expended by her for automobile payments and for clothes are not stated in the findings. In making the award appealed from the examiner for the commissioner set forth specifically the formula stated in Kelly v. Lassen Hotel Co., supra, but in stating the average annual contributions no allowance was made for any amounts contributed by the wife for her own support. The journal entry of judgment on appeal discloses the district court found that the award of the commissioner should be approved but the only reference in its findings as to the application of the formula is that found in its finding number 8 quoted above. We can interpret that finding only as one that the widow is partially dependent and that such dependency should be calculated pursuant to the above mentioned formula. Obviously that was not done for the award made was as though the dependency was total. It is apparent no account was taken of the wife’s contributions to her own support.
We are not triers of the fact and are in no position to and will not attempt to determine the amounts paid by the widow for automobile costs or for her own clothing, nor whether the total thereof represents substantial support other than from her deceased husband.
The statutory provisions fixing amounts of compensation, in effect at the time of the death and applicable here, provided for a maximum of $9,000 if the dependency, of the widow in this case, was total. If that be true, the formula in Kelly v. Lassen Hotel Co., supra, had no application. But if it were not true, then the amounts for automobile and clothing costs had to be considered in determining percentage of dependency, and only that percentage of $9,000 could be awarded. [See G. S. 1953 Supp., 44-510 (2).]
The record presents a situation where we have concluded to remand the cause to the district court to make a specific determination as to whether the appellee was totally dependent for support upon her husband at the date of his fatal injuries, or, if she were partially dependent, to determine the specific amount she contributed to her own support and to find the percentage of her dependency, and to make an award consonant with total dependency or partial dependency, as the issue may be determined by it.
The ruling of the district court that the original award was subject to review is affirmed. Insofar as its ruling and judgment as to the amount of the award is concerned, the cause is remanded to the district court for further proceedings in accord herewith.
Smith, C. J.: not participating. | [
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The opinion of the court was delivered by
Price, J.:
This is an action by some of the heirs-at-law of one Jasper McCrary, deceased, to partition land in Hamilton County owned by him at the time of his death, intestate, in 1918. The principal issue revolves around an alleged oral family settlement following his death, which, if upheld, requires that the land be partitioned in accordance with the allegations of the petition, and which was decreed by the trial court.
Because of the nature of the case it is considered unnecessary to detail the pleadings. In brief, it may be said the petition alleges the interests of the respective parties to be on the basis of a family settlement entered into by the widow and five children of Jasper shortly after his death. Under this theory the interests of all parties would be figured on the basis of one-sixth each, and the defendant, W. D. McCrary, would be entitled to a two-sixths interest by virtue of having, in the meantime, received a deed from his mother to her interest in the land in question.
In .brief, the answer denies the making of the family settlement, and alleges that the property should be partitioned in accordance with the law of intestate succession, which means that the children, other than defendant W. D. McCrary, would be entitled to share on the basis of an undivided one-tenth interest each, and that he, by virtue of the deed from his mother conveying her alleged one-half interest, would thus be entitled to a six-tenths interest in the property.
. As stated, the trial court found that the.alleged family settlement; had been made, that it was fair and equitable, and ordered partition of the land on that basis. Defendant and his wife have appealed.
The trial court made findings of fact and conclusions of law. Very briefly stated, they are to the effect that shortly after decedent’s death his widow and children entered into an oral agreement whereby the widow was to have for herself the Missouri homestead where she and deceased had lived, and as consideration for such she agreed to accept only a child’s share in all other property, including the Hamilton County land in question; that through a long period of years Ira R. McCrary, one of the plaintiffs, acting under a power of attorney from the other heirs, had been in charge of the property and accounted to the other owners on the basis of an undivided one-sixth interest each, and that each had accepted such one-sixth share of rentals and other income without question.
The conclusions of law were in harmony with these findings, and partition was decreed accordingly.
In passing, it is noted that defendants filed no motions to set aside or modify any findings of the trial court, and neither do they specify as error the overruling of their motion for a new trial.
In this court defendants make two contentions.
The first is that there is no substantial competent evidence to establish that a valid family settlement agreement was ever entered into, or that such alleged agreement could be construed as fair and equitable.
Conceding, solely for the sake of argument, that under this record the question is properly before us, there is no doubt but that this contention may not be sustained. No good purpose would be served by reviewing at length the evidence, both oral and documentary, which the court had before it. Our duty is not to weigh evidence but rather is to examine it to ascertain if it supports the findings. We have examined the record and have no hesitancy in concluding that the trial court’s findings are based upon substantial competent evidence.
Defendants’ other contention is that the decree of descent of the probate court of Hamilton County, in 1945, was a final order determinative of the rights of the parties, and that the district court had no jurisdiction to alter it in the instant partition action.
In this connection, it should be stated that in 1945, in a proceeding brought to determine descent under the provisions of G. S. 1949, 59-2250 and 2251, the probate court of Hamilton County entered a decree to the effect that at the time of his death, intestate, decedent was survived by his widow and five children as his heirs-at-law, and the property in question was assigned to them in accordance with the law of descent and distribution.
Defendants argue this decree is res judicata and binding insofar as the respective shares of the heirs are concerned in the partition action.
Defendants are in error in so contending for at least two reasons. In the first place, the decree of descent merely determined the question of heirship at the time of decedent’s death, and in no way affected any rights of the parties acquired subsequent to his death. The shares claimed by plaintiffs in the instant partition action are based upon a family settlement entered into subsequent to decedent’s death. In the second place, the extent and effect of the decree of descent was not to determine controverted issues of title to or ownership of property belonging to the decedent. Its function was to declare only the title which accrued under the law of intestate succession. (See Zaloudek v. Zaloudek, 171 Kan. 72, 74, 229 P. 2d 727.)
And, finally, it is contended that in their partition action plaintiffs seek to receive from the estate more than their distributive shares under the law of intestate succession, and therefore their action amounts to a “claim” against the estate over which the probate court, rather than the district court, would have jurisdiction.
A short answer to this contention is that in no sense of the word can it be said the judgment sought in the partition action amounts to a “claim” against decedent’s estate. It is merely an assertion of rights growing out of an alleged family settlement and agreement entered into subsequently, and which the court by its findings upheld.
A careful examination of the record before us discloses no error, and the judgment is therefore affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an action by a receiver seeking recovery on two statutory appeal bonds executed by the appellant, as surety, pursuant to G. S. 1949, 60-1209, for loss sustained to the receivership estate during the pendency of an appeal to this court from an order appointing the receiver, which was later dismissed.
At the outset, our jurisdiction to hear this appeal is challenged. Appellee filed a motion to dismiss this appeal by reason of appellant’s failure to set forth in his abstract any specifications of error whatsoever. The contention cannot be ignored. Rule No. 5 of this court (see 174 Kan. XI; G. S. 1949, 60-3826, “Rules of the supreme court” No. 5) long in force and effect, among other things, provides:
“. . . The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered. . . .”
The rule has been printed repeatedly in various volumes of the Kansas reports. Its purpose is designed to promote definiteness, fairness and orderly procedure of litigation on appellate review. It was intended to be of benefit to both the Bench and Bar alike. Specifically, its purpose is to advise both appellee and this court concerning error, or errors, which the appellant claims the trial court committed in rendering its judgment.
Manifestly, this court cannot review error which is claimed was committed, if none is specified. Error is never presumed (Quivira., Inc. v. Quivira Co., Inc., 173 Kan. 339, 245 P. 2d 972; Elliott v. P. H. Albright Farm Loan Co., 129 Kan. 280, 282 Pac. 749), and it is the duty of the party complaining to indicate wherein it was committed. (Fakes v. Osborne, 165 Kan. 176, 193 P. 2d 218.) All that the abstract of the instant appeal contains is a motion for a new trial and a notice that appellant appeals from the judgment rendered against him. A motion for a new trial or a notice of appeal does not constitute a specification of error within the meaning and purport of Rule No. 5. (Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377.)
Here, there was utter failure by appellant to set forth in his abstract a specification of the errors complained of. When a party’s right to be heard on appeal is challenged on the grounds of noncompliance with Rule No. 5 of this court, and it appears from the record he has made no attempt to comply with it, his appéal will be dismissed. (See Lambeth v. Bogart, supra; Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919; Hall v. Eells, 157 Kan. 551, 142 P. 2d 703; Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463; Topping v. Tuckel, 159 Kan. 387, 155 P. 2d 427; and, Gilley v. Gilley, 176 Kan. 61, 268 P. 2d 938.)
It is ordered that this appeal be dismissed. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from the trial court’s order overruling motions to dismiss, a motion to strike, and demurrers filed by the different appellants attacking appellee’s application under G. S. 1949, 66-118c, for a review of an order made by the state corporation commission involving freight rates and service of appellant motor common carriers.
The first question raised by appellee challenges the right of appellants to be heard and this must be determined at the outset.
The law controlling this matter is G. S. 1949, 66-118c, pertinent parts of which state:
“. . . the applicant may apply to the district court . . . for a review of such order or decision . . . The application for review shall be filed in the office of the clerk of the district court . . . and shall specifically state the grounds for review upon which the applicant relies and shall designate the order or decision sought to be reviewed. The clerk of the district court shall immediately serve a certified copy ... to the secretary of the state corporation commission at his office at the state capítol. The secretary shall immediately notify all parties who appeared in the proceedings before the commission, by registered mail, that such application for review has been filed.”
We next turn to G. S. 1949, 66-118d which, after providing what the secretary of the commission shall do and what the parties may do regarding a transcript of the proceedings and filing thereof with the clerk of the district court, contains the following pertinent provisions:
“Said proceedings for review shall be for the purpose of having the lawfulness or reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined, and the district court . . . shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable . . . The procedure . . . in the district court and upon appeal to the supreme court . . shall be the same as in other civil actions, except as herein provided.”
Without going into an elaborate and detailed discussion, we think it is clear that an application for review of an order of the corporation commission does not have all the elements of a petition as prescribed by G. S. 1949, 60-704, which reads in part:
“The petition must contain:
“First. The name of the court and the county . . . and the names of . . . plaintiff and defendant, followed by the word ‘petition.’
“Second. A statement of the facts constituting the cause of action. . . .
“Third. A demand of the relief to which the party supposes himself entitled.
but without determining whether it is a petition, or is tantamount to a petition, we believe such an application more resembles a notice of appeal as is shown by G. S. 1949, 60-3306 and 60-3308. We conclude the application under consideration here, which we have carefully examined, cannot be a petition within the purview of the statutes above quoted.
Since the application was not a petition then a demurrer was not a proper test of the sufficiency of the application for review of the order made in this case by the corporation commission and, therefore, the demurrer could be nothing more than a motion to dismiss, quash, or strike. (G. S. 1949, 60-703.)
Trial court orders overruling motions to dismiss, quash, or strike have been consistently held not to be appealable orders under G. S. 1949, 60-3302 and 60-3303 and as a result appeals in such cases have been dismissed. (City of McPherson v. Smrha, 179 Kan. 59, 293 P. 2d 239.)
Appellants rely on Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010, but that case is not applicable here because it was an action in the district court wherein a petition had been filed to enforce a trust relating to land. A demurrer was a proper pleading under such circumstances.
For a more complete and helpful discussion of the statutes relating to orders of the corporation commission and the procedure in the district court on appeal, see City of McPherson v. State Corporation Commission, 174 Kan. 407, 257 P. 2d 123.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an original proceedings for a writ of habeas corpus filed by petitioner, Charles C. May, wherein he challenged the legality of his detention in the state penitentiary at Lansing.
Facts gleaned from the record show that petitioner was sentenced by the district court of Reno county to a term of from one to ten years for the crime of second degree forgery. He began serving the sentence in July, 1947. He escaped from the penitentiary at Lansing in August, 1947, but was recaptured and returned in November, 1947.
Petitioner claims that he was told that all his good behavior time had been forfeited; he states that the only good time that can be forfeited is that which has been earned by the inmate; that good time is not given to an inmate in a total sum when he first enters prison; that an inmate can have no future good time forfeited because he has not yet earned it; he complains that the respondent warden does not have, nor did his predecessor have, the right to forfeit the good time of petitioner under the statutes of Kansas.
Respondent filed his answer, which we do not deem necessary to set out in full because the record, as we will hereafter discuss it, reflects the allegations thereof.
The record shows that on June 23, 1947, petitioner was charged in an information with the commission of the crime of forgery to which charge petitioner pleaded guilty on July 8, 1947, and was sentenced to the state penitentiary at Lansing for a term of from one to ten years. Petitioner was admitted to the penitentiary on July 11, 1947, and escaped therefrom on August 14, 1947. On the order for arrest it was noted that petitioner owed seven years, eleven months, and twenty-seven days’ time. The date of his return to the penitentiary, as already mentioned, was in November, 1947.
After petitioner had served four years and six months of solid time, he was paroled from confinement on April 3, 1951, but not from legal custody of the warden, subject to the usual conditions of a parole contract which contract was accepted and signed by petitioner on April 22, 1951, following approval of the parole by the governor of the state on April 16, 1951. The violation clause of the parole contract was as follows:
“The violation of any of the above rules or the violation of the law in any way, will constitute violation of the parole contract and the parolee may be declared delinquent and treated as an escaped prisoner owing time to the State of Kansas. At such time as he may be returned to the penitentiary he may be required to serve the remainder of his maximum term and no part of the time which may elapse from the date of his delinquency to the date of his return to Kansas State Penitentiary shall apply to his maximum term.”
Petitioner became delinquent January 8, 1952, by failure to report monthly and for leaving his place of residence and employment without permission. The record clerk reported this to the board of administration (now the board of penal institutions [G. S. 1955 Supp. 75-3751] hereinafter referred to as the penal board) and stated further that petitioner’s whereabouts were unknown and that he owed three years and ten months’ time. Upon this report the penal board ordered that a warden’s warrant be issued ordering that petitioner be returned to serve out his unexpired term. The warrant so issued provided that petitioner owed three years and ten months’ time.
Petitioner was charged with larceny of a motor vehicle in the district court of Reno county on September 26, 1947. He pleaded guilty and was sentenced to a term of from five to fifteen years in the state pentitentiary. While a bench parole did not appear of record, there was a journal entry set out in the record wherein it was recited that on June 13, 1952, there was a motion for revocation of petitioner’s parole which had been granted on April 24, 1952. Petitioner was therein referred to as Charles May, Jr., his parole was revoked, and he was ordered upon completion of his term in the United States penitentiary at Leavenworth, to be removed to the state penitentiary at Lansing to serve the sentence of from five to fifteen years for larceny of an automobile.
The following is a statement of petitioner’s time as shown by the records of the clerk of the state penitentiary:
“In accordance with the order of the Board of Administration, now known as the Board of Penal Institutions, subject forfeited 365 days Institutional Good Time for escaping. Since he did not have this much Institutional Good Time to his credit, at the time of his escape, he had to make up this good time at the rate of 8 days per month, which is what the Board allows the inmates each month provided they maintain a clear record during that time.
“Subject was paroled 4-22-51, delinquent 1-8-52, returned with a new commitment 8-29-54. He was gone 2 months and 25 days on escape, and he was delinquent 2 years, 7 months and 21 days. This time he must make up, as it is dead time.
“Subject started earning Institutional Good Time in September 1955, during which month he was credited with 3 days, and is now earning Institutional Good Time at the rate of 8 days per month the same as the other inmates. His Statutory Good Time was not affected by his escape, and he has received full credit for all the Statutory Time allowed by law on his sentence.
“Up to and including November 1957, he will have received a total of 211 days Institutional Good Time, which, when deducted from his Statutory Maximum of 6-29-58 brings his discharge date to 11-29-57, less 10 days Governor’s Time which brings his net discharge date of 11-29-57 to 11-19-57, at which time he will be rebooked on his new commitment.”
Petitioner then filed what he termed a “Motion to Hear,” which upon reading appears to be either a reply to the answer of respondent or a supplement to his original petition for the writ. It adds nothing to the record not covered by his original papers filed in this matter. The questions involved are that (1) the warden of the state penitentiary could not take away all of petitioner’s good time when he was returned to the penitentiary after his escape from prison; and (2) petitioner has not been given proper credit for his good behavior time while serving his sentence.
G. S. 1949, 76-2421 in substance provides that the warden shall cause a record to be kept of each convict’s infractions of rules, which record is to be submitted monthly to the penal board. If no infraction is shown, such convict shall be entitled to a deduction of three days per month during the first year, or fraction thereof, for each month; to a deduction of six days per month during the second year; and after two years to a deduction of eight days per month until expiration of his sentence. If the convict is entitled to deductions and later violates the rules, then the board has the power to deprive him of such deductions. The board shall direct the convict to be discharged when he has served out his sentence less deductions.
An additional statute,. G. S. 1949, 76-2451, provides that the penal board may grant additional good time for meritorious services, working at hazardous tasks, working extra time or giving valuable information to prison officials. This additional good time shall not reduce minimum or maximum sentences to less than two thirds of the time fixed by statute, or the sentence of the court, and shall be in addition to other good time allowances.
At the outset it should be noted that petitioner did not inform this court of all the facts and circumstances surrounding his violations of various laws and the numbers thereof, and that respondent has filled in these omissions. We realize that petitioner is not an attorney, and we will give him any and all benefits to which he is entitled regardless of whether he or respondent supplied us with the necessary information.
The statutes governing good time as earned by a convict in the state penitentiary are definite and clear. Computation of time thereunder was well explained in the case of In re Kness, 58 Kan. 705, 50 Pac. 939, and the rule there stated was:
“The good time earned by convicts ... is computed for and at the end of each calendar month; and when the time of actual service together with the good time earned equals the time of sentence, the convict is entitled to a discharge.” (Syl.)
Petitioner complains that he was deprived of good time in violation of statutes, but we cannot find any support for such a contention either under the constitution or the statutes. The penal board has the power to examine and inquire into all matters connected with the government, discipline and police of the penitentiary, and the punishment of the prisoners confined therein. (G. S. 1949, 76-2404.) The warden has power to make and issue such general and special orders and rules not inconsistent with law and the rules of the penal board as he may deem necessary for the government of and the enforcement of discipline in the penitentiary. (G. S. 1949, 76-2410.)
The manner in which petitioner s time has been computed is well set out in the statement of time already quoted herein. This record is attacked by petitioner on what amounts to merely his own conclusions. This court has many times said that such an attack is not sufficient to entitle a convict to a writ of habeas corpus, which would result in his release from the penitentiary. A petitioner s unsupported and uncorroborated statements are not sufficient to satisfy the burden of proof which is that the prisoner must establish by legal grounds that he is entitled to the writ. This rule has been repeated often in our reports. A few of the many cases are Pyle v. Hudspeth, 166 Kan. 62, 199 P. 2d 469; White v. Hudspeth, 166 Kan. 63, 199 P. 2d 518; Weaver v. Hudspeth, 166 Kan. 66, 199 P. 2d 472; Miller v. Hudspeth, 166 Kan. 68, 199 P. 2d 170; Skelton v. Hudspeth, 166 Kan. 70, 199 P. 2d 470; Rice v. Hudspeth, 166 Kan. 662, 203 P. 2d 169; Slater v. Hudspeth, 167 Kan. 111, 204 P. 2d 698; Hayes v. Hudspeth, 169 Kan. 248, 217 P. 2d 904; Engling v. Edmondson, 175 Kan. 883, 267 P. 2d 487.
In addition to this, the record shows that petitioner has another sentence to serve for the commission of the crime of larceny of an automobile, which sentence must be served after he has completed his sentence for forgery. This circumstance would preclude his being entitled to a writ of habeas corpus at this time. This is a familiar rule of law and is stated in Craven v. Hudspeth, 172 Kan. 731, 242 P. 2d 823; Current v. Hudspeth, 173 Kan. 694, 250 P. 2d 798.
Petitioner has failed to justify the issuance of a writ of habeas corpus and the writ, therefore, is denied. | [
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The opinion of the court was delivered by
Price, J.:
This was a mandamus action brought by the state on the relation of the county attorney of Cherokee County against the county clerk, and arose out of a controversy between the boards of education of the cities of Weir and Scammon. Other public officials, in their official capacities, were made parties to the action as it progressed, but the appeal from the judgment ultimately rendered has been taken only by the board of education of the city of Scammon (hereinafter referred to as Scammon).
Due to the disposition of the case made by the trial court and the nature of the questions involved, we deem it unnecessary to set forth the allegations of the pleadings, and it is sufficient to state that the controversy between the two boards of education concerned the detachment of certain territory from one school district and its attachment to the other.
From the record it appears that during the course of this litigation various negotiations and attempts to settle the controversy were had by all parties thereto, including the school boards, and on October 14, 1954, the court continued the matter until a later date. On March 1, 1955, the matter came on for further hearing, and on that date a judgment was rendered pursuant to an agreement of the parties with respect to the allocation of the lands in dispute. It is from this judgment that Scammon has appealed.
In general, it may be said that the specifications of error are that the trial court erred in failing to rule upon the motion to quash the alternative writ of mandamus; in sustaining the motion of the board of education of Weir for entry of judgment as per the agreement; in entering judgment in favor of the board of education of Weir in that there is no law upon which to base the judgment; in finding that Scammon entered into an agreement to transfer certain territories, and in holding that Scammon was a party to the action.
In passing, it is noted that Scammon, the only appellant, filed no post-trial motions of any kind, including a motion for a new trial.
With respect to alleged error in failing to rule upon the motion to quash, it is obvious that if the judgment which was rendered pursuant to the agreement of the parties is to stand, a ruling on that motion would have been superfluous.
Concerning the contention that Scammon was never a party to the action, it is sufficient to say that such fact is simply not sustained by the record. Perhaps it is correct to say that according to its theory of what transpired Scammon was “in and out” of the lawsuit, but the journal entry of judgment specifically states that it was a party and represented by counsel who now represent it in this appeal. In fact, the judgment ultimately rendered included an amendment so as to conform to a motion presented by Scammon through its counsel.
With respect to the contention that Scammon did not enter into an agreement to transfer certain territories from its district, we are faced with the unqualified finding by the trial court to the effect that on October 14, 1954, the parties, including Scammon, did enter into a valid and binding agreement concerning the matters in dispute. If the propriety of this finding depends upon controverted issues of fact, the filing of a motion for a new trial was a condition precedent to a review of those facts, and, as previously stated, no such motion was filed. (Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553.)
The remaining two alleged errors concern the entry of judgment.
The journal entry of judgment was signed and approved by the court, by the county attorney, by counsel for the Weir school board, by counsel for the county superintendent, and in behalf of the county clerk by one of the attorneys now representing Scammon in this appeal. It was not signed and approved by counsel for Scammon, as such. The record is silent concerning whether resort was had to the provisions of G. S. 1949, 60-3827 (rule No. 49), with respect to the form and contents of the journal entry of judgment. On the other hand, Scammon s chief complaint is not that the journal entry does not recite correctly the judgment of the court, but rather is that the judgment rendered is erroneous.
It is well established that a presumption of validity attaches to a judgment of a district court until the contrary is shown, and that before this court will set aside a judgment it must affirmatively be made to appear by an appellant that the judgment is erroneous. Absent such affirmative showing, this court has no alternative than to affirm. (State, ex rel., v. Rural High School District No. 3, 169 Kan. 671, 220 P. 2d 154; Gillen v. Stangle, 175 Kan. 364 (Syl. 3), 264 P. 2d 1079.) A careful review of the record before us establishes that the trial court specifically found that an agreement was entered into by the parties at a time when they were competent to do so, that judgment was rendered accordingly, and we are aware of nothing which would justify a reversal of that judgment. Further discussion of the various contentions made would add nothing to the body of our law on the subject.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action by a divorced wife against her former husband to vacate and set aside a property division made in the divorce action on the ground of fraud.
The appeal is from an order sustaining a demurrer to the petition. The basic question is concerned with whether the fraud pleaded is intrinsic or extrinsic, and whether it affords grounds to vacate or modify the judgment within the meaning of the statute, G. S. 1949, 60-3007, Fourth.
On February 23, 1953, plaintiff (who also was plaintiff in the divorce action) was granted a divorce. She appealed from that part of the decree pertaining to the division of property. Defendant did not appeal. The judgment was affirmed by this court in Mathey v. Mathey, 175 Kan. 446, 264 P. 2d 1058. Feeling aggrieved by our decision, plaintiff filed a motion for rehearing. After studious consideration of all points raised, a rehearing was denied in Mathey v. Mathey, 175 Kan. 733, 267 P. 2d 516.
On February 18, 1955, within the two-year period provided by G. S. 1949, 60-3008, plaintiff filed the instant action under G. S. 1949, 60-3007, Fourth, which reads:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order.”
Omitting formal parts, the petition alleges:
“II.
“That plaintiff and defendant herein were divorced by decree of this court in action No. 11,377, Geary County, Kansas, on February 23, 1953, and their respective property rights therein settled at said time and place by said decree, based on the evidence received by the court in said action on the parties property then owned.
“Ill
“Under the provisions of the General Statutes of Kansas, 1949, Section 60-3007, plaintiff herein petitions the court to vacate and modify the said decree of February 23, 1953, insofar as it affected or affects the property rights of the parties, for fraud, practiced by defendant in obtaining the decree.
“IV.
“That said defendant committed fraud on the court and plaintiff in said above numbered action 11,377 in the District Court of Geary County, Kansas, in testifying under oath, at the trial of said cause, that he did not possess any stocks or bonds, only Ten Dollars ($10.00) in the bank and Fifty-One Dollars ($51.00) in cash; that he fraudulently failed to disclose and reveal to the court in his testimony, at said time and place, the complete and total assets in personal property of defendant, or joint personal property controlled by defendant, consisting of Bank Stock of the Central National Bank of Junction City, ■ Kansas; Government Bonds; cash in defendant’s personal checking account; cash in two joint checking accounts, ‘regular’ and ‘special’; cash in a joint savings account; and cash in the joint safety deposit box, all located in said Central National Bank of Junction City, Kansas and cash deposited in a postal savings account at the United States Postoffice of Junction City, Kansas, all amounting to a total in excess of Thirty Thousand Dollars ($30,000.00).
“V.
“That said above described action on the part of defendant was a planned scheme of deceit and concealment practiced by said defendant to mislead the court and defraud the plaintiff therein, who did not make discovery thereof until the month of July, 1954, and that by said fraudulent testimony and acts, defendant mislead the court in the adjudication and decree of the property rights of the parties, to plaintiff’s damage and detriment in the sum of Fifteen Thousand Dollars ($15,000.00), or such amount of monies and properties as to the court constitute an equitable and just division of property between the parties.”
The prayer is that the property division portion of the divorce decree be vacated and set aside; that the fraudulently undisclosed personal property be determined, and that the court make a fair and equitable division thereof between the parties.
Defendant filed a demurrer to this petition on the ground it does not state facts sufficient to constitute a cause of action for the reason that:
“The allegations of fraud, if any, are intrinsic and do not authorize or justify the court in vacating and setting aside this decree heretofore rendered herein on the 23rd day of February, 1953.”
The demurrer was sustained on the ground mentioned, and plaintiff has appealed.
The statute (G. S. 1949, 60-3007, Fourth) under which this action was brought does not distinguish between intrinsic and extrinsic fraud. It has been held many times, however, that the fraud relied on must be extrinsic as distinguished from intrinsic, and that the fraud which will authorize a court to vacate a judgment in an action brought for that purpose must be extrinsic or collateral to the matter involved in the former action and sufficient to justify the conclusion that but for such fraud the result would have been different. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079, 25 L. R. A. (N. S.) 1237; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Putnam v. Putnam, 126 Kan. 479, 268 Pac. 797; Stafford v. Stafford, 163 Kan. 162, 181 P. 2d 491, and Lowry v. Lowry, 174 Kan. 526, 256 P. 2d 869.) See also 49 C. J. S., Judgments, §372, b, (2), p. 738, where it is said that, generally speaking, equitable relief against a judgment may be granted for extrinsic fraud but not for intrinsic fraud, and that the fraud which will afford ground for equitable relief must be extrinsic, extraneous or collateral to the matters or issues tried in the action in which the judgment was rendered, and that relief on the ground of fraud cannot be predicated on matters or issues which actually were or which with due diligence could have been presented and adjudicated in the original proceedings.
For a still further discussion of the subject reference is made to the lengthy annotation found at 88 A. L. R. 1201.
This necessarily leads to a discussion of what is meant by intrinsic and extrinsic fraud.
In the Plaster Co. case, supra, it was said:
“By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promises of a compromise or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such a case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation, and where a party has his day in court and knows what the issues are he must be prepared to meet and expose perjury then and there. (Pico v. Cohn, 91 Cal. 129.) Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judg ment, unless there be a showing that the juridiction of the court has been imposed upon or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial.” (p. 735.)
In Potts v. West, 124 Kan. 815, 817, 262 Pac. 569, it was held that extrinsic fraud is fraud which prevents a fair presentation of the controversy to the court, and that intrinsic fraud is fraud which relates to a fair determination of the controversy by the court.
In the Putnam case, supra, it was said that by extrinsic fraud is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy, and that fraud is intrinsic and included in the judgment where it relates to questions that were in conflict and which were necessary for the court to determine.
In Eaton v. Koontz, 138 Kan. 267, 272, 25 P. 2d 351, it was said that extrinsic fraud consists in preventing fair presentation of issues, and that intrinsic fraud relates to fair determination of issues.
In the Stafford case, supra, acts by defendant which caused plaintiff not to be in court at the time of a divorce hearing were held to constitute extrinsic fraud — that is, they prevented a fair presentation of issues to the court.
In the Lowry case, supra, it was held that concealment of the fact a decree of divorce between the parties had been entered in another state amounted to extrinsic fraud because but for such concealment the Kansas court would have been aware that it was without jurisdiction of the subject matter.
In Cunningham v. Cunningham, 178 Kan. 97, 283 P. 2d 405, it was held that the fraud practiced, being of such a nature, and being calculated to prevent defendant from appearing in court and contesting the original action even though she had proper pleadings on file, constituted extrinsic fraud.
See also Shuckrow v. Maloney, 148 Kan. 403, 409, 83 P. 2d 118, and Prideaux v. Prideaux, 169 Kan. 644, 649, 650, 220 P. 2d 538, for further discussion of the subject.
In 23 Am. Jur., Fraud and Deceit, § 5, p. 757, appears the following statement:
“As applied to fraud, the term ‘intrinsic’ usually means that fraud was practiced in procuring the transaction, as distinguished from extrinsic fraud, which means that fraud was practiced in the act of obtaining a judgment in the course of litigation involving a transaction. The latter is actual fraud, but collateral to the transaction in litigation.”
31 Am. Jur., Judgments, § 654, p. 230, defines the terms as follows:
“The acts for which a court of equity will, on account of fraud, grant relief from a judgment have relation to extrinsic or collateral fraud; intrinsic fraud is not sufficient for equitable relief. Fraud has been regarded as intrinsic, within the meaning of this rule, where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were, or could have been, litigated therein. Accordingly, fraud cannot properly be said to be extrinsic, so as to warrant relief from a judgment based thereon, where the court rendering the judgment had before it the same issue of fraud on the same essential facts. On the other hand, fraud has been regarded as extrinsic or collateral, within the meaning of the rule here under consideration, where it is one the effect of which prevents a party from having a trial or;. from presenting all of his case to the court, or where it operates upon matters pertaining, not to the judgment itself, but to the manner in which it is procured, so that there is not a fair submission of the controversy. Fraud which induces an adversary to withdraw his defense, or prevents him from presenting an available defense or cause of-action in the action in which the judgment is obtained, has been regarded as a proper ground for equitable relief against the judgment.”
. Generally speaking, the giving of false testimony, that is, perjury, standing alone and unaccompanied by other acts of a collateral nature, is held to constitute intrinsic fraud and ordinarily affords no ground for vacating a judgment.
In Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, 10 L. R. A. (N. S.) 230, it was held:
“A party to a judgment cannot impeach or set it aside in a collateral proceeding on the ground that it was obtained by perjured testimony.” (Syl. 1.)
This rule was followed in the Plaster Co. case, supra, in which it was held:
“In an action to vacate a judgment for fraud of the successful party a petition fails to state a cause of action where it relies solely upon the ground that the judgment was obtained upon false or perjured testimony and shows that the issue to which the alleged false testimony relates was raised by the pleadings and was tried out upon a conflict of testimony, the truth or falsity of which was necessarily determined in the former action.” (Syl. S.)
In Littlefield v. Paynter, 111 Kan. 201, 206 Pac. 1114, it was held:
“The truth or falsity of the testimony produced was a matter for the determination of the court rendering the judgment and that matter, not being extrinsic or collateral to the issue involved, must be regarded as adjudicated and not open to inquiry in another action.” (Syl. 2.)
In the Putnam case, supra, the rule was thus stated:
“Where the court in the original case denied the divorce but divided the property after hearing evidence as to its existence, extent and value, any con cealment of property by the defendant from the plaintiff and the court prior to and at the time of the trial, if it amounted to fraud, would be intrinsic fraud.” (Syl. 3.)
31 Am. Jur., Judgments, § 662, p. 236, states:
“Most cases support the doctrine that false testimony alone does not constitute sufficient cause for equitable relief from a judgment obtained thereby. Under this rule, when the issues of fact are so squarely made that each party knows what the other will attempt to prove, and neither is under any necessity of depending on the other to prove facts to be as he himself claims them, the courts will refuse to grant relief on the ground of false or perjured testimony.”
To the same effect is 49 C. J. S., Judgments, § 374, p. 745, where it is said that according to the great weight of authority, perjury, unaccompanied by any extrinsic or collateral fraud, ordinarily does not constitute ground for equitable relief against a judgment inasmuch as perjury or false swearing is a species of intrinsic rather than extrinsic fraud.
Despite the difficulty often encountered in making a practical application of the distinction between the two types of fraud, it is clear from the foregoing authorities that, generally speaking, “extrinsic fraud” relates to acts which prevent a fair presentation of a controversy, and that “intrinsic fraud” relates to acts which prevent a fair determination of the issues once a court has a controversy before it. It is equally clear that perjury, standing alone, is held to constitute intrinsic fraud and ordinarily affords no ground for vacating a judgment. The reason for the last mentioned rule is that there must be an end to litigation, and where a party has had his day in court and knows what the issues are he must be prepared to meet and expose perjury at the time — otherwise litigation would be interminable. The rule is well stated in Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 13 L. R. A. 336, 25 Am. St. Rep. 159, cited with approval by this court in the Plaster Co. case, supra, and discussed in the annotation at 88 A. L. R. 1201 (1207 and 1208):
“In all such instances [of extrinsic fraud] the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. . . . Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is, that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again ad infinitum.” (p. 134.)
Applying all that has been said to the record before us, what disposition is to be made of this case?
Plaintiff contends that she alleges fraud on the court and herself resulting from defendant’s failure to disclose and reveal the total assets of the parties which were known only to and controlled by him. Conceding this to be true, nevertheless, stripping paragraph IV of the petition of excess verbiage, there can be no doubt but that defendant is charged with testifying falsely concerning the amount and nature of personal property then owned by him or them jointly. In other words, he is charged with perjury. He is not charged with any acts which, under the authorities cited, constitute extrinsic fraud.
Perjury, standing alone, being intrinsic fraud, is an insufficient ground to vacate the judgment under the mentioned statute, and the demurrer to the petition was properly sustained.
The judgment is therefore affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from a judgment of the district court of Johnson County vacating and setting aside an order of the State Commission of Revenue and Taxation, hereinafter referred to as the appellant, wherein the appellant had sustained an additional assessment of income tax liability, and interest thereon, made by its Director of Revenue against Robert J. and Philomene Muntzel, hereinafter referred to as the appellees, for the calendar years 1947 to 1952, inclusive.
The cause was determined in the court below without evidence other than a stipulation of facts and the contract of purchase on which appellant based its additional tax assessment. Therefore, since these instruments contain all factual information essential to a proper understanding of the single appellate issue involved, they will be quoted in toto or referred to at length.
So far as pertinent the facts, as stipulated by the parties preceding the trial, read:
“On December 6, 1946, the taxpayers entered into a contract in writing under the names of R. J. Muntzel and Philomene Muntzel with MuntzelBenson-Marsh Nut Company, a Kansas corporation, for the purpose [purchase] of a wholesale and retail nut meat business located at Mission, Kansas, of which they were sole owners. A copy of said contract is attached hereto, marked Exhibit ‘A’ and made a part hereof and was introduced in evidence herein and accepted as appellant’s Exhibit ‘A.’
“The sale of the business pursuant to the contract was completed, income was received under the contract, and taxes paid thereon in the years 1947, 1948, 1949, 1950, 1951 and 1952. On November 20, 1953, the State Commission of Revenue and Taxation notified the taxpayers of an assessment for the years 1947 through 1952, inclusive, except 1950, said notice of assessment being as follows:
“ ‘The Commission of Revenue and Taxation recently held a hearing in the matter of the Muntzel-Benson-Marsh Nut Co. regarding the taxability of payments from the company to you, and has ruled that these payments are royalties and not for the purchase of a capital asset: Therefore they are deductible as expense on the books of the corporation, and to you are ordinary gain and fully taxable rather than gain from the sale of capital assets and only 50% recognized as taxable, as you have claimed in all years from 1947 to 1952, inclusive, except 1950 when they were shown as fully taxable.
“ ‘Our assessment of February 29, 1952, has been held in abeyance pending a hearing on this appeal of the corporation and now that it has been settled we must ask that you accept the responsibility for payment. As other years are now involved, a statement covering the years 1950, 1951 and 1952 has been prepared. Your liability therefore is as follows:
‘Previous assessment............................... $402.78
Assessment for 1950-51-52......................... 209.66
$612.44
. “ ‘Kindly forward remittance for this amount within thirty (30) days.’
“Upon hearing before the State Commission of Revenue and Taxation held May 4, 1954, the taxpayers contended that the contract was a contract to sell, that the assets had been held more than six months and that the proceeds of the sale thereof were properly treated as capital gains. A copy of the proceedings has been introduced in evidence and accepted as appellee’s Exhibit 1. At the conclusion of the hearing the State Commission of Revenue and Taxation made its finding confirming the assessment from which order appeal has been taken to this court.
“In January, 1947, the taxpayers assigned to the corporation all of their interest in the trade-mark registered as No. 262666 dated October 2, 1929 and during all of the time in question tire corporation occupied the premises owned by the taxpayers paying therefor the sum of $125.00 per month rent. The taxpayer was given one share of stock in the corporation as a qualifying share but has never had any other interest or ownership in the corporation or any official connection therewith.
“Copies of the taxpayer’s returns for the years in question are attached hereto marked Exhibits 3, 4, 5, 6 7, 8 and 9.”
The Exhibits referred to in the last paragraph of the stipulation are not required for disposition of the involved issue and for that reason will not be reproduced or hereafter mentioned.
In substance, after identifying R. J. and Philomene Muntzel as first parties and Muntzel-Benson-Marsh Nut Company, a Kansas corporation, as second party, material provisions of the contract, dated December 6, 1946, on which tire rights of the parties must stand or fall and which will be referred to subsequently by paragraphs numbered as they appeal in that instrument, are as follows:
1 and 2. First parties have been engaged in the wholesale and retail nut meats business under the name of R. J. Muntzel Pecan Company and second party is a Kansas corporation.
3. First parties agree to turn over to second party all the physical assets and inventory owned and used by them in connection with the operation of the aforesaid business for which second party agrees to pay the cost price of the inventory of salable merchandise on hand not to exceed $30,000.
4, 5 and 6. First parties agree that after the date of the contract they will refrain from engaging directly or indirectly in the nut business for a period of twenty-five years; will co-operate with second party in giving advice and aid in carrying on such business and meet upon request with officers of second party at least once a month to give it the benefit of such advice and counsel as they may desire; and will assist second party in the purchasing of merchandise, particularly nuts, necessary and incidental to the continued operation of the business.
7 and 8. First parties, as the owners thereof, agree to rent the premises previously occupied in carrying on the business to second party at a monthly rental of $125.00 per month; and license second party to use their registered trade-mark, “Muntzel Cell-O-Pakt,” during the life of the contract, and perpetually thereafter if the total purchase price “hereinafter set forth” is paid.
9. Second party agrees to take over the going business, good will, trade-marks and, as far as possible, to continue the operation of the business upon the long established trade policy.
10 and 11. Second party agrees to pay first parties a royalty on all sales business transacted by it on a percentage basis (describing it); the minimum total royalty to be $3,000 per annum.
12. When total royalty payments reach $50,000 such payments shall cease and the total business and its assets shall become the absolute business of the second party, who shall be forever released from any further obligation to pay further royalties, except that after payment of $50,000 the total business and its assets shall become the absolute business of second party subject to an obligation to pay Muntzels lVf/o on city sales and 1% on all other sales so long as either shall live.
13. Upon default in the faithful performance of the contract first party shall have the right to cancel the contract and take over the business by paying the cost inventory price of merchandise on hand, plus the reasonable value of other assets, such value to be determined by arbitration.
14. Second party is to carry fire, tornado and product liability insurance on all merchandise owned by it, such insurance to be payable to second party; the purpose thereof is to keep second party solvent for the benefit of first parties.
15. Second party is to keep a competent accountant and maintain a system of bookkeeping reflecting all business transacted by it, such records to be open for inspection by first parties at all reasonable times.
16. Royalties provided for shall be payable on the 15th day of each month.
17. In the event of the death of either of first parties this contract shall continue so long as the other continues to live, but not after total royalties of $50,000 have been paid except that the \Vi% agreed on shall continue to be paid as long as either party shall live; the death of both of first parties automatically releases any further obligations upon second party to pay royalty to anyone, including their estate, their heirs or assigns except for a sum representing the difference between $25,000 and the amount theretofore paid them; which sum shall be paid to their estate, or their heirs, assigns, or devisees, as the case may be; when the last mentioned sum is fully paid second party shall be the absolute owner of the business, free and clear of all claims whatsoever and the contract shall be treated as fully cancelled in all respects; if as much as $25,000 has been paid to first parties during then lifetime and prior to the death of both, then in that event, second party has no further obligation to pay any further amount whatsoever, under the contract, and said business, and its assets, shall become the absolute property of second party free and clear of any and all claims whatsoever; upon the completed payment of $50,000 no further minimum royalty shall be required, nor shall any minimum royalty be required in event of the death of both first parties pending the final payments provided in this paragraph; in the event of serious depression minimum royalty shall be reduced from $3,000 to $2,000.
18. This contract shall be construed as a contract of purchase subject to the conditions and terms herein set out until the amounts herein provided for are paid, at which time the contract shall be construed to be a completed sale of vesting absolute title to said business in second party.
19, 20 and 21. business of established routes will not be sold or assigned during the fife of the contract; weights and prices will follow the formula of six years past with permission to second party to increase prices up to 8% in the event of increased costs; second party shall not sell any established business in any territory.
23. In the event Arthur Renson and Carl Marsh (conceded to be the owners of all but qualifying shares of stock in the corporation) shall die or both become incapacitated, then after $50,000 in royalties has been paid by second party, there shall be no obligations to pay first parties the 1%% and 1% royalties otherwise payable, after five years from date of any sale of the business by second party; this provision shall not alter other terms of the contract and is inserted for the purpose of aiding second party to dispose of its investment after payment of $50,000 in royalties in the event said individuals connected with second party shall die or become incapacitated.
Upon presentation of the cause as previously stated and after arguments by counsel for the respective parties the trial court returned the following conclusions of law:
“1. This court has jurisdiction of the subject matter of this proceeding under G. S. 1949, 74-2426, and also has jurisdiction of the parties hereto.
“2. The contract herein, considered in its entirety, is a contract of sale and should be construed as such.
“3. The payments of ‘royalties’ as provided for in said contract constitute payments on the purchase price of a capital asset and therefore should be treated as capital gains under the provisions of G. S. 1949, 79-3216.
“4. The order of the State Commission of Revenue and Taxation of the State of Kansas rendered on August 30, 1954, is erroneous and should be vacated and set aside, and judgment entered for R. J. Muntzel and Philomene Muntzel against the State Commission of Revenue and Taxation of the State of Kansas in the sum of $639.45 and costs.”
Following action as above indicated the trial court rendered judgment against the appellant in the sum of $639.45 and costs in accord with its conclusion of law No. 4 and further decreed that pursuant to the provisions of G. S. 1949, 79-3231(c) such judgment should bear interest at the rate of one-half of one per cent per month from October 1, 1954 (the approximate date on which appellees paid the involved additional tax assessment under protest). Thereupon appellant perfected the instant appeal.
The problem presented by the appeal will be simplified by stating at the outset that no one involved in this case, not even the appellant, contends that the judgment rendered by the trial court is erroneous if the involved contract is to be construed as a contract of sale and the payments of royalties therein provided for constitute payments on the purchase price of the business in question.
Notwithstanding the stipulation of the parties, wherein it is recognized that the corporation and appellees entered into a contract for the purchase of the business in question and that the sale of that business was completed pursuant to that contract, appellant contends that the language thereof is so indefinite and uncertain that this court is called upon to interpret its terms and determine whether, at the time such contract was entered into, the parties thereto considered the royalty payments therein provided for as constituting payments of the purchase price (conceded to be capital gains) or regarded them as ordinary income. Consistent with its action in making the additional assessment of tax liability against appellees the appellant of necessity takes the position the contracting parties contemplated such payments were to be regarded as trade-mark license and personal service payments to the appellees and therefore should be treated as ordinary income, not as payments on the sale of capital assets.
We do not feel called upon to here detail and discuss the numerous arguments advanced by industrious counsel for appellant respecting the force and effect to be given isolated provisions of the contract in question. Nor do we deem it necessary to labor conclusions it reaches from an analysis of the contract on that basis. Noting, as appellant contends, that the issue involved presents a matter of first impression before this court and assuming, without deciding, the contract is so indefinite and uncertain as to require an interpretation of its terms our duty is to survey such instrument in its entirety, including each and all of its provisions, and then determine what the parties had in mind on the basis of their intention at the time of its execution. When that is done, looking through form to substance, we have no difficulty whatsoever in concluding, particularly in view of the heretofore mentioned provisions of paragraphs 3, 7, 8, 9, 12, 13, 14, 17, 18 and 23 and notwithstanding arguments advanced by appellant to the contrary which have all been reviewed and carefully considered, that in executing the agreement the parties intended to and did enter into and consummate a contract for the outright sale of the business which contemplated that the royalties therein specified were to be regarded as payments on the purchase price of such business, not as trade-mark license and personal service payments in the nature of income. Assuming arguendo, although we do not subscribe to the assumption, that theretofore there might have been some doubt regarding the construction the parties themselves placed upon the contract we think all doubt with respect thereto was done away with by them when, in January 1947, as the parties stipulate and agree, appellees assigned all their right, title and interest in the trade-mark involved in the contract to the corporation.
With the contract construed as above indicated it necessarily follows the trial court’s conclusions of law Nos. 2 and 3, heretofore quoted, were proper. Therefore its judgment must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from an order of the trial court overruling appellant’s motion to quash an appeal to that court from an order of appellant determining the vested rights of appellee water users together with sixteen other water users who are not parties to this appeal.
The appellant was R. V. Smrha, chief engineer of the division of water resources of the state board of agriculture, and the appellees were the cities of McPherson, Moundridge, and Inman, which had had their vested rights as water users determined by appellant according to law. (G. S. 1949, 82a-704; 82a-706.)
After the determination of the vested rights of appellee water users, they took an appeal therefrom to the district court of McPherson county within a sixty day period as provided by G. S. 1949, 82a-704, as follows:
“The order of determination of the chief engineer shall be in full force and effect . . . unless and until . . . stayed by an appeal ... to the district court of the county in which the point of diversion of such use is located. All such appeals from the order of the chief engineer must be filed within sixty days after posting and mailing of the notice of such order of determination.”
Appellees have presented two contentions on the motion to dismiss the instant appeal. The first is that prior to 1955 under our laws there was no statutory provision for an appeal to this court from a ruling of the district court on an appeal to that court from a ruling of the chief engineer of water resources; and second, that the order overruling the motion to quash was not a final order or judgment and, therefore, it is not appealable.
We will cover the second contention first for the re'ason that should appellees be correct, then we do not have the first contention properly before us and as a result thereof we cannot consider it in the instant appeal.
In the case of Barnhouse v. Rowe, 178 Kan. 248, 284 P. 2d 618, an order overruling a motion which was not a final order or equivalent to a demurrer was held not appealable, and likewise in Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P. 2d 442, it was held an order sustaining in part and overruling in part a motion to strike portions of an amended petition was not an appealable order. In these two cases the statutes and some of our earlier cases which set out what orders are appealable were discussed. (See, also, Vandegrift v. City of Wichita, 176 Kan. 141, 269 P. 2d 477.)
A case even more in point here than the above cases is Western Light & Telephone Co. v. Toland, 177 Kan. 194, 277 P. 2d 584, where in an eminent domain proceedings to condemn land an appeal from the award of the appraisers was taken by the condemner. The landowner, among other things, moved to dismiss the appeal of the condemner and his motion was overruled by the district court. The landowner took an appeal from that order and this court in effect said that an order sustaining a motion to dismiss such an appeal from an award of appraisers is final and ends the proceedings (following G. S. 1949, 60-3302; 60-3303) but an order overruling such a motion does not have that effect, is not final and, prior to final judgment, is not appealable. (Heiman v. State Highway Comm., 146 Kan. 315, 69 P. 2d 685; Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650; Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652.)
The same conclusion — that an order by a district court denying a motion to dismiss an appeal taken from an award by appraisers in a condemnation proceedings is not a final order and is not appealable —was reached in Western Shale Products Co. v. City of Fort Scott, 172 Kan. 336, 239 P. 2d 828.
By reason of the authorities cited, which are only a few of many to the same effect, we are constrained to hold that we do not have jurisdiction in this matter and in view thereof the other point challenging the appellate jurisdiction of this court at this time need not be discussed.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which The Hitch Land & Cattle Company, a taxpayer, hereafter referred to either as the plaintiff or the company, sought a declaratory judgment as to the proper method of assessing real estate for taxation and for the recovery of taxes paid under protest. The trial court rendered judgment in favor of the plaintiff and the defendant appeals.
Stated chronologically, the pleadings disclose that prior to November 14, 1944, one Fred Koch owned the entire fee simple estate in 960 acres of land in Seward county which need not be specifically described. On the above date he conveyed the lands to the company reserving to himself, his heirs and assigns, all of the oil, gas and other minerals, the deed being duly recorded on November 29, 1944. Thereafter the register of deeds certified the mineral reservations to the county clerk who listed, valued and assessed the mineral rights for the year 1945, separate and apart from the fee, and the taxes thus assessed were paid. All real estate was subject to valuation and assessment in 1946, and in that year the assessor valued and assessed the mineral interests, and further valued the company’s interest in the real estate at $5.00 per acre. The company was not satisfied with the valuation and appealed to the board of county commissioners sitting as a board of equalization and contended that the assessor, in making the valuation and assessment, had not made any allowance or deduction of the outstanding mineral interests but had valued the company’s lands at the same value as surrounding and adjacent lands of like kind and quality where the entire fee, including surface and mineral rights, was in oiie owner and that the valuation was unequal, unfair, unjust, grossly excessive and resulted in an illegal tax upon its property and a greater burden than upon similar other property. The county board denied the company relief and it appealed to the state commission of revenue and taxation as the state board of equalization. Prior to the hearing before the latter commission, the company and the board of county commissioners entered into and filed a written stipulation, in which it was stated, among other things not necessary to note, that all nonproducing minerals, where completely or partially separated from the surface, were assessed for the year 1946 upon the basis of $3.00 per acre, and:
“(4) That in assessing the lands of appellants the deputy assessor, County Assessor and the Board of Equalization of Seward County, Kansas, made no allowance for outstanding mineral interests, the lands of each of the appellants being assessed upon the same basis as surrounding lands of l ice kind and quality where the entire fee (surface and minerals) is intact in ownership in one person; that is to sav. that the surface rights of appellants were assessed ai the same value as the entire fee (surface and minerals) in surrounding and adjacent lands of like kind and quality;
“(5) That in addition to the assessments of appellants surface rights the owners of the minerals underlying said lands were assessed upon the basis of $3.00 per mineral acre, making the total assessment upon each 160 acres of land involved in these appeals $480.00 more than total assessment upon adjacent and surrounding lands of like kind and quality where surface and mineral rights have not been separated;”
On September 27,1946, the state board of equalization found that the company’s lands were not assessed relatively higher than other property of like kind in the county and the facts did not justify a reduction of the valuation and assessment and it ordered that the appeal be denied. The record as abstracted does not disclose when the state board of equalization mailed its order to the company, but on December 26, 1946, the company paid the entire tax due under a written protest, the sufficiency of which is not questioned, alleging the total tax assessed was illegal in the amount of $54.11 (the amount of the tax attributable to the minerals). On January 6,1947, the taxpayer company requested in writing a refund by the county of the tax paid under protest and on the same day the request was denied and rejected by the defendant.
The record as abstracted does not disclose the date the present action was commenced or when any pleading was filed. There is no complaint, however, the action was not begun in time.
In its petition, the plaintiff alleged at length the facts as to its ownership of the real estate, the method and manner of the assessment of its lands and of the mineral rights thereunder, and its contention as to the illegality of the assessment; that it had protested to the county board of equalization and later had appealed to the state commission of revenue and taxation, a copy of the stipulation filed with the latter board and its order being attached as a part of its petition, and that after its appeal was denied that it had paid the tax assessed against it under written protest and had requested a refund of the protested amount, a copy of the protest and of the request for refund being attached as part of its petition, and that an actual controversy existed between plaintiff and defendant as to the proper method and manner of assessment under the facts of the case, and it prayed for a judgment for the amount of the protested tax and for a declaration of law as to the proper method and manner of valuation and assessment for purposes of taxation when the ownership of surface and mineral rights has been severed or separated.
In its answer the defendants denied generally but admitted all of the procedural matters and exhibits alleged and denied the assessment and valuation of plaintiff’s lands were not uniform or were unequal, unfair, unjust, excessive or illegal. Defendant also alleged the facts about plaintiff’s ownership of the lands, the assessment of the mineral interests in 1945 and the payment of tax thereon and the assessment of the mineral interests thereafter.
The plaintiff’s reply admitted the facts as to ownership and alleged that after the separation of the surface and mineral rights, plaintiff’s interest was not properly or legally assessed in that no reduction was made by reason of the outstanding mineral interests.
With the issues thus joined, on some undisclosed date the defendant moved for judgment in its favor upon the pleadings. The trial court heard this motion on January 10, 1955, when the cause was submitted upon “the files, pleadings and written briefs.”, and taken under advisement by the trial court which on April 7, 1955, found, in substance, that the action was one for recovery of taxes paid under protest and for a declaratory judgment as to the proper manner and method of assessing real property for taxation purposes when the surface and mineral rights had been separated; that an actual controversy existed between the parties and the court had jurisdiction of the parties and the subject matter of the action; that under all the facts and circumstances as stipulated and as disclosed by the pleadings, the plaintiff should have judgment, and it ordered and decreed that plaintiff should have judgment for the sum of $54.11 and
“(b) That in valuing lands for taxation purposes such valuations should include the minerals when they are owned by the same person who has the fee to the surface; but when the minerals have been partially or wholly separated from the fee and separately taxed, as provided by law, then the owner-of the fee would be taxed only according to the value of his remaining interest in the land, and in valuing such lands for taxation purposes the defendant, its officers and agents, shall proceed in good faith accordingly; and
“(c) That the costs of this action are taxed to defendant.”
In due time the defendant perfected its appeal to this court.
Unless otherwise indicated our references to statutes are by chapter and section number as they appear in the General Statutes of 1949. The gist of appellant’s argument is that under Art. XI, Sec. 1, of our state constitution the legislature shall provide a uniform and equal rate of taxation, and that by 79-401 the legislature provided for the listing and valuation of real estate (and by 79-501 that each parcel of real property shall be valued at its true value in money to be determined by the assessor from actual view and inspection); that under 79-1601 the board of county commissioners shall constitute the county board of equalization, with duties prescribed in 79-1602, which need not be detailed here; that among other powers the state commission of revenue and taxation, under 79-1404, shall exercise general supervision over township assessors, boards of county commissioners, county boards of equalization and others to the end that all assessments of real property be made relatively just and uniform; that provision is made for a taxpayer to present his grievance to the county board of equalization, 79-1602, Fifth, and for relief by action of the state commission of revenue and taxation, 79-1702. Appellant makes no contention that appellee did not properly pursue its remedies under the above statutes, but it contends that a court will not substitute its judgment for that of the assessor or the board of equalization as to the valuation and assessment of real property (e. g., Symns v. Graves, 65 Kan. 628, 70 Pac. 591, and Hodgins v. Shawnee County Comm’rs., 123 Kan. 246, 255 Pac. 46); that in the absence of fraud or conduct which is equivalent of fraud, on overvaluation of property, the courts will not enjoin the collection of taxes; that the statutes provide that irregular and excessive assessments may be corrected before a board of equalization, and in the absence of fraud, the decision of the statutory board is final (See, e. g., Benn v. Slaymaker, 93 Kan. 64, 143 Pac. 503, where it was held that an assessment is not deemed fraudulent merely because it is excessive.). Appellant also directs attention to 79-420 which makes provision for taxation where the fee is in one person and the right to the minerals is in another, and for the separate taxation of the minerals and to cases arising under that statute holding it to be constitutional and that minerals are real estate and when the owner does not have the fee they should be separately assessed and taxed. (Mining Co. v. Crawford County, 71 Kan. 276, 80 Pac. 601.) Appellant directs attention to the-finding of the state commission that the lands of the appellee were not taxed at a greater rate than those of others of like kind and quality; and that the exclusion of one item (value of minerals) contended for by the appellee ignores the complete and entire picture of taxation and places too much emphasis on appellee’s desires as a basis for valuation; that the courts can in no event fix a value of property for taxation; that the court’s only function is to determine whether the valuation was arbitrarily or unreasonably made or oppressive or discriminatory and not to substitute its judgment for that of the taxing bodies (See, e. g., Miller Investment Co. v. Sedgwick County Commrs., 151 Kan. 246, 98 P. 2d 109, and Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1, and cases cited). On the basis of the contentions of law made, appellant contends the trial court erred in its conclusions and judgments.
The gist of appellee’s contention there was no error is that appellee and appellant were in disagreement as to the proper method of valuation for tax purposes and whether lands from which the minerals had been severed were to be valued in the same amount as lands of like quantity and quality where there had been no severance; that it was entitled to have a declaratory judgment to settle the disagreement, and to have relief for the amount unlawfully exacted from it by reason of what it contends was an unlawful valuation and consequent assessment; that the trial court’s declaration of law as to valuation of real estate for the purposes of taxation where G. S. 1949, 79-420, is involved, is in accord with and is supported by our former decisions (See e. g., Mining Co. v. Crawford County, supra; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750; Robinson v. Jones, 119 Kan. 609, 240 Pac. 957; Hushaw v. Kansas Farmers Union Royalty Co., 149 Kan. 64, 86 P. 2d 559; Medford v. Board of Trustees of Park College, 162 Kan. 169, 175 P. 2d 95, and cases cited in the above); that while the court may not fix the value of property for purposes of taxation, it does have the power to determine whether the valuation was arbitrarily or unreasonably made (Union Pac. Rid. Co. v. State Tax Comm., supra); that the record discloses the valuation was arbitrarily and unreasonably made and in violation of law and the trial court did not err in so finding and in rendering judgment for appellee.
Although there is some criticism in the brief of appellant, as well as in the brief filed by the state commission of revenue and taxation as amicus curiae, of the declaration of law made by the trial court as to the proper method of assessment, it being said, in effect, that it declares, says or means that the assessor must determine the value of the entire fee and to determine the value of the surface must deduct from the value of the entire fee the value fixed for the severed minerals. We do not agree with that construction. Es sentially it declares that when the minerals have been severed and taxed the owner of the fee shall be taxed according to his interest, and in valuing that interest, the taxing officials shall proceed in good faith. As applied to the factual situation of appellee, we cannot say the declaration of the trial court was erroneous.
We find it unnecessary to make any review of the various statutes and decisions relied on by the appellant and to a considerable extent by the appellee for there is no doubt the rule is that a court will not substitute its judgment for that of the assessor or board of equalization as to the valuation of real estate for the purposes of taxation, and that it will not interfere in fixing of such valuation or in the collection of tax based upon the valuation fixed by the assessor or board of equalization in the absence of fraud or conduct which is the equivalent of fraud or of arbitrary, oppressive, unreasonable and discriminatory conduct by the taxing officers.
Upon the issues joined the appellant moved for judgment. We need not pause to discuss the rule as to admissions of pleaded facts made by such a motion for the district court was confronted with the allegations of the petition, admitted by the answer, that the appellee owned the fee or surface of lands, the mineral interests thereunder being reserved by its grantor, and that there had been a severance, and that the appellant and the appellee had stipulated in writing that in assessing the appellee’s land the assessor and the county board of equalization had assessed the lands upon the same basis as surrounding lands of like kind and quality where there had been no severance and had placed the same value on appellee’s surface rights as it placed on the entire fee, including both surface and minerals, in surrounding and adjacent lands of like kind and character. Under the facts thus stipulated, it is not open to argument that the valuations were not uniform but were determined in an arbitrary, oppressive and discriminatory way, and without regard to the law. It does not follow that the total of the valuations of the severed minerals and of the remaining fee must be exactly the same as the assessment of the entire fee where there has been no severance, but it does follow that, in lands of like kind and quality, the surface only of lands where there has been a severance may not be held to be of the same valuation as those where there has been none.
Insofar as the argument goes that a court will not give relief against a mere overvaluation, it may be remarked that the rule assumes that proper methods have been followed and the over-: valuation, if any, is a matter of the exercise of judgment. In the instant case we have a valuation fixed on a basis which is illegal, arbitrary and discriminatory. Under all of the decisions, a court may grant relief where fraud or conduct equivalent thereto exists or where the action of the taxing officials is illegal, arbitrary and «discriminatory.
With reference to a contention the court was without power to place a valuation on appellee’s land and compute the tax, it may be said that even though by reason of the manner in which the issue reached the trial court, appellant’s allegations of fact, not admitted by the reply, could not have been considered, we note that actually no allegation was made in appellant’s answer that the valuation of appellee’s interest in the real estate was reached otherwise than as shown by the stipulation, or that the valuation made was otherwise a proper one. While viewed from one angle it might be said the trial court had to fix a valuation in order to determine the issue, it is more nearly correct to say that under the facts stipulated the valuation was too high in an amount equal to the valuation placed on the severed mineral interests, and all that was involved was a mere calculation.
The court feels impelled to say that the matters in controversy here should have been settled long ago. Over ten years have elapsed since the assessment was made and over nine years have elapsed since the appellee’s protests were considered by the county board of equalization and by the state commission of revenue and taxation and since appellee paid his taxes under protest. Although the abstract does not disclose, this action must have been commenced in the early part of 1947. Public business should be more expeditiously handled. The court also feels impelled to say that because of the stipulation, a factual situation is presented different than has been considered in our former decisions only a part of which are cited above.
Appellant has not sustained the burden of showing the trial court erred in ruling on its motion for judgment on the pleadings, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action for temporary damages sustained by plaintiffs as a result of defendant railroad’s closing of a cattle crossing under its railroad on plaintiffs’ farm, and to compel defendant to restore the underpass or to construct a farm crossing over the railroad.
Defendant’s demurrer to the second amended petition was sustained, and plaintiffs have appealed.
Following allegations of plaintiffs’ ownership of the described quarter section of land in Labette County, the second amended petition (hereinafter referred to as petition) alleges:
“About 1879, the defendant or its predecessor, by and through the power of eminent domain, acquired a right-of-way through the above described land now owned by plaintiffs and constructed a grade thereupon, excepting a portion thereof where a bridge or underpass was constructed, commonly known as Bridge F-374.4, which upon construction continued to give plaintiffs and their predecessors in title freedom of access to and from the parcel of their land bisected by the grade construction, and no serious damage resulted to plaintiffs and their predecessors in title by virtue thereof.
“Though defendant and/or its predecessors acquired right by eminent domain to construct the grade on its said right-of-way in the manner described, it did not, at any time, acquire any right to that portion of plaintiffs’ land over which said bridge or underpass was situated; nor have defendants or their predecessors acquired any right since 1879 to remove said bridge or underpass in such a manner as to close, fill, or otherwise make impossible the passage of plaintiffs’ livestock to and from the bisected north and south portions of plaintiffs’ farm.
“From the time said railroad bridge was constructed, a wing fence existed which led from the pasture located on the north side of said grade to property on the south side of said grade and said opening and underpass under said bridge remained in use from its construction in about 1879 until approximately the latter portion of April, 1952, the exact date being unknown to plaintiff. During all of said period of time livestock could, by means of said underpass, go from one side of said farm to the other and obtain necessary water, shade, feed and shelter. In the latter part of April, 1952, the defendant, or its agents, or employees, tore down said wing fences leading to the openings of said underpass, fenced off said underpass and' completely filled said underpass, except for a tin whistle or opening of approximately three feet in diameter, which is wholly inadequate for the passage of plaintiffs or their livestock between said north and south portions of said farm, and the filling of said underpass has, for all practical purposes, entirely blocked, obstructed and shut off plaintiffs’ right of ingress and egress to said north and south portions of said farm.”
It is then alleged that as a direct result of the foregoing acts plaintiffs have had to spend additional time in caring for their livestock; that they are unable to make maximum use of their farm; that they have had to use additional grazing land located elsewhere for their cattle; that by reason of a lack of a source of water on the northern portion of the farm the same is practically useless as pasture land and will remain so as long as the underpass is obstructed, and that as a result of such obstruction the land has no value for general farming purposes or for cultivated crops. Further, that as a direct result of such obstruction plaintiffs had, during the two years preceding the filing of their petition, been damaged to the amount of $2,494.65.
In count two of the petition plaintiffs seek to invoke the provisions of G. S. 1949, 66-301 and 303 (hereinafter mentioned), and pray for an order compelling defendant to reopen and maintain the underpass, or, in the alternative, to construct and maintain a crossing thereon over or under the railroad track at some convenient place on plaintiffs’ property.
Defendant’s demurrer- was on the ground the petition does not state facts sufficient to constitute a cause of action against defendant and in favor of plaintiffs.
Plaintiffs contend their petition alleges that the right of way acquired by defendant was a mere easement; that they and their predecessors retained the fee therein subject only to the use of the land by defendant for the purpose for which it was condemned; that defendant never acquired a right by condemnation or otherwise to utilize the land under the bridge or to obstruct the under-grade crossing; that plaintiffs and their predecessors never parted with title to the land under the bridge, and that defendant may not now impose a new burden upon their land without payment of compensation. Further, it is contended that it may be inferred that the original easement obtained in the condemnation proceeding back in 1879 contemplated a reservation to plaintiffs’ predecessors in title of a right of way across or under defendant’s roadbed and tracks, and that, all of’ the foregoing allegations being considered as true, for purposes of the demurrer, they have stated a cause of action.
In approaching the question presented it is necessary to keep in mind the elementary rule that a presumption of validity and regularity attaches to all judicial proceedings until the contrary is shown. This presumption applies equally to a condemnation proceeding. (L. N. & S. Rly. Co. v. Meyer, 50 Kan. 25, 32, 31 Pac. 700; C. K. & W. Rld. Co. v. Sheldon, 53 Kan, 169, 35 Pac. 1105.) Article 12, § 4, of our Constitution provides:
“No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.”
In other words, when defendant or its predecessor acquired the right of way through the land in question in 1879, it is presumed that it paid full compensation for it. Having paid full compensation, defendant, in the absence of an agreement or reservation to the contrary, would be under no obligation to maintain at its own expense the bridge or underpass in question in perpetuity. It may be assumed that the petition, being the third such pleading to be filed by plaintiffs, contains all available facts and information on the question, and nowhere is it alleged that defendant or its predecessor agreed to build and maintain the underpass, or that the building and maintenance of such was taken into consideration in the assessment of damages in the condemnation proceeding in 1879.
It is true the petition alleges that although the railroad acquired the right of way by eminent domain it did not acquire any right to the portion over which the bridge was built. In other words, it is alleged the right acquired excepted the portion of the land where the bridge or underpass was constructed, the inference, of course, being that plaintiffs now own that particular portion of the land, and that they have a statutory right, to compel the continued maintenance of the underpass or crossing.
In contending that such allegation of ownership is admitted by the demurrer we believe plaintiffs are in error. It is an elementary rule of construction that a demurrer admits only facts well pleaded and not mere naked conclusions. A general allegation of title and ownership constitutes merely a conclusion of the pleader and is not admitted by a demurrer. (Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22; Preston v. Shields, 159 Kan. 575, 156 P. 2d 543; State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 76, 283 P. 2d 461.) As far as this phase of the case is concerned, we find a total lack of facts showing ownership of the particular portion of land in plaintiffs, as well as a total lack of anything in the nature of an agreement on the part of defendant or its predecessor to maintain the underpass or crossing. In In re Estate of Kerschen, 176 Kan. 226, 269 P. 2d 1033, it was said that when a plaintiff’s cause of action is predicated upon a fact essential to his recovery that fact must be pleaded as well as proved.
In support of their position with respect to the nature of an easement for a right of way, plaintiffs call our attention to a number of early decisions of this court as having a bearing on the question, among them being K. C. Rly. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190. We have examined this and other decisions, but in our opinion they are not decisive on the question presented. Reference is madé, however, to Railway Co. v. Wynkoop, 73 Kan. 590, 85 Pac. 595, and to Stone v. Railway Co., 75 Kan. 600, 90 Pac. 251. We do not quote from the two last-mentioned cases, but note the fact that in each of them an agreement was involved and taken into consideration in the assessment of damages in condemnation. Nothing of that nature is pleaded in the case before us. As to count one of the petition the demurrer was properly sustained.
We turn now to count two in which plaintiffs seek to invoke the provisions of G. S. 1949, 66-301 and 303, and to compel defendant to reopen and maintain the underpass, or, in the alternative, to construct and maintain an underpass or crossing at some convenient place on plaintiffs’ property.
These sections of our statutes were enacted in 1911. 66-301 provides that whenever any railroad shall run through any farm so as to divide it, such railroad, at the request of the owner, shall construct and maintain a crossing over or under the railroad track at some convenient place so as to permit ready and free crossing by animals, farm implements and vehicles. 66-303 provides that if upon such request for a crossing being made the railroad shall fail, neglect or refuse to construct one or to keep it in repair, then the landowner may by appropriate action compel the railroad to construct and maintain the same, or the owner may construct such crossing and then collect from the railroad the cost thereof.
Plaintiffs inferentially, if not directly, concede that this count of their petition seeks to invoke a remedy which is unavailable, under the authority of Chamberlain v. Railway Co., 107 Kan. 341, 191 Pac. 261, 12 A. L. R. 224, but contend their petition alleges facts showing the existence of a nuisance, and that they are entitled to injunctive relief to compel the defendant to reopen the underpass which had been wrongfully closed.
The Chamberlain case was an action to compel the defendant to construct, at its own expense, a private crossing over its track and right of way which ran through plaintiff’s farm. The law of the case is well stated in the syllabus, which reads:
“Where a railway company acquired a right of way across a farm in 1885, and at that time paid the owner the full compensation for all the damages, matured, continuing and prospective, which he thereby sustained, the railway company cannot be compelled, under a statute enacted many years later, to furnish a crossing over the railway and to construct it at its own expense to connect the two parts of the farm divided by the railway, since such an application of the after-enacted statute would deprive the railway company of its property without compensation, and deny to it that equal protection of the law which is guaranteed by both the state and federal constitutions.” (Syl.)
This rule was followed in the recent case of Strauss v. Missouri Pacific Rld. Co., 175 Kan. 98, 259 P. 2d 145, in which it was held:
“Where a railroad company obtained by warranty deed a fee simple title to land for a right of way over a farm in 1886 and the grantors reserved no easement for a crossing over the railroad and the grantee did not agree to furnish such a crossing at its own expense for the use and benefit of the grantors, the railroad company is not compelled by virtue of G. S. 1949, 66-301, enacted in 1911, to furnish a crossing to connect the two parts of the farm.” (Syl. 1.)
In addition, it was held that a mere permissive use of a private crossing voluntarily furnished by a railroad company for the accommodation of a landowner did not ripen into an implied agreement so as to compel the company to maintain and repair the crossing.
Under the rule announced in the two last-mentioned decisions count two of the petition clearly does not state a cause of action.
And, while the point is not argued by the parties, we think the petition clearly was demurrable for another reason. Assuming, solely for the sake of argument, that all allegations are well pleaded, and that everything plaintiffs state is true, the result would be that plaintiffs own the particular portion of ground where the underpass was located. That being so, the closing thereof by defendant would constitute a trespass upon their property and an injury to their rights. G. S. 1949, 60-306, Third, provides that an action for trespass upon real property, or an action for injury to the rights of another, not arising on contract, can only be brought within two years after the cause of action shall have accrued. (See also Pever v. Railway Co., 100 Kan. 266, 164 Pac. 159; McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753, and Hughes v. Marathon Oil Co., 142 Kan. 570, 50 P. 2d 937.) It is specifically alleged that the underpass was closed in April, 1952. This action was not commenced until August 7,1954.
For the reasons stated we are of the opinion that the second amended petition fails to state a cause of action, and the order of the trial court in sustaining the demurrer thereto is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus in which the plaintiff seeks to compel the State Commission of Revenue and Taxation to issue an order declaring certain personal property exempt from ad valorem taxation for the year 1953. An alternative writ was issued and the Commission filed its answer raising issues of fact and upon application made, this court appointed a commissioner to hear the testimony and to report his findings of fact and conclusions of law to this court.
The commissioner heard the testimony and later reported to this court, his report including findings of fact and conclusions of law and, in summary, that the property involved was not exempt from taxation and that the plaintiff should be denied the relief for which it prayed. The commission filed its motion that this court approve the report of the commissioner and confirm and adopt his findings of fact and conclusions of law and allow it its costs, and shortly thereafter the plaintiff filed its motion that this court set aside the conclusions of law in the above report and find that the property involved' was exempt. The case is submitted to us on the two motions.
Inasmuch as the findings of fact are in no manner attacked and as they sufficiently cover the pleadings and the facts at issue, it is not necessary that any review be made of the pleadings.
The substance of the findings of fact in the report is that the particular property plaintiff seeks to have declared exempt from ad valorem tax consists of a merchandise inventory assessed at $16,000, a furnace assessed at $130, and moneys and credits assessed at $4,281.36, all located at its place of business in Wichita operated as the Baptist Book Store; that plaintiff is a nonprofit corporation under the laws of Tennessee for the purpose of establishment, support and maintenance of any Sunday-school undertaking on the part of the Southern Baptist Convention, a voluntary association of more than 28,000 Baptist churches, 109 of which are in Kansas; that plaintiff is authorized to print, purchase and distribute by gift or sale religious literature for the propagation of the gospel and the advancement of the religious faith of Baptist churches associated with the above Convention; to buy and sell Sunday-school supplies and . . to deal in books, stationery and general office supplies and to perform all necessary functions incident to the conduct of its business.” The plaintiff’s principal place of business is in Nashville, Tennessee, from which point it directs sale and distribution to Baptist churches of Sunday-school literature, church periodicals, supplies and records and some 11,000 various items of merchandise such as office supplies, pictures, books, cameras, audiovisual aids, toys, novelties and gifts, both by catalogs and by ownership and operation of some forty-seven establishments known as Baptist Book Stores, one being in Wichita; that the literature, periodicals and other printed matter are selected and sold as being religious in character and as in keeping with a religious organization, and most of such articles bear some moral axiom or religious phrase; that plaintiff deals in certain types of cameras and audiovisual aids for religious purposes “. . . although such articles are offered and made available for sale by it to the general public; that many of the items sold and distributed by petitioner are available for purchase at purely secular stores and places of business and are capable of being used by a purchaser for purely secular purposes.” Findings are made as to plaintiffs gross receipts and its net income for 1953 and that the net income was used by the plaintiff for religious purposes and that members of Baptist churches in Kansas affiliated with the Convention received benefits; that plaintiff organized its store in Wichita for the purpose of supplying church materials to Kansas Baptists and its activities are “largely confined” to the sale of church supplies and articles of merchandise such as toys, gifts and novelties, both of a religious and secular nature; that the sales in Wichita materially assist plaintiff in its missionary and religious functions in Kansas and sales at a profit provide more funds available to it in its missionary and religious programs and that its book store in Wichita is not used as a place of public worship or as a place of religious instruction; that plaintiff conducts its book store in Wichita in a manner similar to the operation of other retail establishments; that its manager and employees are hired in Nashville, Tennessee, and that reports are made to that office; that the Wichita store manager purchases some similar articles for sale from numerous salesmen who call on him, the purchases being billed to and paid by the Nashville office and in turn charged to the Wichita operation; that in 1953 the costs of operation in Wichita exceeded the receipts, but if there had been a gain it would have been remitted to the Nashville office and there appropriated and distributed for religious purposes. The last finding of fact reads:
“15. That the merchandise inventory owned by petitioner and located in its book store at 231 North Main Street on March 1, 1953, which was assessed for ad valorem tax purposes at $16,000.00 (see Finding No. 4 above) had been purchased or acquired by the manager of said store in the manner de scribed above and on that date was being held for purposes of resale at a profit to Baptist Churches and other religious or secular organizations and to members of the general public; that petitioner’s moneys and credits located in Wichita on March 1, 1953 and assessed at $4,281.36 (see finding No. 4) resulted from sales of merchandise made at said Wichita book store; that said merchandise inventory, moneys and credits were not being used exclusively for religious purposes at the time said property was assessed for taxation, nor were they used exclusively for religious purposes at any time during tire year 1953; that said merchandise inventory on March 1, 1953, was being held and used at its location for purpose of retail sale at a profit; that said moneys and credits on March 1, 1953, were being held and used at its location to pay the cost of operating said Wichita book store; that said moneys and credits on March 1, 1953, were not appropriated solely to sustain a religious institution; that the furnace owned by petitioner and located in its Wichita book store on March 1, 1953, assessed at $130.00 (see finding No. 4) was not being used exclusively for religious purposes.”
The commissioner’s conclusions of law are:
“Conclusions of Law.
“1. That the property here involved and assessed for ad valorem taxation for the year 1953 was not used exclusively for religious purposes within the meaning of Section 1, Article XI of the Kansas Constitution and the decisions of the Supreme Court of the State of Kansas. Washburn College v. Commissioners of Shawnee County, 8 Kan. 344; Vail v. Beach, 10 Kan. 214; St. Mary’s College v. Crowl, 10 Kan. 442; Stahl v. Educational Association, 54 Kan. 542, 38 Pac. 796; Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977; Clements v. Ljungdahl, 161 Kan. 274, 167 P. 2d 603.
“2. That the moneys and credits here involved were not appropriated solely to sustain a religious institution or association within the meaning of Section 79-201, G. S. 1949 and the decisions of the Supreme Court of Kansas. Cases cited supra and National Council v. Shawnee County, 63 Kan. 808, 66 Pac. 1014.
“3. That the property here involved is not exempt frorh taxation and the relief sought by petitioner should be denied.”
In a preliminary way it may be noted that no attack is made on the findings of fact included in the report of our commissioner, and we are therefore relieved from examining any transcript of the record to determine whether the findings are supported by the evidence.
We first consider the plaintiff’s motion that we set aside the conclusions of law contained in the report of the commissioner and find that the property involved is exempt from ad valorem taxation, and in so doing shall follow, as nearly as may be, the order in which plaintiff presents its argument.
After presenting a general argument that the framers of our constitution were aware of the value of religious and moral education and the benefits which would accrue therefrom, they gave religious and educational institutions an exemption from taxation in exchange for those benefits; that the exemption is not a mere gift, but a payment to the people making up religious and charitable institutions who dedicate their lives to promote Christian and moral principles, and that the exemption is for a general public benefit, the statement of which finds support in Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344, and in many cases where that decision has been cited, the plaintiff then quotes that part of Art. XI, Sec. 1, of our constitution that “All property used exclusively for . . . educational . . . religious, benevolent and charitable purposes . . . shall be exempted from taxation,” and makes an analysis of the meaning of the underscored words.
In connection with the word “used”, plaintiff’s main contention is that the employment of property for a purpose is the use of that property and although recognizing that many articles sold by it can be used for secular purposes, the purchase and sale of all is to promote religious education and religion. For present purposes it may be conceded that the end result is that plaintiff expects to use the gain resulting from purchases and sales for religious purposes but the primary use is to employ the articles handled for sale. The anticipated gains are to be used for plaintiff’s advancement of religion.
In connection with the word “exclusively”, plaintiff seems perplexed because that word has not been explicitly defined in any of our previous decisions, and it quotes a portion of a definition from Webster’s New International Dictionary, Second Edition. The word is an adverb form of the verb “exclude” defined in the above dictionary as “To shut out; to hinder from entrance or admission; to refuse participation, enjoyment or inclusion,” and as used in the adverb form means, among other things, to the exclusion of all others, without admission of others to participate, only, solely, purely. We think it implicit in our many decisions where the word has been used, it is in the sense that the use made must be only, solely, and purely for the purpose stated in our constitution, and without admission to participate in any other use. Numerous definitions of like content may be found in Words and Phrases, Permanent Edition. We have previously noted that the primary use of the property was to sell it and the secondary use was to use the gain for religious purposes. We cannot say the use here was exclusively for a religious purpose.
We do not believe it necessary to discuss extensively the meaning of the word “religious.” It is the adjective form of the word “religion” defined by the above dictionary as being an apprehension, awareness or conviction of the existence of a supreme being controlling one’s destiny. For present purposes there can be no doubt that the plaintiff’s operations are conducted in large part for an ultimate religious purpose.
Nor are we presently concerned with the word “shall” as to whether as used it means mandatory or discretionary, for we are of the opinion that if other necessary elements for exemption from taxation are present, no discretion to withhold the exemption exists.
Plaintiff further states that in construing a constitutional provision a court is governed not by what the framers might have meant to say but by what they did say, and that the language of the constitutional provision under consideration is clear and unambiguous. Plaintiff also directs attention to some of our decisions where it has been said that property to be exempt must be used directly, immediately and exclusively and argues that these decisions expand the constitutional mandate. We shall not dwell on the language used nor discuss whether the italicized words were used only as emphasis, for, in any event the three cases cited, i. e., Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344; St. Mary's College v. Crowl, Treasurer, &c., 10 Kan. 442; and Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005, are but a small part of our many decisions dealing with exclusive use.
Plaintiff also contends that in any event its moneys and credits are exempt from taxation under G. S. 1949, 79-201, reciting, in part, that “All moneys and credits belonging exclusively ... to religious . . . institutions . . . appropriated solely to sustain such institutions . . .” shall be exempt from taxation. The difficulty with this claim is that under the findings of fact the moneys and credits were not appropriated to support the institution, but on the contrary were the funds used to pay salaries and operating expenses and for the purchase of merchandise for resale.
We find it unnecessary to review our many decisions dealing with exemption from taxation, a complete list of which may be found in the annotations to Art. XI, Sec. 1, as it appears in the General Statutes of 1949. Our statutes provide that all property not expressly exempt therefrom, shall be subject to taxation (See G. S. 1949, 79-101) and it is well settled that taxation is the rule, exemption is the exception, and one claiming an exemption must clearly disclose his right thereto. See e. g., Clements v. Ljungdahl, 161 Kan. 274, 167 P. 2d 603; Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 254 P. 2d 830; Runbeck v. Peterson, 177 Kan. 314, 279 P. 2d 233, and the cases cited in each. It was so held in Stahl v. Educational Assoc'n, 54 Kan. 542, 38 Pac. 796. In that decision, which involved claimed contract rights under a charter granted by the territorial legislature in 1858, this court disposed of a case where the facts were that the association was devised a lot in Emporia on which there was a house. The association offered the property for sale but pending sale rented it, the rents and profits being held for the purpose of education and in support and maintenance of Baker University. The association insisted that although the property was not actually occupied or used for the exclusive support of religion or education, yet as the rents or profits were applied exclusively for the purpose of education the property was exempt from taxation. In disposing of the contention, this court said in part:
“. . . If we were to construe the charter of the association as exempting from taxation real estate occupied by a tenant, because the rents or profits are applied ‘for the exclusive purposes of religion or education,’ then, under its charter, the association could receive and hold large amounts of property, which it could invest in business or loan at interest without paying taxes thereon, if the profits or interest were applied to the designated purposes. If the association might do that, it could go farther, and operate a bank, a store, or any other enterprise, which it had obtained by devise, or otherwise, if the profits were applied exclusively to the purposes of religion or education. Such evidently was not the intention of the legislative assembly of the territory. It was said in Washburn College v. Comm'rs of Shawnee Co., 8 Kan. 344, that
" ‘The accumulation of large amounts of untaxed property by educational, charitable, religious and other institutions is contrary to the fundamental rule requiring an equal rate of assessment and taxation.’” (1. c. 550.)
It may be conceded that the last cited case is distinguishable from the instant case but the analogies to be drawn from it support the conclusion previously indicated that the property is not being used exclusively for religious purposes. In our view the most that can be said is that plaintiff is conducting a mercantile institution at Wichita, and that the profits derived therefrom are being used for religious purposes.
We find it unnecessary to review our many cases in which the constitutional provision has been considered, including those re ferred to in our commissioner’s report and not previously mentioned. Nothing in them can be said to support a contention that an educational or religious organization may engage in a business activity and because profits from operation thereof are devoted to educational and religious purposes that the stock of merchandise, fixtures and funds used in conducting the business are exempt from taxation.
In our judgment plaintiff has failed to show that the property subjected to taxation was exempt therefrom. It therefore follows that the plaintiff’s motion that the commissioner’s conclusions of law should be set aside and the property be declared exempt from taxation should be denied, and that the defendants’ motion that we approve the report of the commissioner and adopt his findings of fact and conclusions of law should be sustained.
On motion of the plaintiff setting forth requisite facts, it is ordered that John L. McNair and Ira C. Watson be substituted in place of Dale A. Fisher and O. W. Schwalm as parties defendant.
And it is further ordered and adjudged that the plaintiff be denied the relief for which it prayed and that judgment be rendered for the defendants. | [
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The opinion of the court was delivered by
Wertz, J.:
Defendant was charged, tried and convicted of felonious assault with intent to kill or maim Henry Miller, as defined by G. S. 1949, 21-431. Thereafter he perfected an appeal specifying error in particulars which will be discussed later.
Defendant William Lee Hanks and his wife, Phyllis, were divorced in the year 1954. Before her divorce became final, she married Henry Miller, the complaining witness in this action. However, they did not live together. Phyllis lived with her two small children on her grandfather’s farm several miles east of El Dorado. Defendant saw Phyllis and the children occasionally. Miller also visited her on frequent occasions and assisted her with the chores on the farm. Ill feeling had existed between defendant Hanks and witness Miller for several years. At 11 p. m. on the night of the assault, defendant, Phyllis and Laymon were sitting in the front seat of defendant’s automobile at the farmhouse. Phyllis was under the wheel, defendant immediately to her right, and Laymon next to him.
About 10:30 p. m., Henry Miller left El Dorado and drove out to see Phyllis. She was not home, and on his return to El Dorado he saw her pass in defendant’s car. He turned around to go back to the farm and drove around a four mile section. He saw defendant leave the farmhouse. Miller turned his car back to a schoolhouse and waited about fifteen minutes. He parked his car and walked approximately a quarter mile to Phyllis’ house. He noticed defendant had returned and was sitting in the automobile. He walked up to the left side of the car, pulled the door open and put his hand on Phyllis’ shoulder. Laymon jumped out of the car and a fight ensued between Miller and Laymon, who shot at Miller, the bullet grazing his cheek. Miller subdued Laymon and returned to the automobile. Defendant got out of the car with a loaded pistol, released the safety and shot Miller in the jaw, the bullet lodging near the spine, causing severe permanent injury. As Miller lay on the ground, Phyllis said, “We must get him to the hospital.” Defendant said, “No, let him lay there.” Defendant testified after the shooting that Miller asked him for help and defendant refused, saying if he had been shot, Miller would have let him lay there the same way; that Laymon then talked him into taking Miller to the hospital, and they did so. Defendant and Laymon, then in company with their attorney, went to the county jail where defendant turned the pistol over to the night jailer.
Error is assigned upon an order allowing the endorsement of the names of four witnesses upon the information when the case was called for trial, and in refusing a continuance after such endorsement had been made. Two of the witnesses endorsed did not testify. The third was a deputy sheriff to whom defendant’s attorney turned over the gun on the night of the assault. The state attempted to identify the gun by this witness and, in doing so, defendant asked the trial court for permission, which was granted, to make the witness his own, and proceeded to interrogate him as his own witness. Under the circumstances, defendant cannot now complain about the witness’ name not being endorsed on the information. Moreover, no attempt was made by the county attorney to introduce the gun in evidence. The gun was later identified by the defendant after he took the stand in his own defense. The fourth witness was a photographer who attempted to identify a picture he had taken of the complaining witness, Miller, at the hospital some time after the assault. The witness was unable to identify the defendant, and the picture was not offered in evidence. Inasmuch as the two witnesses who did testify merely attempted to identify exhibits which were not introduced, their testimony became ineffectual, and the defendant was not prejudiced thereby. Under the circumstances of this case, it was within the discretion of the trial court to permit the endorsement of the names, as held in repeated decisions of this court, and this discretion appears to have been properly exercised. (State v. Jackett, 85 Kan. 427, 116 Pac. 509; State v. Tassell, 87 Kan. 861, 126 Pac. 1090; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001; State v. Thyer, 143 Kan. 238, 53 P. 2d 907; 2 Hatcher’s Kansas Digest [Rev. Ed.], Criminal Law, §§62 and 110.)
Defendant next contends the court erred in overruling his motion to dismiss at the conclusion of the state’s evidence, on the theory the evidence disclosed that defendant was merely defending himself from an attack by Miller. Whether Miller was an aggressor and whether defendant was merely defending himself were questions of fact for the jury under the evidence in the case. Defendant’s plea of self-defense was ably covered by the trial court’s instructions to the jury. It is the rule, subject to some exceptions not involved in this case, that in criminal cases it is never proper for the court to take a question of fact away from the jury and to decide it itself. (State v. Truskett, 85 Kan. 804, 811, 118 Pac. 1047.) A review of the record discloses ample evidence to sustain the charge and the lesser included offenses thereunder.
Defendant further contends that the court erred in giving certain instructions to the jury. The gist of his argument is that he was charged in the information, under G. S. 1949, 21-431, with felonious assault with intent to kill or maim, and that the trial court, in addition to instructing under this section, also instructed under section 21-434, on assault with intent to commit a felony, to wit, manslaughter, and under section 21-435, on maiming, wounding or causing great bodily harm, under circumstances which would constitute murder or manslaughter if death had ensued, contending that an information charging assault with intent to commit murder will not sustain conviction for an assault with intent to commit manslaughter, citing as authority, State v. White, 41 Ia. 316, and People v. Lilley, 43 Mich. 521, 5 N. W. 982. This is not the rule of law in this state. These cases were dealt with and thoroughly discussed and distinguished in State v. Murray, 83 Kan. 148, 161, 162, 163, 110 Pac. 103. Subsequently, on rehearing, the supreme court of Iowa in State v. White, 45 Ia. 325, held that an assault to commit manslaughter is included in an assault to commit murder, and an indictment of the latter offense will sustain a conviction for the former. We have held that sections 21-434 and 21-435 cover lesser included offenses in an information charging assault with a felonious intent under section 21-431, and when the evidence in the case justifies the court’s instructing on the respective statutes, it is its duty to do so. (State v. Davis, 169 Kan. 251, 218 P. 2d 215.) Other citations of authority may be found in the annotations under the respective sections of the statute. In the instant case, the court did not err in instructing on the respective statutes, and defining the words “murder” and “manslaughter”.
Defendant further contends the court erred in not instructing the jury that defendant’s counsel could not properly take the witness stand unless he withdrew from the case. There is nothing in the record to indicate that counsel offered to testify, nor that it was necessary for him to do so. There is no merit to this contention.
Defendant next contends the trial court erred in admitting and rejecting certain testimony. The record has been carefully examined and we find nothing in the contention which would justify a reversal of this case.
Defendant also contends the court erred in overruling his motion for a new trial on the ground of newly discovered evidence. He submitted an affidavit of Dr. Cloyes, attempting to show that the bullet fired by defendant entered Miller’s lower jaw, passing posterially through his neck. There was no showing of diligence in procuring such testimony at the time of the trial. The evidence, at most, was merely cumulative and the court did not err in overruling his motion for a new trial. Other contentions have been examined and- found to be without merit.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order denying plaintiff’s motion to set aside an instrument, executed by plaintiff (hereinafter referred to as Beverly), referred to as a “Relinquishment” and to change the custody of the minor child of the parties.
The facts, so far as it is necessary to state here, are as follows: On September 3,1952, defendant (hereinafter referred to as James) was granted a divorce from Beverly and awarded the custody of their small son, Lance Kerwin, for a period of six months; thereafter Beverly was given an opportunity to show her ability to take care of him. Neither party was found to be unfit to have his custody and control. The divorce decree granted the maternal grandparents the right of visitation and permitted them to have Lance in their home at stated intervals.
On August 15, 1952, two weeks before Beverly and James were divorced in Sedgwick County, Beverly married Donald Hart in Yuma, Arizona. Hart was a member of the Naval Forces. Early in 1953, Hart was transferred to Pearl Harbor for duty, and Beverly went with him. Shortly after they arrived in Honolulu and on March 18, 1953, they were remarried since they “declared” their marriage in Yuma, Arizona, “illegal.” They have made their home in Honolulu since that time.
On May 24, 1953, a son, Donald, was born; they are also the parents of a small daughter. Five months after the divorce was granted, Beverly returned to Wichita to visit her parents. While there, and on January 29, 1953, she agreed with James that he was to continue to have the custody of Lance until June, 1957, with the right of visitation by the maternal grandparents as provided in the divorce decree. The record does not disclose whether this agreement was submitted to or approved by the district court. Between March 16, 1953, and October 7, 1953, various motions were filed in the divorce action by the maternal grandparents for the citation of James, accusing him of contempt; seeking to change the order of custody, and to modify the order of custody. These were heard by the district court. Since they are not involved in this appeal no further mention will be made of them except to say Beverly was not present when they were heard, and the custody of Lance was not changed.
During October, 1954, Beverly again returned to Wichita to visit her parents and to see her son. She remained there until January 8, 1954, when she returned to Honolulu. During this visit she saw Lance and had him with her approximately one-half the time although he did not stay with her and her two children overnight. She made no objection to this arrangement. Beverly and James discussed tire custody of Lance on several occasions. The result of these conversations was that on the evening before Beverly left Wichita to return to Honolulu, she took Lance to the home of James’ parents in Wichita and while there signed and acknowledged an instrument entitled “Relinquishment.” This instrument recites, in effect: that Beverly is of the opinion the best interest of Lance would be served if he is raised by James; that she “relinquish all her rights to said child,” and agrees and consents that James be granted full custody and control of Lance; that she enters her appearance and waives notice of any motion filed by James to change custody of Lance in conformity with the Relinquishment, and consents that the court enter an order giving James full custody, free from any right of Beverly or her parents.
On January 14, 1955, the district court, upon motion of James, granted him full custody of Lance, free from any right of Beverly or her parents. Previous orders of the court were modified accordingly. On February 12, 1955, Beverly filed a motion to place the custody of Lance with her, and to set aside the Relinquishment. This motion was fully heard by the district court on May 9 and 16, 1955, and denied. Beverly has appealed.
Beverly contends the district court erred in overruling her motion to set aside the Relinquishment and of refusing to change the custody of Lance from James to herself.
We shall first consider the legal effect of the so-called “Relinquishment.” As we view this instrument it can only be considered as evidence of Beverly’s inclination of what she believed to be the best interest and welfare of her son. That it is not a contract between the parties, is clear. At most, it is a statement by Beverly to the district court and to all parties concerned that she is of the opinion Lance’s happiness and welfare will best be served if he lives with his father; she agrees that James be granted full custody of him, and consents that the district court may make an order placing her wishes in effect. That she had a right to advise the district court of her desire for Lance’s welfare and best interest cannot be questioned, but she cannot, in this action, “relinquish all her rights to said child,” as stated in the instrument. In the first place, children are not subject to gift as is property. (Chapsky v. Wood, 26 Kan. 650; In re Kailer, 123 Kan. 229, 255 Pac. 41; Tucker v. Finnigan, 139 Kan. 496, 32 P. 2d 211; In re Jackson, 164 Kan. 391, 190 P. 2d 426.) Secondly, nothing short of a finding of unfitness (G. S. 1955 Supp. 60-1510), a valid adoption decree (G. S. 1949, ch. 59, art. 21), or a juvenile court proceeding (G. S. 1949, ch. 38, art. 4), will deprive a parent, by his own act, of his right or permit him to escape his responsibility to his minor children. Thirdly, in a divorce action the district court, by statute (G. S. 1955 Supp. 60-1510), has full jurisdiction of the minor children of a marriage and is directed to make provision for their custody, support and education. This is a continuing duty. It is the court which grants or denies custody, not the parents. Neither may escape their parental duty by relinquishing to the other all rights to their minor children. Circumstances might arise which would necessitate a change of custody from one parent to the other. In such event, the district court should be free to act as the circumstances require. In this case one of the parents was deprived of Lance’s custody — the sad experience in many divorce cases — but the order is always subject to change, the burden being upon the other parent to show that custody should be changed. (White v. White, 160 Kan. 32, 159 P. 2d 461.) In Duffy v. Duffy, 176 Kan. 112, 268 P. 2d 931, we said:
“. . . A court order conferring the custody of a child upon one parent or the other is not a finality in the same sense as a final judgment in an ordinary lawsuit. (Janney v. Janney, 159 Kan. 230, 232, 154 P. 2d 131; Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076; Kamphaus v. Kamphaus, 174 Kan. 494, 256 P. 2d 883.) In an unbroken line of decisions of this court it has been held that the jurisdiction of the district court over custody of minor children in a divorce action is a continuing jurisdiction, and the court may on proper motion and notice modify and change any order previously made providing for such custody, whenever circumstances are shown which make such modification proper. (Powell v. Powell, 173 Kan. 435, 249 P. 2d 630; Decker v. Decker, 171 Kan. 380, 233 P. 2d 527; Maston v. Maston, 171 Kan. 112, 229 P. 2d 756, and other cases cited under G. S. 1949, 60-1510, and G. S. 1953 Supp., 60-1510.)” (p. 115.)
It is evident the district court concluded that Beverly signed the instrument freely and voluntarily; that she was fully aware of its purport, and that no undue advantage was taken of her. No doubt Beverly was anxious to make some permanent arrangement for Lance’s welfare before she returned to Honolulu — at least so long as she was living outside the continental United States, and did so by advising the district court that James could have full custody of their son.
With respect to Beverly’s contention the district court erred in denying that part of her motion to change custody, we adhere to the oft-times repeated rule of this court that whether the custody of minor children will be changed rests in the sound discretion of the district court, and unless the district court abuses its discretion, the rule will not be disturbed on appeal. In Kamphaus v. Kamphaus, 174 Kan. 494, 497, 256 P. 2d 883, the court said:
“. . . It is elementary that whether a child custody order will be changed or modified rests in the sound judicial discretion of the trial court and that its order will not be disturbed on appeal unless the record clearly discloses the court abused its discretion. (Dodd v. Dodd, 171 Kan. 46, 229 P. 2d 761; Bierce v. Hanson, supra, p. 429.)”
The fact that Beverly is the mother of Lance; that she has not been found unfit to have his custody, and that he is a child of tender years, does not necessarily entitle her to his custody. In Bierce v. Hanson, 171 Kan. 422, 427, 233 P. 2d 520, we said:
“Appellant stresses the recognized rule that a mother, absent a finding of unfitness, ordinarily is .entitled to the custody of a child of tender years. We adhere to that rule. This court frequently has been confronted with such cases. It is unnecessary to review our numerous decisions on the subject. In Travis v. Travis, 163 Kan. 54, 180 P. 2d 310, it was well said: '
“ ‘Appellant, however, does direct our attention to other authorities, which she contends supports the proposition that where she has not been found to be unfit, the custody of a young child should be awarded to her. We have examined these authorities, but no purpose will be served in analyzing each of them. It is correct to say that unless the mother is shown to be unfit, she may properly be awarded custody of her minor child (19 C. J. 345; 17 Am. Jur. 517) but that premise does not necessarily result in a conclusion that an order giving custody to the father or providing for alternate periods of custody is erroneous.’ (p. 58.)
“Obviously the foregoing statement is sound doctrine and must be the rule. If the rule were otherwise a trial court would be deprived entirely of exercising any discretion with respect to the best interests of the child where a child or children of tender years are involved.”
The record has been thoroughly examined. We do not think the district court abused its discretion in denying Beverly’s motion to set aside the Relinquishment or to change the custody of Lance. On the whole, we find no error in the case. The judgment is affirmed.
Robb, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
Defendants appeal from an order of the trial court overruling their demurrer to plaintiff’s evidence introduced in an action for damages based on negligence.
Since no question was raised about the pleadings, they need not be set out, and we will proceed directly to the question of whether plaintiff’s evidence sufficiently constituted a cause of action based on negligence when challenged by defendants’ demurrer. We shall continue to refer to the parties as plaintiff and defendants.
Early in the proceedings it was admitted by both the answer and statements of defense counsel that David Couch was at the time material hereto the agent and employee of defendants and was acting as labor steward for them. The term “labor steward” had to do with relations between the labor union and defendants and had no bearing on any of the issues between the parties to the lawsuit.
Plaintiff, a pipe or steam fitter, was an employee of a plumbing company which was installing boilers in the heating system of the new high school building at Turner under a direct contract with Turner High School District No. 2. Defendants had the contract to erect the buildings, but there was no contractual relationship between the plumbing company and defendants. To make the boiler installation and to anchor the legs of the boiler properly it was necessary to bore holes into the concrete floor with an electric drill. Plaintiff had no heavy duty electric extension cord to connect to his drill so he went to the second floor of the building where electricians were using a long extension cord and after conversation with two different people, the last one being David Couch, he got the cord. From where plaintiff was going to use the electric drill, the nearest available electric plug was across the boiler room, up through a window, and across an adjoining room. There was some conflict as to how long the cord was but it covered the distance. Plaintiff was drilling the last necessary hole when the cord was suddenly jerked. This caused plaintiff to lose his balance. He struck his left elbow on the leg of the boiler. There was a great deal of noise caused by the construction operations of a number of other workmen near the place where plaintiff was working in the basement. Before the cord was jerked plaintiff heard no one yell and afterwards he went outside, up a ramp and Couch was there. The cord had been knotted so it would not come out of the plug and when plaintiff saw Couch he was trying to pull the cord through the window but plaintiff had to disconnect it and then Couch started pulling it through the window. Couch stated that he had to have the cord right away; that he had some concrete coming and he had to use it for the vibrator. The vibrator was later explained to be a machine to settle the concrete in upright forms by the vibrations of the machine.
On cross-examination plaintiff testified that some bricklayers were encasing the same boiler that plaintiff was anchoring. Cross-examination also showed that the cord had been used by electricians on the job who were not the employees of defendants and plaintiff himself had used it a number of times off and on during the two or three months he had worked on the job. On redirect examination plaintiff stated the cord was used all over the job and “was sort of common property.”
Couch testified he just pulled the cord after calling into the boiler room that he had to have defendants’ cord and someone replied, “All right,” whereupon he pulled the cord on out. The cord was the property of Winn-Senter and Couch had been directed by his labor foreman to get the cord. Couch was not positive as to the time or particular days when different matters occurred as to when the cord was pulled, or when plaintiff mentioned to him about the elbow injury. He denied that he had conversed with plaintiff about plaintiffs use of the cord, or that plaintiff came to him immediately after his pulling the cord but he thought the cord was being used because it was connected and running through the boiler room. Couch testified on redirect examination that plaintiff came on the job one morning and told him that when he (Couch) had pulled that cord it caused plaintiff to bump his elbow. There were a number of discrepancies between the testimony of the two witnesses for plaintiff and these were well argued by defendants.
At the conclusion of plaintiff’s evidence a demurrer was directed thereto as to its sufficiency to set out a cause of action, which was overruled by the trial court. The instant appeal followed.
In an appeal from a ruling of a trial court on a demurrer testing the sufficiency of the evidence this court has invariably held that all evidence will be considered as true and the court will not weigh such evidence even though there may be certain contradictions and discrepancies between the direct and cross-examination or among the witnesses. All favorable inferences which may reasonably be drawn therefrom will be given to a plaintiff’s evidence and if there is any evidence which sustains his case, the demurrer will be overruled. (Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438; Maust v. Ioerger, 177 Kan. 558, 280 P. 2d 566.)
In view of the stipulation that Couch was the agent and employee of defendants, that point does not need to be labored herein. While defendants set out in the record the fact that Couch had no authority to loan the cord, we do not feel this one fact alone should vitiate the trial court’s ruling on the demurrer in this case. The principal point is whether plaintiff showed facts sufficient to constitute actionable negligence on the part of defendants. It is true that such negligence had to be established, if at all, by circumstances because no one saw Couch jerk the cord. Regarding this feature, and giving every favorable inference to plaintiff’s evidence, we observe the evidence showed that after the cord was jerked, plaintiff went outside to see what was wrong and Couch was up there trying to pull the cord through the window. The cord was knotted so as not to allow a disconnection from the plug, plaintiff disconnected it, and Couch started puffing the cord through the window.
Although the evidence is circumstantial since there were no actual eyewitnesses who saw Couch jerk the cord, we believe it is sufficient to pass the test prescribed by this court in former decisions that a fact may be proved by circumstances when direct evidence is not produced. The standard is set up in many cases, but we will cite only a few. (Jelf v. Cottonwood Falls Gas Co., 162 Kan. 713, 178 P. 2d 992; Wills v. Lehigh Portland Cement Co., 165 Kan. 546, 195 P. 2d 574; In re Estate of Modlin, 172 Kan. 428, 241 P. 2d 692; In re Estate of Hayden, 174 Kan. 140, 254 P. 2d 813.)
Defendants contend that hearsay evidence could not be considered as part of the res gestae and, therefore, its admission was error and they further contend that plaintiff was only a licensee in using the cord. We can see no merit in those contentions on this appeal in view of what we have herein said regarding a cause of action being sufficiently proved to withstand an attack by demurrer. (Balthazor v. B & B Boiler & Supply Co., 169 Kan. 188, 192, 217 P. 2d 906.)
The order overruling defendants’ demurrer to plaintiff’s evidence is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
Petitioner, Willis O. True, Jr., presently confined in the state penitentiary, has appealed from an order of the district court of Leavenworth County denying his application for a writ of habeas corpus.
Ordinarily we would be justified in dismissing the appeal for failure to comply with rules pertaining to the filing of abstracts and briefs. However, as petitioner is confined, and is not represented by counsel, we will consider the appeal on such record as there is before us. That record discloses the following:
On November 27, 1950, while confined in the county jail of Cowley County awaiting trial on a charge of forgery, petitioner broke jail, and in so doing committed a felonious assault upon one Henson. He was shortly apprehended.
On December 1,1950, an information was filed charging him with the offense of forgery in the fourth degree (G. S. 1949, 21-620). The offense was alleged to have occurred on November 3,1950. On December 1, 1950, he entered his plea of guilty to such charge and was sentenced to confinement in the penitentiary for a period of not to exceed five years (G. S. 1949, 21-631). These proceedings were in case No. 5234.
On December 5, 1950, an information was filed charging petitioner with the offense of felonious assault upon one Henson (G. S. 1949, 21-434). This offense was alleged to have occurred on November 27, 1950. On December 6, 1950, petitioner entered his plea of guilty to this charge and was sentenced to confinement in the penitentiary for a period of not to exceed five years (G. S. 1949, 21-434). These proceedings were had in case No. 5238.
On December 5, 1950, an information was filed charging petitioner with the offense of jail breaking (G. S. 1949, 21-736). The offense was alleged to have occurred on November 27, 1950. On December 18, 1950, petitioner entered his plea of guilty to this charge and was notified in writing that on December 21, 1950, evidence would be introduced to establish that petitioner was an habitual criminal and should be sentenced accordingly. On the date mentioned the court, having before it the convictions in the two previously mentioned cases, sentenced petitioner to confinement in the penitentiary for a period of fifteen years, under the provisions of G. S. 1949, 21-107a, which provides that every person convicted a third time of felony shall be confined in the penitentiary for a period of not less than fifteen years. These proceedings were had in case No. 5236.
Petitioners contentions as to why he believes himself entitled to release from custody are somewhat confusing, but, if we understand them correctly, he concedes that he has been convicted of two felonies, but not three, and he claims that the fifteen-year sentence in case No. 5236 is utterly void.
As we read this record, the question of the correctness and propriety of the fifteen-year sentence in case No. 5236 is not presently before us. The record shows that petitioner was sentenced to confinement for not to exceed five years on the fourth degree forgery charge in case No. 5234. He states that he has completed that sentence. It may be that he has, but, in any event, of a certainty he has not completed the sentence of not to exceed five years on the conviction of felonious assault in case No. 5238. Such being the case, he is not now entitled to release from custody, and it therefore follows that the judgment of the lower court must be and the same is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order of the district court striking from the files an amended petition for the allowance of a demand against the estate of Joseph Forster, deceased, and arises out of the following.
Joseph Forster died May 15,1952, and proceedings were instituted in the probate court to administer his estate. Notice to creditors was first published July 24,1952.
On December 3, 1952, Gertrude Forster filed her petition in the probate court for the allowance of her demand for $5,475.00 for services performed by her for the deceased between the dates of May 15, 1949, and May 15, 1952, at the rate of $5.00 per day.
On March 16,1953, Gertrude Forster filed her petition in the probate court for the allowance of her demand for services performed by her at the request of Joseph Forster in caring for Clara Forster and Barbara Forster between the dates of July 3, 1939, and September 13, 1948; that she had no specific agreement as to amount but that the reasonable value to Joseph Forster individually, as trustee for Clara Forster and Barbara Forster, was $14,630.00 during the above dates.
The two claims were heard in the probate court which rendered judgments not of present importance. The petitioning claimant and the administrator each appealed to the district court with respect to the judgments. Insofar as the petition filed March 16, 1953, is concerned, the district court found the claim asserted was barred by the statute of limitations, and on appeal to this court the judgment was affirmed in an opinion filed May 7, 1955. See In re Estate of Forster, 178 Kan. 120, 283 P. 2d 491.
Insofar as the claim asserted in the petition filed on December 3, 1952, was concerned, there had been no hearing in the district court. On May 11,1955, the claimant filed in the district court an amended petition for the allowance of her claim alleging an indebtedness of Joseph Forster to her in the amount of $20,233.00 as compensation for her services at $5.00 per day between May 15, 1949, and May 15, 1952, and at $4.00 from July 3, 1939, to May 15, 1949.
In due time the administrator filed his motion that,the amended petition be stricken from the files for four reasons: (1) That petitioner filed her claim in the probate court on December 3, 1953, covering a period from May 15, 1949, to May 15, 1952, the claim was heard, appeal taken to the district court, and was still pending; (2) that on March 16, 1953, petitioner filed her claim for $14,630.00 for services rendered from July, 1939, to 1948, and that the claim was heard, the decision thereon appealed to the district court, which held the claim was barred; that on appeal to the supreme court the judgment was affirmed and the claim was res adjudicata; (3) that by her amended petition, petitioner had attempted to create a new claim in the district court, contrary to the probate code; that die amended petition was in fact a new claim and the district court was without jurisdiction; and (4) the amended petition was filed without motion or application to the court to file the same and was an attempt to file in the district court a claim which is one that was res adjudicata and barred.
The district court heard the motion to strike and sustained it and in due time the petitioner perfected an appeal to this court, specifying as error that the lower court erred in striking her amended petition and in failing to consider G. S. 1949, 59-2408.
Appellant first directs attention to the above statute which provides that upon filing of the transcript (from the probate court) the district court shall hear the appeal and in so doing shall have and exercise the same general jurisdiction and power as though the controversy had been commenced in such court and as though such court would have had original jurisdiction, and stresses the provision that the district court shall allow and may require pleadings to be filed or amended. She contends that she had an absolute right to file her amended petition, and that the claim asserted is not the same as her claim filed in the probate court on March 16, 1953. Her argument is that there is no disagreement that a cause of action was stated for the three years immediately preceding Forster’s death; that the claim as originally filed referred to Barbara and Clara Forster’s funds for services rendered between July 3, 1939, and September 13, 1948, a matter not referred to in the amended petition, and that the determination of the original claim did not adjudicate the claim asserted in the amended petition. Appellant cites no authorities in support of her contention.
We shall not dwell on the fact that appellant filed her amended petition in the district court without first seeking permission to do so, but for our purposes shall assume that the amended petition was properly filed.
An analysis of the petition originally filed on March 16, 1953, shows claim was made against Joseph Forster individually for services rendered between July 3, 1939, and September 13, 1948, in taking care of Clara and Barbara Forster, and that as trustee for them Joseph Forster had funds which should be charged therewith. It is true the amended petition omits reference to Clara and Barbara and states a period of from July 3, 1939, to May 15, 1949, an extension of about eight months. In essence this claim, if not exactly the same claim as was considered in In re Estate of Forster, supra, covered substantially the same period of time, was for services rendered to Joseph Forster in his lifetime, and insofar as it covered to September 13, 1948, was fully adjudicated in the district court by its judgment of July 15, 1954, and affirmed by this court in In re Estate of Forster, supra. If it be considered that a new claim was filed for the period between September 13, 1948, and May 15, 1949, it may be observed that the action, being based on an oral contract, was barred by the general statute of limitations (G. S. 1949, 60-306, Third) because not asserted within two years, and, if not otherwise barred, was not asserted in the probate court within nine months after the first published notice to creditors (G. S. 1949, 59-2239).
The trial court did not err in striking the amended petition from the files.
The appeal to the district court from the ruling of the probate court on the claim asserted in the petition filed in the probate court on December 3, 1952, remains for determination by the district court.
The ruling of the district court, striking the amended petition from the files, is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to establish a postnuptial agreement. Marshall A. Bradley, Sr., hereinafter referred to as Marshall, and Bessie Bradley, as Bessie, were married late in life. Both had children by prior marriages. Appellants Eliza Washington and Willie Barton were the daughter and granddaughter of Marshall Bradley, Sr., and devisees in his last will and testament. The appellee Wealthie Meador was the daughter of Bessie Bradley. Bessie died intestate, a resident of Wyandotte County, December 4, 1952. Her husband, Marshall, died testate, a resident of Ellis County, Texas, February 14, 1953. Administration was had upon the estate of Bessie in Wyandotte county. In due time, the administrator filed his petition for final settlement in which he requested the court to determine the heirs at law of Bessie to be her husband, Marshall, and her daughter, Wealthie Meador. To the administrator s petition for final settlement, Wealthie Meador filed objections and pleaded a postnuptial agreement between her mother, Bessie, and her stepfather, Marshall, wherein it was alleged they agreed that all property owned by the parties prior to their marriage would pass upon death to the children of the respective parties and that, in keeping with the agreement, Bessie assigned all her right, title and interest in the property of Marshall over to him, and that property was distributed to the heirs of Marshall.
In further keeping with the agreement, Marshall executed a deed and will conveying his interest in Bessie’s property to her and, as a result of the agreement, Bessie’s daughter was the sole and only heir at law of Bessie, and Marshall took nothing upon the death of Bessie.
Marshall Bradley, Jr., executor of the last will of Marshall, filed an answer alleging that Marshall died February 14, 1953, leaving a will dated January 11, 1953, which was admitted to probate in Ellis county, Texas, and subsequently admitted to probate in Wyandotte county, by which will Marshall devised all his property to Willie Barton and Eliza Washington, granddaughter and daughter, respectively. It was denied that a postnuptial agreement existed between Marshall and Bessie and, under the terms of Marshall’s will, they inherited an interest in the property in question. On the issues framed by the parties, the case was certified to the district court for trial.
At the conclusion of the evidence, the trial court rendered its judgment, finding all the issues generally in favor of appellee, Wealthie Meador, and specifically found that a postnuptial agreement was entered into between Marshall A. Bradley, Sr., and Bessie, his wife, during the lifetime of the parties; that it was valid and binding on the heirs of the parties; that Wealthie Meador was the daughter and sole heir of Bessie Bradley, deceased, and entitled to the property in question, and entered judgment accordingly. From an order overruling appellants’ motion for a new trial, they appeal. Their specifications of error may be summed up in one statement, i. e., that the judgment is contrary to and not supported by the evidence.
Appellants assert that there was no competent evidence in the record of a postnuptial agreement in writing or otherwise, save the mention of an “agreement” in a letter from Marshall A. Bradley, Sr., dated July 30, 1951, to James A. Meador, and in the testimony of Meador, which is a conclusion to the effect that Marshall told him specifically the same as was in the letter.
This is purely a fact case. The rule is well established in this state that the determination of issuable facts is no concern of the appellate court provided there is sufficient evidence on which the judgment is based. Moreover, a judgment on the facts made by the trial court will not be disturbed on appeal unless all the competent and credible evidence constrains a different conclusion. (In re Estate of Beeler, 175 Kan. 190, 194, 262 P. 2d 939, and cases cited therein.) In view of the well-established rules of law, we will summarize the evidence to determine whether it is sufficient to sustain the trial court’s judgment.
There was testimony to the effect that Marshall and Bessie entered into a contract wherein they agreed neither would share in the other’s property; that his property should go to his children, and her property to her daughter, Wealthie. Marshall sold his property, livestock and farm machinery in Texas and divided it with his children and grandchildren. He had four lots in Ennis, Texas, which were to be disposed of and divided with his children. Bessie did not want anything Marshall had in Texas, and he did not want any of her property in Kansas. On January 18, 1948, pursuant to the agreement, Marshall made a will which devised the whole of his estate to his wife. On February 19,1948, he made and executed a quitclaim deed to Bessie conveying whatever interest he had in the Kansas real estate to her. A letter written by Marshall to Bessie dated December 15, 1950, contained the following:
“You continue to write me 600 East Decatur Street, Ennis. Be sure and leave the place so Wealthie and her children will get it, because that was our agreement, and it holds good now and forever. I want to be sure because of the agreement, and I am satisfied with that.”
On July 30, 1951 Marshall wrote a letter to James Meador, husband of Wealthie, as follows:
“Reverend James A. Meador, 7-30-51, Colorado Springs, Colorado. While thinking of you and of your family, it pleases me to let you hear from me this morning. I feel nothing less than a Christian, yet leaning and trusting in Jesus and waiting for the end to come. Physically I am getting weaker; spiritually I am growing stronger. Here is what I want to tell you and Wealthie to see that no indebtedness comes against the place in Kansas City, Kansas. She, Bessie, can’t pay like taxes or other indebtedness, and I know as long as she keeps her health she will keep it straight, but who knows how long that will be, and she might be timid toward telling you her business and lots more I could tell you but wont now. Don’t think there is any difference between her and I. When we married we made an agreement. She would not let me take anything that me and my wife and children had bought, only just my clothes. She went before the law here in Ennis, Texas, and signed papers to that effect. When we built the house in Kansas City, I did the same. My children know it and are well satisfied and have to be. I didn’t know whether Bessie had told you all about it or not. Lots more I will say when I get an answer from you
Witness Meador testified that he had a conversation with Marshall in which he told him specifically the same thing as contained in the foregoing letter. While appellants contend this was a conclusion, there was no objection to the answer when made at the trial.
Andrew Lewis testified that he was acquainted with Bessie and Marshall as neighbors and, in a conversation, Marshall told him that if anything happened to him, his children were to get his property in Texas, and Bessie’s daughter, Wealthie, was to get her property in Kansas.
The trial court had the entire matter before it, saw the witnesses, observed their demeanor, heard the whole story, and its finding that the postnuptial agreement entered into between Marshall and Bessie during their lifetime was a valid agreement, binding on the heirs of the parties involved, is sustained by sufficient evidence. In considering the agreement in conjunction with Marshall’s will of January 18,1948, the quitclaim deed executed by him to Bessie, and the letters written by Marshall to Bessie and James Meador, and when interpreted they show the intention of each party to exclude the other from the right of inheritance to their respective properties.
Appellants contend that the quitclaim deed was erroneously admitted in evidence for the reason appellees had failed to prove delivery of the deed during the lifetime of Marshall. This objection is without merit for the reason that possession by the grantee of a deed, absolute in form, creates the presumption of delivery which can be overthrown only by clear and convincing evidence, and the burden of showing nondelivery is on the party who raises that issue. (Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209.) Appellants object to the admission of the will of Marshall, dated January 18,1948 on the ground that it was repudiated by his subsequent will which was admitted to probate in Texas. This evidence was admissible as tending to show that an agreement was made between the parties' and that Marshall intended to comply with the terms thereof.
Appellants further contend that the oral agreement made by the parties violated the statute of frauds. We are of the opinion that the separate writings, hereinbefore related, when construed together contained sufficient terms upon which the court could base its judgment that the contract was made between the parties, and was sufficient to satisfy the statute. (Schneider v. Anderson, 75 Kan. 11, 88 Pac. 525; Jordon v. Clark, 86 Kan. 509, 121 Pac. 345.)
Other contentions have been examined and found to be without merit. In view of what has been said, the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeal is from an order of the district court striking a part of defendant’s answer and arises under the circumstances later set forth.
Grant A. Stannard died testate on November 12, 1951, and on December 7, 1951, his widow, Faye C. Stannard, was appointed as the executrix of his will and estate. On June 23, 1952, Flossie May Reynolds filed her petition in the probate court for allowance of her demand against the estate of Stannard in which she alleged that on January 12, 1951, Stannard in his lifetime entered into an oil and gas lease with her, a copy of which was attached and made a part of the petition, which provided:
“ ‘It is a part of the consideration and covenants of this lease that the lessee will commence and drill a well with due diligence to the Wilcox Sand, unless oil or gas is found in paying quantities at a lesser depth’;”
that the decedent in his lifetime breached the agreement and his estate had wholly failed to comply with its provisions, and that no well was commenced or drilled to the Wilcox sand and no oil or gas was found in paying quantities at a lesser depth, and that petitioner had suffered damage in the amount of $20,000, the reasonable cost of drilling such a well, and petitioner asked that her demand be allowed for that sum.
We need note the oil and gas lease only to state that it is dated January 12, 1951, and that under it Flossie May Reynolds for a stated consideration of $1.00 and other good and valuable consideration leased a forty acre tract in Creek County, Oklahoma, to Grant A. Stannard for a term of one year for oil and gas purposes and that the last paragraph preceding the witnessing clause is the provision above quoted.
Faye C. Stannard, executrix, filed an answer in the probate court in which she admitted her residence, and for present purposes, denied generally. It may be noted her answer in the probate court contained no allegations similar to those stricken from her amended answer later mentioned.
As the result of a hearing in the probate court, the demand was allowed in the sum of $12,750 on May 6, 1953, and in due time and on May 28, 1953, the executrix appealed to the district court.
In the district court, with leave of the court, the executrix filed an amended answer containing a demurrer on the ground a cause of action was not stated, and admissions and denials not of present importance. The sixth and seventh paragraphs alleged:
“Sixth.
“Further answering in the alternative and without waiving any defenses hereinbefore pleaded, respondent alleges and states: That it was the duty of the petitioner to minimize and avert any claimed damages to herself or to her property after the alleged breach of the terms of said lease by the said Grant A. Stannard, Deceased, and this respondent. Notwithstanding the foregoing, said petitioner took no appropriate measures readily available to her to mitigate and avert any alleged damages claimed in her petition for allowance of demand, in that said petitioner did, and before any well had been commenced upon the property of said petitioner and on or about the 12th day of May, 1952, refuse a proposal of this respondent as executrix, for herself individually and other heirs of said decedent, to drill a well under a lease containing terms identical with the terms of the alleged lease attached to said petition and marked Exhibit ‘A’, except said proposal provided that a well would be commenced within sixty to ninety days in lieu of one year, and this respondent was at that time and at all times material thereafter, ready, willing and able to drill said well as aforesaid.
“Seventh.
“After said refusal of the proposal aforesaid, and on or about the 15th day of September, 1953, the petitioner granted an oil and gas lease to one R. C. Halliburton, the express consideration being $1.00, a copy whereof is hereto attached, marked Exhibit ‘A’, and made a part of this answer. By such act, petitioner further disabled herself from mitigating or averting her alleged damages. Respondent is informed and believes, and therefore alleges as a fact, said lease expired by reason of the fact no well was commenced upon the demised premises on or before September 15, 1954.
“Defendant is informed and believes, and therefore alleges as a fact, that subsequent to September 15, 1954, a well was drilled to completion on the property of petitioner, which well was and is a producing well.”
The claimant filed her motion to strike the amended answer for three reasons. The first is presently immaterial. The second was that the answer contained allegations in paragraphs six and seven that were inadmissible on the trial and prejudicial to claimant and the third was in the alternative that if the court should fail to strike the whole answer, all but the first sentence of paragraph six and all of paragraph seven should be stricken. The trial court sustained the motion as to the second and third reasons. Thereafter the executrix perfected her appeal to this court.
Before discussing the contentions of the parties we note the following. Appellant presents her contentions as though all of the sixth and seventh paragraphs of the answer had been stricken in their entirety, and indeed the ruling of the trial court was to that effect. The appellee presents her contentions as though all that was stricken of the sixth paragraph of the answer was that part after the first sentence, and that was what the third ground of its motion asked, and which the trial court sustained. In our opinion literally read the ruling of the trial court as reflected in the journal entry, is contradictory and conflicting. We resolve that conflict by holding that paragraph six of the answer was stricken only insofar as it contained allegations inadmissible on trial, and that the only part stricken is that following the first sentence, and that the allegation it was the duty of the petitioner to minimize and avert any claimed damages to herself after the alleged breach by Stannard, remains in the answer. The question then remains whether the portion stricken constitutes a defense or defenses which were improperly stricken.
Appellant directs attention to the general rule that one injured by reason of a breach of contract by another is bound to exercise reasonable care to avoid loss or minimize the resulting damage, and that to the extent the damage is the result of his active and unreasonable enhancement thereof or due to his failure to exercise such care and diligence he cannot recover, or, as sometimes stated, he is bound to protect himself if he can do so with reasonable exertion or at trifling expense and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided, as more fully stated in 15 Am. Jur. 420. She also directs our attention to Kansas decisions where that general rule has been recognized such as Swisher v. Beckett, 172 Kan. 711, 242 P. 2d 831, and authorities cited, and to Oklahoma decisions such as Smith-Horton Drilling Co. v. Brooks, 199 Okla. 63, 182 P. 2d 499, where it was held that one injured by another’s act must do that which an ordinary prudent person would do under similar circumstances to mitigate or lessen damages, although he is not required to unreasonably exert himself or incur an unreasonable expense. She recognizes that the general rule she relies on and the rule in Kansas and Oklahoma are fundamentally the same. She also cites Consolidated Cut Stone Co. v. Seidenbach, 181 Okla. 578, 75 P. 2d 442, and 15 Am. Jur. 802, in support of a contention that whether an injured person could have lessened his damages is a question for the jury or trier of the facts.
We need not dwell upon the above rules for it may be conceded they correctly state the law. Whether they are applicable to the present situation remains for consideration.
The duty of the injured party to minimize or lessen damage presupposes that he has been damaged. It has been held in Oklahoma that the measure of damages for breach of a contract for the drilling of an oil and gas well is the reasonable cost of drilling such well at the time and place fixed and to the required depth. See Dixon v. Dalton, 158 Okla. 178, syl. ¶ 2, 12 P. 2d 1108, and other Oklahoma cases cited in an annotation appearing in 122 A. L. R. 458, 460. And, although the facts therein must be considered, the same rule was followed by this court in the recent case of Gartner v. Missimer, 178 Kan. 566, 290 P. 2d 827. Under that rule where a contract for a consideration provided that a well was to be drilled on a particular tract of real estate within a fixed period of time, the damage from failure to drill became fixed at the expiration of the term and the injured party’s cause of action accrued.
In the situation presented by this appeal we are not called upon to decide whether the damage fixed by expiration of the term for performance may not, under particular circumstances, be subject to the duty of the injured party to mitigate or minimize the damage. What we are to decide is whether the particular matter pleaded and stricken may be urged as a defense.
With reference to the allegations in the sixth paragraph of the answer it may be observed that the substance thereof is that on May 12, 1952, which was four months after the lease had expired, the executrix of Stannard’s estate and his heirs, proposed to the claimant Reynolds that she give them a new lease on the real estate one of the considerations of which was that the lessees drill a well within sixty to ninety days. In other words, the executrix and the heirs offered performance only on conditions that they be granted new and additional rights. Had the offer been an unqualified one to drill the well, a situation might have been presented where the claimant could not arbitrarily reject, but that was not the case. Had the proposal made been accepted, it would have been detrimental to claimant for she would have done no more than exchange an accrued cause of action for another leasing and drilling contract prejudicing her own interests and not giving any more assurance of a well being drilled than she already had. The claimant had no duty to accept the proposal of the executrix and the heirs.
With reference to all of the allegations in the seventh paragraph of the answer it is to be observed first that the claim was filed in the probate court on June 23, 1952, was allowed in the probate court on May 6, 1953, and an appeal to the district court was perfected on May 28, 1953. The allegations are that the Halliburton lease was not made until September 15, 1953, almost four months after the case reached the district court, and that that lease expired September 15, 1954, no well being commenced. The copy of the lease attached to the answer discloses the lands were leased for the purpose of exploring for gas and oil. It did not require the drilling of a well but provided that if one was not commenced by October 15, 1953, the lease was null and void. The allegation of the answer that the lease expired September 15, 1954, conflicts with the terms of the lease as to date of expiration and the lease controls. The further allegation is that subsequent to September 15, 1954, a well was drilled which was a producer. Bearing dates in mind, we cannot discern how the allegations of the seventh paragraph can -have any bearing on any duty the claimant may have had to mitigate her damages.
Giving attention to the rule that a person injured by breach of a contract is bound to exercise reasonable care to avoid loss or minimize the resulting damage where he can do so with reasonable exertion or at trifling expense, as well as the dates of events urged, we are of opinion, as a matter of law, that the allegations stricken from the answer fail to disclose that the person injured failed in any manner to comply with the requirements of the rule and to state a defense.
In our opinion the trial court did not err in striking all that part of the sixth paragraph after the first sentence, and all of the seventh" paragraph of the answer, and its ruling so doing is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The basic question in this case is whether confinement of a defendant in the state penitentiary for a term less than life tolls a statute of limitation in favor of a plaintiff during the period of such confinement. Stated another way, the question is — may a defendant be sued while so confined? ■
For reasons which will hereinafter appear, we hold that such confinement of a defendant does not toll a statute of limitation in favor of a plaintiff — in other words, a defendant so confined may be sued.
On January 20, 1949, the Hartford Accident and Indemnity Company, plaintiff herein, issued its Bankers’ Blanket Bond in the amount of $20,000 to The Corbin State Bank by which, among other things, the bank, under the fidelity insuring clause of the bond, was insured against loss through any dishonest, fraudulent or criminal act of any of its employees.
On February 9,1951, plaintiff received written notice from the receiver of the bank that it had suffered a loss of approximately $39,-000, due to embezzlement by defendant Richards, the cashier.
On March 10, 1951, defendant entered a plea of guilty to the charge of embezzlement in the district court of Sumner County and was sentenced to confinement in the state penitentiary for a term of from three to fifty years. He commenced serving the sentence on that date.
On April 23, 1951, pursuant to its liability under the bond, plaintiff paid to the receiver of the bank the sum of $20,000, and on the same date received from the receiver an assignment of the bank’s claim against defendant in the sum of $18,300.71.
On August 1, 1953, defendant was released from the state penitentiary.
On March 16, 1954, plaintiff filed this action in which it seeks recovery from defendant of the embezzled funds.
After setting out the facts substantially as above related, the petition, in the first cause of action, alleges that by reason of its payment of $20,000 to the receiver of the bank plaintiff is subrogated to all of the rights of the bank, and that by reason thereof recovery is sought for the amount of such payment, together with interest.
The second cause of action seeks recovery from defendant in the amount of $18,300.71, and is based on the written assignment heretofore mentioned.
Defendant demurred to the petition on the ground that pleading fails to state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant.
This demurrer was overruled and defendant has appealed.
With respect to the first cause of action, plaintiff contends its theory is that of recovery on an implied contract; that the applicable statute of limitation is the second subdivision of G. S. 1949, 60-306, which provides that an action upon contract not in writing, express or implied, can be brought within three years after the cause of action shall have accrued; that this cause of action ac crued on April 23, 1951, that being the date it paid its full liability of $20,000 to the receiver, and that the action, having been filed on March 16, 1954, was therefore brought within the three-year period.
Defendant, on the other hand, contends that the statute of limitation applicable to the first cause of action is the third subdivision of the mentioned statute which provides that an action for relief on the ground of fraud can only be brought within two years after discovery of the fraud; that this cause of action therefore accrued on February 9, 1951, that being the date plaintiff was first notified of the shortage; that the statute of limitation was not tolled in plaintiff’s favor while defendant was confined in the penitentiary, and that the action is long since barred.
We believe that plaintiff is in error in contending for the application of the three-year statute of limitation based on the theory of implied contract.
Under any theory, no matter what the cause of action be denominated, plaintiff insurer’s rights to recover are derived from and are limited to the rights which the bank possessed against defendant wrongdoer. In other words, plaintiff is subrogated only to such rights as the bank possessed. Defendant, having embezzled the bank’s funds, was liable to the bank in an action based on fraud for such wrongful conversion, and as far as recovery is concerned plaintiff stands on the same footing as did the bank. The principle involved is well stated in Orozem v. McNeill, 103 Kan. 429, 175 Pac. 633, 3 A. L. R. 1598, in which it was held:
“Assuming that one who has been defrauded of money has the privilege of maintaining an action against the wrongdoer upon an implied contract to restore it, arising out of the fact of the fraud, recovery being dependent upon proof thereof, such a proceeding, unless begun within two years of the discovery of the fraud, is barred by the statute requiring ‘actions for relief on the ground of fraud’ to be brought within that period, notwithstanding that the limitation fixed for an action upon a contract not in writing, express or implied, is three years.” (Syl.)
In the opinion it was said:
“Inasmuch as the fraud must be shown in order to warrant a recovery, the action is literally one ‘for relief on the ground of fraud’ — the contract feature of the case is a mere fiction growing out of the fraud. This provision of the statute is fairly to be regarded as entitled to preference over the one relating to the time within which actions upon contracts must be brought, because of being more specific in its nature.” (p. 433.)
This rule was followed in Weigand v. Shepard, 105 Kan. 405, 184 Pac. 722, where it was held:
“The gravamen of the action being fraud, the statute of limitations applicable to actions for relief on that ground governs, although the petition discloses appropriation of property for the payment of which the law implies a contract.” (Syl. 2.)
We have no hesitancy in concluding that the statute of limitation applicable to the first cause of action is the two-year statute relating to an action for fraud, and it necessarily follows that it is barred unless the statute was tolled in plaintiff’s favor because of defendant’s confinement in the state penitentiary.
Substantially the same arguments are made with respect to plaintiff’s second cause of action, and in our opinion the same reasoning applies in answer thereto. In other words, this cause of action is likewise governed by the two-year statute of limitation and is barred unless the statute was tolled in plaintiff’s favor because of defendant’s confinement in the state penitentiary.
This brings us, then, to the underlying question in the case.
Plaintiff vigorously contends that defendant’s confinement in the state penitentiary tolled any applicable statute of limitation insofar as it is concerned. In other words, it argues that defendant could not be sued while so confined, and in this connection relies in part on G. S. 1949, 21-118, which reads:
“A sentence of confinement and hard labor for a term less than life suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts, authority and power; and a person sentenced to such confinement for life shall thereafter be deemed civilly dead.”
It also relies on what was held in a number of early cases, among them being County of Rice v. Lawrence, 29 Kan. 158, to the effect that the conviction, sentence and imprisonment of a defendant suspends his civil rights and also suspends his creditors’ rights to bring action against him, and that no valid judgment can be rendered against him during his imprisonment without the appointment of a trustee.
We have no quarrel with the rule announced in those early decisions, but it must be borne in mind that they were decided on the basis of statutes providing for the appointment and duties of a trustee for one sentenced to confinement in the penitentiary, and that all such statutes were repealed by our legislature in 1939. A brief summary of them follows, the references being to G. S. 1935.
62-2001 provided that whenever any person was imprisoned under a sentence of imprisonment for life his personal estate, property and effects were to be administered and disposed of in all respects as if he were naturally dead.
62-2002 provided that whenever any person was imprisoned in the penitentiary for a term less than his natural life a trustee could be appointed to take charge of and manage his estate.
62-2006 provided that upon qualification of the trustee so appointed, all estate, property, rights in action and effects of the convict were vested in such trustee in trust for the benefit of creditors and others interested therein.
62-2007 provided that the trustee so appointed could sue to recover, in his name, any of the estate, property or effects belonging to, and all debts and money due or to become due to, such imprisoned convict, and, further, that such trustee could prosecute and defend all actions commenced by or against such convict.
Under these statutes, and others appearing in Chapter 62, Article 20, of G. S. 1935, all of which have been repealed, and as construed in our earlier decisions, it is clear that civil proceedings could not be had against one imprisoned in the state penitentiary for a term less than life, absent the appointment of a trustee.
However, the only “trustee statute” now in effect is G. S. 1949, 59-301 (9), enacted in 1939, which authorizes a probate court to appoint and remove a trustee of the estate of a convict imprisoned in the penitentiary under sentence of imprisonment for life. This statute is of course inapplicable to the facts before us because defendant was sentenced to imprisonment for a term less than life.
In connection with G. S. 1949, 21-118, quoted supra, reference is made to G. S. 1949,21-134, which reads:
“The right and power to make contracts in respect to their property, both real and personal, is hereby conferred on all persons confined in the penitentiary for a period less than life as fully and completely as if their civil rights were not suspended.”
In Everly v. Byrd, 159 Kan. 187, 191, 152 P. 2d 831, it was said that when construed together, the two last-mentioned statutes simply mean that even though the civil rights of the individual referred to in both sections are suspended, his contracts with respect to his property when made by him are nevertheless recognized as valid and enforceable.
The question whether one sentenced to confinement in the penitentiary for a term less than life may be proceeded against in a civil action while so confined was touched on in First National Bank v. Bryant, 170 Kan. 658, 228 P. 2d 534, but a determination thereof being unnecessary for a decision, was not decided.
In dealing with the problem presented it is to be understood that we are not concerned with questions pertaining to rights or disabilities of convicts sentenced for life, or with the disability statute (G. S. 1949, 60-307), which of course is personal to the one under the alleged disability and may be invoked only by him (Bradley v. Hall, 165 Kan. 358, 365, 194 P. 2d 943), or with the right of one imprisoned for a term less than life to bring a civil action (34 Am. Jur., Limitation of Actions, § 214, p. 171; 54 C. J. S., Limitations of Actions, § 241, p. 268, and Annotation at 24 A. L. R. 2d 618) while so confined.
We are concerned solely with the question whether one imprisoned in the state penitentiary for a term less than life may be sued while so confined.
It is to be noted that even under our early decisions one so confined could be sued provided a trustee was appointed for him under the statutes, supra, then in force, and that even under those statutes one so imprisoned could be served with process in a divorce action brought on the ground of defendant’s conviction of a felony and imprisonment therefor subsequent to the marriage, such right of a plaintiff being recognized as an exception to the rule. (County of Rice v. Lawrence, 29 Kan. 158, 162, supra.) Rut, by the repeal of our “trustee statutes” in 1939, and the enactment of G. S. 1949, 59-301 (9), supra, providing for the appointment of a trustee only for one imprisoned for life, it seems clear that the legislature had in mind the abolition of all restrictions with reference to those sentenced for a term less than life.
In our opinion there are very logical reasons for holding that one so confined may be sued. In the first place, surely it cannot be the law that a person, by the commission of a felony and conviction and sentence thereunder, is thus able to work out for himself a more, favorable situation with respect to his creditors than if he had not committed the offense. In the second place, to hold that one so confined may not be sued, would, in many instances, result in impairment of contracts merely by the artifice of committing a felony and being punished therefor. In other words, one should not be permitted to take advantage of his own wrong so as to thwart rights of his creditors. (See Grasser v. Jones et al., 102 Or. 214, 201 Pac. 1069.) We know of no statute, or decision of this court under stat utes now in force, to the effect that one confined in the state penitentiary for a term less than life may not be proceeded against in a civil action.
Applying what has been said to the record before us, it is clear that irrespective whether plaintiff’s causes of action are deemed to have accrued on February 9, 1951, or on April 23, 1951, they are barred by the two-year statute of limitation, and it follows that the demurrer to the petition was improperly overruled.
The judgment of the trial court is therefore reversed with directions to sustain the demurrer.
Harvey, C. J., and Robb, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action in partition of eleven quarter sections of land — 1,760 acres — in Ness county. Some of the defendants demurred to the petition, their demurrers were overruled, and they have appealed.
From the petition it appears plaintiff is the owner, by inheritance, of an undivided one-sixth of all the land, subject to the rights of the holder of a certificate of purchase issued as the result of a judicial sale in an action to foreclose a second mortgage on all the land, the period of redemption having not expired; also, subject to a first mortgage on all the land which has not been foreclosed; also, subject to the rights of the holders of about 37 mineral deeds for various quarter sections of the land executed by prior owners of the real property, and conveying fractional shares of all oil, gas, or other minerals in and under the land described, or that may be produced therefrom, for a limitation of time varying from 15 to 25 years. The grantees of the respective mineral deeds have conveyed fractional shares of their rights thereunder to various persons so that now there are about 175 owners of various fractional shares, all of whom are named among the parties defendant. None of these parties has any title to or interest in any of the land, except the one or more quarter sections described in the mineral deed under which he holds. Several of these mineral deeds were executed prior to the execution of the first mortgage now on the land. Others have been executed since that time. Also, there is an oil and gas lease covering the land.
The petition, necessarily lengthy, sets out in much detail,the respective shares or interests each of the parties has in or to the real property, or some part thereof, and how such share or interest arose. There has been no oil production on any of the land. It contains the prayer usual in an action for partition, namely, that the interest and shares of the respective parties be found by the court and that the real property be partitioned among them in kind, if that can be done without manifest injury, and if not, that the property be sold and the proceeds divided. There is no real contention the property can be divided in kind. The real purpose of the action is to have the shares of the parties determined and valued, the property appraised and sold, and the proceeds used to redeem from the foreclosure of the second mortgage, and to pay the first mortgage, and that the remainder, if any, be divided among the parties to the action in proportion to their respective shares or interests as found by the court.
Two groups of defendants demurred to the petition upon the grounds that as to them the petition does not state a cause of action, and that several causes of action are improperly joined. One group of defendants so demurring were the owners of shares under the mineral deeds executed prior to the execution of the first mortgage on the premises. As to these defendants it is clear that their interests in the property should not be sold to satisfy either of the mortgages on the real property. The other group of demurring defendants have shares under the mineral deed executed after the execution of the first and second mortgages above mentioned. Their rights necessarily are subject to the mortgages and perhaps are barred by the foreclosure of the second mortgage, unless redemption from the sale is made.
It is clear that a defendant holding interests under one of the mineral deedá is not a tenant in common with the holder of similar interests under another deed describing other land even though the grantors were the same in the two deeds.
Eliminating for the moment the mortgage on the land, and the second mortgage which has been foreclosed, the principal question argued is: Cam plaintiff compel partition as against the owners of the interests under the mineral deeds? Each of the mineral deeds executed by the owners in fee of the property conveyed a fractional .share (a one-half in most of them) of all the oil, gas, or other minerals in or under the land described. The grantors of those deeds remained the owners of the other one-half of the minerals and of all surface and other interests in the land, for the reason they had not conveyed them. Plaintiff, by inheritance, became the owner of an undivided one-sixth of all those interests which had not been conveyed by the mineral deeds, and this included an undivided one-twelfth of the oil, gas and other minerals in or under the land. The question of whether one in such a situation can maintain partition against the holders of interests under such mineral deeds over their objection was before this court in Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844. There, after careful consideration, the court held such partition cannot be enforced. While in that case there had been oil production on part of the land and in this case there has been no such production, and there are some other differences in the facts, the legal principle on which the right to partition depends is the same in both cases. We have reexamined the question with the aid of the arguments and briefs of counsel and find no reason to change our views. Neither is there any reason for an extended rediscussion of the matter.
The result is that the demurrers of appellants should have been sustained, and the judgment of the court below must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover tuition alleged to be due as a result of students living in Brown county attending a junior college maintained by the plaintiff in Doniphan county, under the provisions of Laws 1937, chapter 302, the principal question being the constitutionality of that act.
The plaintiff district had filed with the defendant board several claims for amounts of tuition alleged to be due, all of which were rejected. Appeals were taken by the plaintiff to the district court and were consolidated for trial, the trial being had on an agreed statement of facts. So far as need be noticed, it was agreed that plaintiff had complied with the above statute and had maintained its junior college since September, 1938; that all preliminary steps were taken in connection with the certification of names of students by the county superintendents of the two counties involved and the students so attending the junior college were duly qualified to attend; that Doniphan county operates under the Barnes high school law (G. S. 1935, ch. 72, art. 30) and that Brown county does not; that Laws 1937, ch. 302, was duly enacted, and at the time of its enactment plaintiff operated the only junior college in a third-class city in Kansas and that Doniphan county was the only county coming within the requirements of the above act, and that it was the contention of the defendant board the act was unconstitutional. Be cause of some contention made that there is discrimination under the statute between students living in Hiawatha and Horton and those within Brown county outside of those two cities, we note that at no place in the record submitted is there any showing as to where any student for whom tuition was claimed may have resided.
The trial court rendered judgment in favor of plaintiff, and defendant appeals, its specifications of error including that the court erred in holding the statute was constitutional and that the tuition claims should be paid from the general fund of the county.
Taking up first the question of constitutionality, we note appellant’s contention the act is violative of three sections of the constitution: (1) that it is a special law under article 2, section 17; (2) that the title is not sufficient under article 2, section 16; and (3) that the legislation is repugnant to article 6, section 2, dealing with the encouragement of education. It may be observed that by Laws 1917, chapter 283 (G. S. 1935, ch. 72, art. 33), the legislature made provision for boards of education in first- and second-class cities to extend their courses of study and to maintain what are commonly referred to as junior colleges. The general nature of Laws 1937, chapter 302, was to extend to other school districts such a power and authority. The title of the last act is broad and reads:
“An act relating to education, providing for an extension of the course of study in high schools in certain school districts maintaining a high school in cities of the third class, providing for the issuance of bonds, and authorizing a tax levy to maintain said extension.”
The contention the act is a special law and not a general law is based on restrictive matters in the first section under which the power to extend the course of study is limited to the board of directors of school districts maintaining a high school located in a county having a population of not less than 12,000 nor more than 15,700 inhabitants, having no cities of the first or second class, and having within the boundaries of the district a third-class city in which is located a privately-owned junior college. It is agreed that when the act was passed Doniphan county was the only county having a school district within the requirements of the act. Although not specifically shown or admitted, there is no dispute but that at the time the act was passed the plaintiff district, in which was located the third-class city of Highland, and the privately-owned junior college known as Highland Junior College, was the only school district within the terms of the act.
In support of the contention the act is a special and not a general one, appellant calls our attention to Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071, and to many of the cases there reviewed, and to the later case of Panhandle Eastern Pipe Line Co. v. Miami County Comm’rs, 151 Kan. 533, 99 P. 2d 828, in which a further review was made. What is said in those cases need not be reviewed at length, but it is significant that the laws under consideration there, which were held to be special and not general, each contained a limitation of time, a condition not obtaining in the act now under consideration. This court has frequently held that it is its duty to uphold an act of the legislature if possible, b.ut it has also recognized that if an act is repugnant to the constitution it is its duty to declare the act invalid. (See, e. g., Patrick v. Haskell County, 105 Kan. 153, 159, 160, 181, Pac. 611, and Panhandle Eastern Pipe Line Co. v. Miami County Comm’rs, supra.) The test for determining constitutional sufficiency was set forth in Barker v. Kansas City, supra, thus:
“In determining whether a law enacted by the legislature contravenes the provisions of section 17 of article 2 of the state constitution that all laws of a general nature shall have a uniform operation throughout the state, and in all cases where a general law can be made applicable, no special law shall be enacted, the following tests are to be applied:
(a) If a law of general form operates uniformly on all members of the class to which it applies, it is not open to the objection it is a special law if the classification is not an arbitrary and capricious one.
(b) If a law applying to a specified classification of cities or governmental units is otherwise general in its form and its provisions are such that in the ordinary course of things the law might and probably would apply to other cities or governmental units coming within the specified classification, the law is a general and not a special law.
(c) Although the title and form of a law may be general, whether a general or special law has been enacted is to be determined by what in the ordinary course of things must necessarily be its operation and effect.
(d) If a law otherwise general in form and title, and presently applying only to one city or governmental unit, contains a limitation of time in which there can be operations under it, so that there is little or no probability it could or would ever affect any other city or governmental unit, it is a special law.” (Syl. ¶ 1.)
Applying that test to the situation before us, we note the title of the act and the restrictive features contained in the first section as above mentioned and consider them in connection with the factual situation. Taking up first the population matter, we note that in 1937 there were fourteen counties in the state within the limits set, of which five had no first- or second-class city, and that in succeed ing years there have been thirteen such counties, with the- same situation as to cities; that allowing some leeway for probabilities of growth or loss of population in the range between ten thousand and eighteen thousand five hundred, in 1937 there were 36 counties of which nine had no first- or second-class city. It is well known the trend recently has been loss of population and if it continues there may be a considerable number of counties within the range fixed by the act. Taking up the matter of privately owned junior colleges, the public records disclose that in 1937 there were nine such institutions recognized by the state board of education, two being in first-class cities, four in second-class cities and three in third-class cities. The junior college at Highland is the only one whose status has changed except one in a first-class city which seems to have ceased operations. We need not speculate whether there is probability of a privately owned junior-college being established in some county otherwise within the purview of the act, nor whether one established or already in existence would desire to surrender its status. We cannot close our eyes to the fact that since 1919 fourteen public junior colleges have been established in Kansas, and that there are now eight private junior colleges, two of which were established in the last ten years and only two of which were established prior to 1908. We cannot say the above act might not and probably would not apply to other school districts, nor what would necessarily be its force and effect, which we would have to conclude before saying the act is repugnant to the state constitution as being a special act. Our conclusion leaves it unnecessary to consider whether we would uphold the act as being a proper special law where a general law could not be made applicable. (See Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064.)
The contention the act is repugnant to article 2, section 16, of the constitution is based on two grounds. One is the act includes legislation by reference and the reference is vague and ambiguous, and the second is that the matter of tuition is not included in the title. The complaint is directed against section 3 of the act, reading:
“Whenever under existing statutes provision is made for the payment of high-school tuition out of public funds this provision shall hereafter be construed as extending to and covering the payment in like manner of tuition at the same rate for instruction in the high-school extension course of two years, commonly known as a junior college provided for in this act.”' (Laws 1937, ch. 302, § 3.)
Legislation by reference has been upheld in this state. (See G. S. 1935, ch. 77, dealing with the 1923 revision of our statutes.) We do not think the reference to the statutes for payment of tuition is vague or ambiguous. It is true there are a number of such statutes, but they refer to particular situations and are only effective where those situations obtain. If one or more of them do obtain in the relation between Brown and Doniphan counties, their application would seem to be certain. As the agreed statement does not show the local situation of any particular student or students, we are unable to show application of any particular tuition act, and no good purpose is to be subserved by reviewing each one that might apply under a given state of facts. We think, also, that the title of the act is broad enough to cover the provision as to the payment of tuition.
Our attention is also directed to article 6, section 2, of our constitution, reciting—
“The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments”—
as well as to statutes dealing with liability for tuition, and it is argued there is lack of uniformity in the manner of admission and the liability for tuition between students residing in cities of the first and second classes, and students residing in other types of school districts. Without reviewing all of the statutes applicable, it may be said a classification is made which does not appear to be arbitrary or unreasonable. Giving effect to that classification, the act operates uniformly on all members in particular classes. The question of uniform operation has usually arisen under article 2, section 17, of our constitution, and it has been generally held that where a classification made is not unreasonable or capricious, if the act applies to the various classes uniformly, it is of uniform operation. (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915. See, also, 59 C. J., p. 722, et seq., and Kansas cases cited.) Applying such analogy as there may be, and also considering the constitutional provision with respect to education, any system of schools would be a uniform system if it applied to all of a class which was not arbitrarily or capriciously established.
And finally, appellant argues the trial court erred in holding the tuition should be paid from the general fund. In connection therewith, our attention is called to certain statutes, some of which make the school district liable for tuition, and others of which make the county liable. As has been stated, the record does not disclose the particular residence of any pupil for whom tuition is due. We may assume from the record that the trial court rendered judgment against the county only in those instances where it was liable and in no instance where it was not. The judgment as rendered did not direct payment out of any particular fund, general or otherwise. It merely adjudged the amount due and directed the clerk of the court to certify the judgment to the defendant board and that board to allow and pay the tuition charges so placed in judgment. Upon allowance of those charges by the defendant board, it will direct that they be paid from the proper fund.
We conclude the trial court did not err, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action for damages for personal injuries alleged to have been sustained by the plaintiff when he fell into a hole in the sidewalk in the defendant city. A demurrer to plaintiff’s amended petition was overruled. Defendant appeals.
The allegations of the amended petition may be summarized:
On the date of plaintiff’s injury there was a hole in the sidewalk adjoining the Etchen building on Eighth street. The north side of the hole was flush with the building, and extended southward on the sidewalk about three feet. The hole was open and unguarded without any warning to pedestrians and without any railings to prevent persons on the sidewalk from falling into it. It was open for the purpose of excavating dirt, and had been open prior to the date of plaintiff’s injury for five or six weeks. The agents, servants and employees of the defendant city had knowledge of the hole and that it was without guard rails or other protection for pedestrians rightfully using the sidewalk.
On October .6, 1939, at about 1:45 p. m. plaintiff was walking west on the sidewalk on the south side of the hole. When plaintiff reached the place in the sidewalk where the hole was located, one Moore, carrying an armload of groceries, came around the corner of the Etchen building- from the north and passed the plaintiff so close that plaintiff fell into the hole. The west end of the hole is twenty-eight inches from the corner of the building. The building is so located that it was impossible for «the plaintiff to- see Moore until plaintiff was about thirty-six inches from him. The meeting with Moore was so sudden plaintiff could not allege whether Moore actually brushed plaintiff and pushed him into the hole or whether jplaintiff stepped aside to avoid a collision and fell into it. At the time of the injury plaintiff was living upstairs and within forty feet of the hole, knew of it prior to the time of injury, knew of it at the time he was walking along the sidewalk, and was using due care in walking to the side of it. It was alleged that the defendant city was negligent in permitting the hole to be in the sidewalk without any railing or other similar protection to pedestrians rightfully using the sidewalk. As a result of the fall, plaintiff sustained severe injuries for which he asks damages.
Defendant’s motion to strike having been overruled, defendant filed a demurrer to the amended petition.
Did the amended petition state a cause of action?
Under the law of this state a duty is imposed on cities to keep its streets and sidewalks in a condition reasonably safe for their intended use. Blankenship v. City of Caney, 149 Kan. 320, 87 P. 2d 625, and cases cited.
The mere fact that plaintiff knew the sidewalk was defective does not conclusively show contributory negligence on his part in traveling upon it.
Maultby v. City of Leavenworth, 28 Kan. 745; Clark v. City of Hutchinson, 114 Kan. 172, 217 Pac. 305.
Defendant invokes the principle announced in Corlett v. City of Leavenworth, 27 Kan. 673. It was there stated:
“Where there is danger, and the peril is known, whoever encounters it voluntarily and unnecessarily, cannot be regarded as exercising ordinary prudence, and therefore does so at his own risk.” (Syl. ¶ 2.)
Similar statements will be found in Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883, and Limb v. Railroad Co., 73 Kan. 220, 84 Pac. 136.
But we do not think the rule announced in the cases cited reaches the question presented by the demurrer. In the present case we must consider the effect of the intervening act of a third person- — -a circumstance not present in the cases relied upon by defendant.
A somewhat similar situation was presented in City of Olathe v. Mizee, 48 Kan. 435, 29 Pac. 754. In that case-the plaintiff in passing over a crosswalk, to avoid a collision with persons coming toward her, diverged from the cross-walk and fell into an excavation and was injured. It was held, as stated in the syllabus:
“Where an excavation is made by the city authorities in the public street of a city, the end of which extends up to a narrow cross-walk at an intersecting street, and it is left over night uncovered and without guards or danger signals, and a woman, in crossing the street over the cross-walk, meets parties who do not see her or do not turn aside to let her pass, and she, to avoid collision, diverges from the cross-walk, and, without any knowledge of the excavation, falls therein and is hurt, she may recover from the city for the injury sustained ; and the fact that the strangers whom she met did not yield the crosswalk, and that they caused her to step aside and into the excavation, does not preclude such recovery.” (Syl. H 1.)
In the opinion of the court it was stated:
“The negligence of the city in the matter is undoubted. To leave such a dangerous excavation in a public thoroughfare of the city, and close to much-used walk, without guards, barriers, lights, or danger signals, is a marked case of carelessness. It would be clearly negligence to leave such a ditch uncovered and unguarded in the daytime; but for the city authorities to permit such a pitfall to remain open and without lights or guards in the nighttime, with full knowledge of its dangerous character, is gross carelessness. . . (p. 437.)
In the Mizee case, while the intervening act of the strangers by causing the plaintiff to step aside into the excavation was a substantial factor in bringing about the harm to the plaintiff, yet that circumstance did not protect the city from liability. In the case before us the hole in the sidewalk without guard rails or warning signs was a continuing hazard to pedestrians. From the facts alleged the attention of plaintiff was diverted from the danger of the unguarded hole by the sudden approach of Moore.
In Barr v. City of Fairfax, 156 Mo. App. 295, 137 S. W. 631, the plaintiff was proceeding along a sidewalk which he knew was in an icy condition. His attention was distracted to a person he was approaching, and in stepping aside to let the person pass, he slipped on the ice and fell. It was held plaintiff was not guilty of contributory negligence as a matter of law.
See cases cited in Annotation, “Excuses for failure to observe and avoid defect or obstruction — a. Distraction of attention,” 13 A. L. R. 87.
The general rule seems to be that a person whose faculties of observation or memory are temporarily suspended as regards a certain dangerous condition is virtually in the same mental position as a person who has never acquired a knowledge of such dangerous con dition. See Annotation, “Contributory negligence in failing to remember dangerous conditions,” 41 L. R. A., n. s., 79.
The plaintiff had a lawful right to walk along the sidewalk, and under the facts alleged we cannot say as a matter of law that plaintiff was guilty of contributory negligence. Clearly that is a question for the jury to determine.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In a motion for rehearing counsel for appellants call our attention to language used by Justice Brewer in Bradley v. Parkhurst, 20 Kan. 462, as follows:
". . . the practice has been quite common in this state to bring in as parties defendant, in a foreclosure suit, all who claim any interest in the mortgaged premises, whether subordinate, or adverse, to the mortgagor’s title.” (p. 466.)
Also cite many other cases of similar import decided by this court, down' to and including Motor Equipment Co. v. Winters, 146 Kan. 127, 69 P. 2d 23, where it was said:
“. . . it was the universal practice of good lawyers to make all record lienholders and others claiming any right, title or interest in the land, parties defendant in order that all rights and interests might be determined in a single action.” (p. 133.)
Counsel express the fear that our opinion in this case upsets this long line of decisions. There is no reason for such a fear. Nothing said in the opinion justifies that view.
In this case plaintiff, in foreclosing its mortgage, properly made defendants a large number of persons, firms and corporations which the records indicated had or might have some right, title or interest in or lien upon the property, and alleged that the interest, title or lien of each of the defendants was inferior to the lien of plaintiff’s mortgage. Each of the defendants who answered admitted that his claim of title or interest was inferior to that of plaintiff’s mortgage. As to- them and as to the nonanswering defendants the court was authorized to render a decree that the lien of plaintiff’s mortgage was superior to the right, title, interest and lien of the defendants.
In its petition plaintiff did not allege it had title to the property, or that it was in possession of the property. No pleading filed on behalf of any defendant admitted or disclosed that plaintiff had title to the property, yet the scrivener who prepared the decree of foreclosure put in it a provision quieting title as of the date of the decree against all the defendants who had not answered, without stating in whom the title was quieted. We simply held that this provision so inserted, being unauthorized by the pleadings before the court, was void. *
The appropriate decree for the court to have granted would have been to have found the amount due on the mortgage debt, that the mortgage was a lien superior to the right, title and interest or lien of each of the defendants, to order a sale of the mortgaged property, to fix the period of redemption, and to provide that from and after such sale, and in default of redemption, the defendants and each of them would be forever barred and foreclosed.
The court did find the amount due, directed the sale, and fixed the period of redemption. Within that period the property was redeemed by the heirs at law of the mortgagor. In such a case the time never arrived when the title of the property passed by the sheriff’s sale to the holder of the certificate of purchase. Therefore, the time never came when title of defendants, the appellees in this case, was barred by the decree of foreclosure.
Other matters mentioned in the motion for rehearing have been considered, but need not be specifically treated. The motion is denied. | [
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The opinion of the court was delivered by
Allen, J.:
This is a proceeding in mandamus to compel the defendant, the clerk of the district court of Rooks county, to issue a redemption certificate under a mortgage foreclosure.
The Federal Land Bank of Wichita brought an action to foreclose a mortgage on certain land in Rooks county. The case number was 7276.
The Federal Farm Mortgage Corporation, plaintiff in this proceeding, was the owner of a junior mortgage on the same land,, and was joined as a defendant in the foreclosure action. It entered a general appearance in the foreclosure action, but filed no pleadings and asked for no affirmative relief.
Judgment was entered for the plaintiff for the amount of the debt, interest and costs. It was further ordered and adjudged that, upon failure to pay the amount of the judgment as specified, an order of sale issue, the land be sold, and the proceeds of the sale be applied as directed, and any surplus to abide the further order of the court.
At the foreclosure sale held on January 30,1938, the Federal Land Bank became the purchaser of the land, and on February 1, 1939, the sheriff executed to the purchaser a certificate of purchase.
In the present action the plaintiff alleges that on the 29th day of April, 1940, and within fifteen months from the day of sale by the sheriff, the plaintiff paid to the defendant the sum of $2,341.14, being the purchase price, together with accrued interest, taxes, and insurance to and including April 29, 1940, and demanded that the defendant execute a receipt for the payment, and make an entry on his redemption docket to the effect that the property was redeemed by the plaintiff from the sale and also stating the amount of plaintiff’s lien. Plaintiff filed an affidavit reciting that there was due and owing to plaintiff under its junior mortgage on April 29, 1940, the sum of $1,421.14.
Plaintiff alleges the refusal of the defendant to issue the receipt and to do and perform the ministerial acts demanded; that plaintiff has no adequate remedy at law, and asks for a writ of mandamus to compel defendant to do and perform all acts necessary to effect a redemption of the real property in the mortgage described.
The judgment of the trial court recites:
“The court further finds that any right which this plaintiff had to litigate its lien in the foreclosure action above referred to has been lost by its failure to take some affirmative action in said suit; that it is not a lienholder for the purpose of further litigation for affirmative relief, after having failed to have its lien adjudicated in the foreclosure action to which it was a party it no longer has any lien by virtue of its mortgage herein referred to; that by reason of the fact that said plaintiff is no longer a lienholder, having failed to have its lien adjudicated in said foreclosure action, it is not now entitled to redeem from the sale of the property herein described as a junior lienholder and as contemplated by the redemption statutes of the state of Kansas.”
The appeal is from this judgment.
Plaintiff contends1 that it has a lien on the real estate and that under our statutes, G. S. 1935, 60-3440, 60-3441, and 60-3443, it has a right to redeem.
If plaintiff has a lien on the property its contention must be sustained.
In the foreclosure proceeding the court had jurisdiction of the subject matter of the action and of the parties. As plaintiff was duly served with summons and entered its appearance, why was it not concluded by the judgment?
In Moore v. McPherson, 106 Kan. 268, 187 Pac. 884, it was held as stated in the syllabus:
“Under section 497 of the civil code there can be but one foreclosure sale of mortgaged property, no matter how many mortgages encumber that property; and the only way that a junior mortgagee who has been impleaded can protect his interest is by seeing to it that the property, when sold, brings somewhere near what it is worth, or enough to satisfy his second lien. (Sigler v. Phares, 105 Kan. 116, 181 Pac. 628.)” (Syl. ¶ 2.) •
In Lauriat v. Stratton, 11 Fed. 107, the holder of the junior mortgage was joined in the foreclosure action brought by the senior mortgagee. In the opinion it was stated:
“The policy of the statute is to make the property pay the debts of the owner as far as possible. To this end it is provided that as to all the creditors who are parties to the decree, the property shall be absolutely disposed of at one sale to the highest bidder upon an execution, which is, in legal intendment and effect, the process of all of them. B'y this means the interest of the creditors is made to promote a healthy competition at the sale for the benefit of the debtor. But to allow the property to be sold to any one of the creditors for the amount of his debt and costs, upon the understanding that the other creditors, whose liens are subsequent in point of time, may protect themselves by redeeming from him and one another, would be to provide in effect that the property should be knocked down to the prior lien creditor for not more than the amount of his debt and costs, subject to the right of redemption by the junior creditors.
“Besides, if the lien of the subsequent encumbrancer is not extinguished by the sale, what is there to prevent him from enforcing the decree as to himself by execution? It appears to follow as a logical and legal consequence from the premises that if his lien is neither extinguished nor satisfied by the sale, and the decree has ascertained the fact and amount of his lien, and directed the premises to be sold to satisfy it, he has his remedy by execution against the property, and may resell it subject to prior encumbrances. And this process may be repeated under like circumstances by every other en-cumbrancer. But the statute certainly never contemplated such an absurdity, let alone injustice, as this.
“The right of redemption is only given as a protection against a sale to which the redemptioner is not a party, and therefore cannot control, but which may result to his injury. In the very nature of things the right to redeem is inconsistent with the right to sell.” (p. 112.)
See, also, Keller v. Boehmer, 130 Neb. 763, 266 N. W. 577; Western L. & C. Co. v. National Bank, 28 Ariz. 270, 236 Pac. 725.
It may be urged that the rule announced in the foregoing decisions should not apply in the case before us, as the decree did not enter judgment for plaintiff (defendant in the foreclosure action) for the amount of its debt, and did not direct the payment of the mortgage debts in accordance with their priorities, and therefore the lien of the plaintiff was not 'extinguished. The plaintiff, however, was a party to the foreclosure action. It had an opportunity to assert any rights or claims it might have — it was joined as a party for that purpose. An orderly administration of justice requires that the owner of an interest shall have a day in court before a claim affecting his interest effectively secures judicial sanction. But an efficient administration of justice also requires that the presentation and final adjudication of controversies shall not be postponed indefinitely.
The trial court held the plaintiff had waived its lien. In that view we concur. Of course, the waiver of the lien does not affect the debt. As only lien creditors may redeem under the statute, it follows the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
AlleN, J.:
This is an original proceeding in mandamus in which the plaintiff seeks to compel the defendants to admit plaintiff as a student to the 7B grade in Boswell junior high school in the city of Topeka. After defendants had answered, evidence was submitted to a commissioner appointed by the court. The commissioner made findings of fact and conclusions of law and decided that the writ of mandamus should not issue. Plaintiff then moved the court to set aside the findings of fact and conclusions of law of the commissioner and for judgment in favor of the plaintiff. Defendants filed a motion to confirm the report of the commissioner and for judgment in their favor.
We quote from the findings of fact made by the commissioner:
“1. That the plaintiff, Oaland Graham, Jr., is a colored boy, twelve years of age (when this suit was filed), residing with his mother, Beatrice Graham, at 1418 Munson avenue, Topeka, Kan., which is within the district designated by the defendant Board of Education and superintendent of public schools of Topeka, Kan., as the district which is served for junior high-school purposes by the Boswell junior high school.
“2. That the defendant Board of Education of the city of Topeka is a body corporate and politic consisting of six members; and the' defendant, A. J. Stout, is the duly elected, qualified and acting superintendent of public schools of the city of Topeka; and the defendant, Charles S. Todd, is the duly appointed, qualified and acting principal of Boswell junior high school.
“3. That the plaintiff on January 26, 1940, was promoted from the sixth grade of the elementary school in Topeka known as Buchanan school, and thereafter on January 29, 1940, duly presented himself to the defendant, Charles S. Todd, as principal of Boswell junior high school, for enrollment in the seventh grade of that school, and was at that time denied and refused the right to enroll in said school by said principal and by the defendant Board of Education on account of his race and color.
“4. In the district served by Boswell junior high school white pupils receive their first six years of public-school instruction in one of the several elementary schools in said district, then attend Boswell junior high school for the seventh, eighth and ninth years of instruction (referred to in the evidence as seventh, eighth and ninth grades), and then attend the Topeka high school for the last three years of their public-school instruction.
“Colored pupils in said district attend Buchanan school for their first eight years of public-school instruction, upon completion of which they then attend Boswell junior high school or Roosevelt junior high school for one year, or the ninth grade, and then enter the Topeka high school for their last three years.”
There are two principal questions in this case. Plaintiff argues: (1) Boswell junior high school is a high school within the meaning of G. S. 1935, 72-1724, and that therefore the white and colored races cannot be separated; (2) the educational facilities offered to colored children at the Buchanan school are not equal to those offered to white children in the 7B grade at the Boswell junior high school and that the refusal to admit plaintiff to the Boswell junior high school was a denial of plaintiff’s constitutional rights as guaranteed by the fourteenth amendment to the constitution of the United States, and section 1 of the bill of rights of the constitution of the state of Kansas.
The commissioner in his conclusions of law answered these questions as follows:
“1. That the seventh and eighth grades of public-school education, whether housed and taught in Boswell junior high school or elsewhere, in Topeka, Kan., are not a part of a ‘high school’ within the meaning of G. S. 1935, 72-1724, authorizing school authorities in cities of the first class to maintain separate schools for the education of white and colored children.
“2. Under the evidence in this case it does not appear that there is any discrimination against the plaintiff on account of his race or color, or that he has been denied substantially equal educational opportunities with those enjoyed by white pupils in the school in which he seeks admission.
“3. The writ of mandamus prayed for by the plaintiff herein should be denied.”
It should be remembered that in original proceedings such as this, the findings of fact made by a commissioner are advisory only and do not have the finality which is accorded to the findings of a trial court when on appeal its judgment is reviewed in this court. (Hunt v. Gibson, 99 Kan. 371, 375, 161 Pac. 666; State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5.) Nevertheless, there is little dispute as to any question of fact in this case. Such facts as are necessary will be noted below.
The court desires to take up> first plaintiff’s second proposition— the question of discrimination. The authorities are clear that separate schools may be maintained for the white and colored races if the educational facilities provided for each are equal unless süch separation is in contravention of specific state law. A comprehensive statement of the law upon this matter is found in the case of University v. Murray, 169 Md. 478, 182 Atl. 590, 103 A. L. R. 706, where it is said:
“As a result of the adoption of the fourteenth amendment to the United States constitution, a state is required to extend to its citizens of the two races substantially equal treatment in the facilities it provides from the public funds. ‘It is justly held by the authorities that “to single out a certain portion of the people by the arbitrary standard of color, and say that these shall not have rights which are possessed by others, denies them the equal protection of the laws.” . . . Such a course would be manifestly in violation of the fourteenth amendment, because it would deprive a class of persons of a right which the constitution of the state had declared that they should possess.’ (Clark v. Maryland Institute, 87 Md. 643, 661, 41 A. 126, 129.) Remarks quoted in argument from opinions of courts of other jurisdictions, that the educational policy of a state and its system of education are distinctly state affairs, have ordinarily been answers to demands on behalf of nonresidents, and have never been, meant to assert for a state freedom from the requirement of equal treatment to children of colored races. ‘It is distinctly a state affair. . . . But the denial to children whose parents, as well as themselves, are citizens of the United States and of this state, admittance to the common schools solely because of color or racial differences without having made provision for the education equal in all respects to that afforded persons of any other race or color, is a violation of the provisions of the fourteenth amendment of the constitution of the United States.’ (Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926, 928; Board of Education v. Foster, 116 Ky. 484, 76 S. W. 354; Ward v. Flood, 48 Cal. 36.)
“The requirement of equal treatment would seem to be clearly enough one of equal treatment in respect to any one facility or opportunity furnished to citizens, rather than of a balance in state bounty to be struck from the expenditures and provisions for each race generally. We take it to be clear, for instance, that a state could not be rendered free to maintain a law school exclusively for whites by maintaining at equal cost a school of technology for colored students. Expenditures of this state for the education of the latter in schools and colleges have been extensive, but, however they may compare with provisions for the whites, they would not justify the exclusion of colored citizens alone from enjoyment of any one facility furnished by the state. The courts, in all the decisions on application of this constitutional requirement, find exclusion from any one privilege condemned. (State v. Duffy, 7 Nev. 342; Tape v. Hurley, 66 Cal. 473, 6 Pac. 129; Marion v. Territory, 1 Okla. 210, 32 Pac. 116; State v. Board of Trustees, 126 Ohio St. 290, 185 N. E. 196; State v. McCann, 21 Ohio St. 198; People v. Gallagher, 93 N. Y. 438; Wong Him v. Callahan, [C. C.] 119 Fed. 381; Puitt v. Gaston County Commissioners, 94 N. C. 709; Bonitz v. Board of Trustees, 154 N. C. 375, 70 S. E. 735. See notes, reviewing decisions, 32 Law Notes, 147, 149, Ann. Cas. 1915C, 482.)
“Equality of treatment does not require that privileges be provided members of the two races in the same place. The state may choose the method by which equality is maintained. ‘In the circumstances that the races are separated in the public schools, there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense.’ (Ward v. Flood, 48 Cal. 36, 51; Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 172; State v. McCann, 21 Ohio St. 198; People v. Gallagher, 93 N. Y. 438; Roberts v. Boston, 5 Cush. [Mass.] 198:)
“Separation of the races must nevertheless furnish equal treatment. The constitutional requirement cannot be dispensed with in order to maintain a school or schools for whites exclusively. That requirement comes first. See review of decisions in note 13 Ann. Cas. 342. . . .” (p. 483.)
Under the facts of this case it is shown that white children in the city of Topeka are provided with what is known as the 6-3-3 system of education; that is, six years of elementary or grade school, three years of junior high school and three years of senior high school. Colored children are educated under a system which might be referred to as the 8-1-3 plan. They go to grade school through the first eight grades, then to the same junior high schools attended by the white children for the ninth year and also attend senior high school with the white children.
Plaintiff’s argument is that he was denied the right to have his education in the 7B grade in a junior high school simply because he was a negro; that he was compelled to obtain his education in Buchanan school, which is what is commonly known as a grade school and is run on the well-known grade-school system. Plaintiff makes no claim nor does the evidence show that the teachers of Buchanan school.were in any way incompetent as grade-school teachers, nor that the school was not a well-conducted grade school.
The plaintiff points out a great many differences in the system of operation of the junior high school and that of the grade school.
Plaintiff stresses that the junior high school is conducted under a departmentalized plan. Under this system teachers are assigned to teach courses in one or two branches in which they have had special training. Thus, in the 7B grade at Boswell junior high school the students are taught nine subjects by nine different teachers. In the Buchanan school, where the 6A, 7B and 7A grades are all in one room, the one teacher teaches twenty-eight different subjects, ten of these subjects are 7B courses. In Buchanan school, in the room in which the 7B grade is located, it is necessary for two of the classes in that room to study while the other class is reciting in the same room. In Boswell the class periods are approximately fifty-two minutes long and are divided into a study period and recitation period; there is no other class in the room during the class period. It is true there is a domestic-science teacher and a manual-training teacher at Buchanan school to whom the pupils go at stated times for instruction, but this does not change the general system employed in the school.
There are other facilities and advantages afforded the students at Boswell junior high school which are lacking in Buchanan school. Because of the departmental organization, a student who fails in only one subject is required to take only that subject over. In Buchanan school he would be required to take the entire year’s work over. Boswell junior high school has a standard high-school gymnasium with adequate shower bath rooms. The junior high school takes part in a city-wide junior high-school athletic league, has an athletic coach and an assistant coach. It is true as pointed out by defendants that the coaches also- teach other subjects in the junior high school. In Boswell students had the opportunity of playing in a school orchestra and receiving instruction in instrumental music. In Buchanan there is no opportunity for instruction in instrumental music. Defendants point out that it is necessary for a student in Boswell to own his own instrument and to have acquired sufficient ability to warrant his receiving this instruction before it is accorded to him. Obviously in any school not all the students would be capable or desirous of playing in an orchestra. The system of grading differs in the two schools. In the junior high school, pupils are graded according to the manner in which they measure up to a standard of excellence for all students. In the grade school, students are graded under a system in which they receive a grade of “satisfactory,” “unsatisfactory,” and “not passing,!’ based upon a supposed estimate of their personal effort and capacity. In the Boswell school there is an auditorium, while in Buchanan there is none. It is true that there are two rooms in the Buchanan school which can be thrown together and used for school assemblies and functions and that a movable stage is made available to the school by calling the Board of Education when it is desired.
The defendants argue that all of the matters above noted result only from the fact that the Boswell junior high school is a bigger school than Buchanan school; that it can be argued that the departmental system of teaching is no better than the so-called grade-school system, that the graduates from Buchanan school show no inferiority in ability and education when they enter the ninth grade in Boswell; that many of the facilities found in the junior high school are simply extracurricular activities and do not constitute discrimination.
The court has reached the conclusion that the position óf defendants is untenable. It appears clear that the educational facilities offered at Boswell junior high school do not differ from those at Buchanan school except in size and capacity of the building and equipment, which might well be found where one school has a considerably larger student body than the other. It is apparent that a different system of teaching is employed in the two schools. Common observation as well as the evidence in this case shows that the junior high-school method of departmentalization is considered to be an advanced and improved method of education. No one instructor can be as proficient in teaching all courses of study as he is in the particular branches in which he has special interest and training. The departmental system has been in use in senior high schools and colleges for many years. The idea of the junior high school has been to apply this method of teaching to the 7th and 8th grades as well as to the higher grades.
It will not do to say to one American citizen, you may not have the benefits of an improved method of education because of your race, when at the same time other citizens in the same school district are being accorded those benefits.
The defendants cite the case of Reynolds v. Board of Education, 66 Kan. 672, 72 Pac. 274. The rules of law set out in that case are sound and are applied in this case. In that case complaint was made because the white children were furnished a larger schoolhouse than the colored children. But the white children were more numerous than the colored children and there was nothing in the Reynolds case to show that the methods of education differed in the two schools nor that the smaller schoolhouse did not furnish just as adequate educational facilities of the same character to the smaller group of pupils as were furnished to the larger group of pupils by the larger schoolhouse. It was held that Reynolds could legally be denied admission to the larger school.
In Williams v. Parsons, 79 Kan. 202, 99 Pac. 216, the court held that colored children could not be excluded from a school near their place of residence and compelled to attend a colored school which was placed near numerous railroad tracks and where it would be necessary for the children to cross many of these busy railroad tracks on their way to and from school.
Among the reasons which caused the supreme court of Oklahoma to find that an unlawful discrimination existed between white and colored school children under the facts in the case of Jones v. Board of Ed. of Muskogee, 90 Okla. 233, 217 Pac. 400, was that the curricula of the white schools included blacksmithing, auto repairing, printing, electric wiring, architectural and mechanical drawing, banking and commercial courses, kindergartens, handcrafts, cartooning, lettering and commercial art, and bands, none of which were included in the curricula of the colored schools.
In the recent case of Missouri, ex rel. Gaines, v. Canada, 305 U. S. 337, 83 L. Ed. 208, the supreme court of the United States, in reversing a decision of the supreme court of Missouri, said:
“The admissibility of laws separating the races in the enjoyment of privileges afforded by the state rests wholly upon the equality of the privileges which the laws give to the separate groups within the state. The question here is not a duty of the state to supply legal training, or of the quality of training which it does supply, but of its duty when it provides such training to furnish it to the residents of the state upon the basis of an equality of right. By the operation of the laws of Missouri a privilege has been created for white law students which is denied to negroes by reason of their race.” (p. 349.)
The school authorities of the city are not required to furnish the benefits of a departmentalized junior high school to its residents, but they cannot be furnished to white children residing within a particular district and be withheld from negro children residing in the same district and having equal qualifications because of their race. Further authorities are collected in the annotation appearing in 103 A. L. R. 713. The case of State, ex rel., v. Wirt, 203 Ind. 121, 177 N. E. 441, cited by defendants, is readily distinguishable from this case.
The first proposition advanced by plaintiff that the 7B grade as taught in Boswell junior high school is a high-school grade and that the provisions of G. S. 1935, 72-1724, prohibiting the separation of the races in high schools, govern this case will be noticed briefly. There was evidence by witnesses well qualified in the field of education that the 7B grade as taught in junior high schools was a grade in a secondary school. But in the words of Professor Chandler of Kansas University who was one of plaintiff’s witnesses: “I don’t think that the terms high school and secondary school are synonymous.” This is especially true when it is considered that the meaning of the word high school with which we are concerned is the meaning used by the legislature in the statute.
As early in the history of the state as the compiled Laws of 1862, ch. 46, art. 4, the legislature provided that the races might be separated in the schools of the state. The same authority was given in the Laws of 1868, ch. 18, sec. 75, but when the school laws were recodified by the Laws of 1876, ch. 122, the provision for separation of the races was omitted. By the Laws of 1879, ch. 81, sec. 1, provision for separation of the races except in high school was enacted. This section was amended by Laws of 1905, ch. 414, sec. 1, and now appears without further change in G. S. 1935, 72-1724. Since the first junior high school in the United States is shown by the evidence to have been established in 1910, it would appear that the legislature could not have had junior high schools in-mind when either the statutes of 1879 or of 1905 were enacted. The statute passed in 1925 and appearing as G. S. 1935, 72-40a01, authorized the establishment of junior high schools, but would seem to have no bearing on this case.
It would seem to be established that the legislature by the use of the word high school in this statute meant to include the grades commonly recognized as high-school grades, namely, the 9th, 10th, 11th and 12th grades.
In Thurman-Watts v. Board of Education, 115 Kan. 328, 222 Pac. 123, this court held that the 9th grade in a junior high school was a high-school grade within the meaning of the above statute.
The contention of plaintiff that the 7B grade is a high-school grade within the meaning of G. S. 1935, 72-1724, and that the statute therefore prevents a separation of the races, cannot be sustained.
Because of the conclusions already reached, other matters discussed in the briefs need not be noticed.
While in the form of mandamus, the real purpose of the action is to determine the right of plaintiff to attend the seventh and eighth grades in the junior high school. We conclude he has that right. No writ will issue at this time, but the court retains jurisdiction of the cause for such specific orders as may be necessary. | [
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Opinion by
Strang, C.:
Sometime prior to March 1,1887, S. M. Hollis sold to L. S. Bacheldor a windmill and grinder, and also a wheel and chain to connect said windmill and grinder, and transmit power from the former to operate the latter, for the purpose of grinding feed for stock. At the time of the sale, the said Hollis took from Bacheldor his promissory note for said property, in which he reserved to himself the ownership and possession of said property until the purchase-money should be paid, together with the right to retake the actual possession of said property at any time he should deem himself insecure. The windmill, grinder, wheel and chain were set up and used on the homestead of the defendant. The windmill was placed on a tower which was bolted fast to posts let into the ground. The grinder was screwed fast to the floor of a small shed erected over it for shelter. The notes were not paid when due. Hollis brought suit thereon and obtained a judgment against Bacheldor March 14,1887, for $250. October 13,1887, an execution was issued on said judgment and levied upon the homestead of Bacheldor for the purpose of selling the same to satisfy the judgment. November 3, this suit was begun in the district court of Cloud county, to enjoin the sale of said homestead, upon the ground that it was exempt. An answer was filed admitting that the premises were the homestead of Bacheldor, but alleging that the debt upon which the judgment rested was contracted for improvements upon said homestead, and that the exemption laws of the state did not therefore protect the homestead. The injunction was allowed, and on trial made perpetual. Motion for new trial was overruled, and a case made for this court.
The only question in the case is, was the debt, for the payment of which the Bacheldor homestead was being sold, contracted for improvements thereon? If it was, the judgment of the court below was wrong, and ought to be reversed; but if such debt was not for improvements on said homestead, the judgment is right and must stand. The property for which the debt in question was contracted was, at the time of the sale, personal property. If it ever became a part of the realty, and therefore an improvement thereon, it was by reason of its becoming attached to such realty after the sale. Whether personal property affixed to realty becomes a part thereof depends, as a general rule, upon the character of its attachment to the realty, or the use to which it is put. If it is attached to the realty so as to be incapable of separation therefrom without serious injury to the latter, it will generally be considered a part of the realty. Or if it is affixed to the realty to be used permanently in connection therewith as a part thereof, it will generally be considered a part of the realty. (Walker v. Sherman, 20 Wend. 636, and cases there cited.) None of the property sold by Hollis was so attached to the realty of Bacheldor as to be incapable of severance and removal therefrom without injury to the realty; nor was its attachment to the realty necessary to the use and enjoyment of the homestead of Bacheldor. It was used to grind feed for himself and neighbors for profit, outside of any necessary connection with the freehold. But whether in this case, under the general rule, the property would be considered a part of the realty or nut, we do not think that, under the contract between Hollis and Bacheldor, the property sold by the former to the latter became a part of his real estate.
In the sale of personal property that is to be fixed to realty* the contracting parties at the time of the sale have the power, as between themselves at least, to fix the status of such property, and to say whether, when affixed to the realty of the vendee, it shall remain personal property or become a part of the realty. (Fortman v. Geopper, 14 Ohio St. 558; 1 Benj., Sales, § 425; Tied., Sales, §§ 83, 85.) Did the contracting parties, at the time of the sale in this case, fix the status of the property for which the debt sought to be enjoined was contracted? We think they did; and in such a manner as to leave the property on the premises of Bacheldor not only mere personal property, but the property of Hollis, the vendor, until the performance of the condition by payment of the purchase-price. When the mill, grinder and other articles were sold by Hollis to Bacheldor, the former reserved in writing both the ownership and possession thereof in himself until the price was paid; and also reserved to himself the right to take the actual possession of said property whenever, before payment, he deemed himself insecure. That is, if at any time before payment Hollis, for any cause, thought he was in any danger of losing his property, he had the right to go to Bacheldor’s place and take it away. So long as this right remained in Mr. Hollis by express contract between himself and Bacheldor, the property, as between themselves at least, could not become a part of the realty, and could not be held to constitute an improvement thereon. If said property did not constitute an improvement upon the realty, the homestead would be exempt from the payment of the debt contracted therefor, and the sale of the homestead to satisfy such debt should be enjoined. (Eaves v. Estes, 10 Kas. 314; A. T. & S. F. Rld. Co. v. Morgan, 42 id. 23; Ford v. Cobb, 20 N.Y. 344; Holmes v. Tremper, 20 Johns. 29.)
We therefore recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an action in ejectment, brought in the Osage county district court by Isabella N. Jenkins and Johanna Van Dorp against Charles A. Pray and Alice Pray, to recover a quarter-section of land. The plaintiffs below show title from the government through mesne conveyances. Pray and wife claim title through a sheriff’s deed of date January 28, 1880, made by virtue of an order of sale issued under a foreclosure decree, wherein E. A. Johnson was plaintiff, and Isabella N. Jenkins and William Henry Jenkins, her husband, and Johanna Van Houten, now Van Dorp, were defendants. It appears that the father of these ladies delivered them a deed to said land in May, 1877. This deed was executed on the 9th day of December, 1874, by the grandfather and grandmother (they being the owners) of the defendants in error. It was placed upon record on the 15th day of June, 1877, and at the same time a mortgage, purporting to have been executed by Jenkins and wife and Johanna Van Houten to one E. A. Johnson, to recover the payment of $400, with interest, was filed for record. Payment of interest being in default, an action of foreclosure was commenced by Johnson, that resulted in a judgment and an order of sale of the mortgaged property. It was sold to Johnson, the sale was confirmed, and a deed made by the sheriff to Johnson, who, on December 21, 1880, conveyed the same by warranty deed to these plaintiffs in error, who, on the 1st day of March, 1881, went into the actual possession of the land, and have held the same ever since, and have made lasting and valuable improvements on the same and occupied it as their homestead.
The plaintiffs below claim that the mortgage was never executed by them, or either of them, and that the same is a forgery and is fraudulent and void, and that they had no knowledge, notice or information of the existence of said mortgage until just prior to the commencement of this action; that the court rendering the decree of foreclosure had no jurisdiction of their persons, neither Isabella N. Jenkins nor Johanna Van Dorp ever having been served with process in said action, nor had any knowledge or notice of the pendency of such action until just prior to the commencement of this action. The trial court made the following special findings of fact and conclusions of law, to wit:
“findings of fact.
“On considering the evidence in this case, I find that on the 14th day of June, 1877, the plaintiffs were the owners in fee-simple of the land in controversy in this action, being the southeast quarter of section 10, township 14, range 17, in Osage county, Kansas; that on the 28th day of January, 1880, I. H. Smith, as sheriff of said Osage county, Kansas, executed and delivered to E. A. Johnson a deed, purporting to convey to said Johnson the interest of one of the plaintiffs, Johanna Van Houten, now Johanna Van Dorp, to said real estate; that it is upon this deed that the defendant Charles A. Pray bases his title to this real estate; that said sheriff’s deed was based on a certain foreclosure proceeding had in the district court of Osage county, Kansas, the object of which proceeding was the foreclosure of a mortgage purporting to have been executed by plaintiffs, Johanna Van Dorp, then Johanna Van Houten, and Isabella N. Jenkins, under the name of Isabella N. Jenkins, and her husband, William Henry Jenkins. This mortgage purports to have been executed and acknowledged on the 14th of June, 1877, and to have been recorded on the 15th day of June, 1877, on which last-named day the deed for said land to said plaintiffs, which was executed on the 9th day of December, 1874, was also recorded.
“I find that in these foreclosure proceedings no valid service of summons was ever made upon either of the plaintiffs in this case, but that personal service was made upon William Henry Jenkins; that in said case judgment was first rendered against William Henry Jenkins and Isabella N. Jenkins, one of the plaintiffs in this case, with a decree of foreclosure of the mortgage as to them and an order of sale of their interest to said land; that afterwards judgment was rendered in said case against Johanna Van Houten, and a decree of foreclosure of said mortgage as to her and an order of sale as to her interest therein; that when said land was sold finally, it was sold under the last-named judgment, and only the interest of Johanna Van Houten therein was conveyed by the sheriff and conveyed on said sheriff’s deed.
“I further find that the sheriff’s deed was recorded on the - day of-, in the year 1880, and afterward, on the 18th day of November, 1880, E. A. Johnson, grantee in said .sheriff’s deed, conveyed to said Charles A. Pray, by a warranty deed, the land in controversy, which last-named deed was recorded on the 21st of December, 1880, and that the consideration in said deed was $925; that said Charles A. Pray, under the said deed, went into possession of said land about the 1st of March, 1881; and has ever since that time remained in exclusive possession of said land, and has made valuable and lasting improvements thereon.
“I further find that the plaintiff Isabella Jenkins became aware of the fact that she, together with her sister Johanna Yan Houten, now Johanna Yan Dorp, owned this real estate some time in May, 1877, at which time the deed for said land was delivered to her by her father, then living in Topeka, Kansas; that the plaintiff Johanna Yan Dorp had no knowledge of her ownership or interest in said land until about two years ago.
“ I further find that the mortgage purporting to have been executed by Isabella Jenkins and William Henry Jenkins, her husband, and Johanna Yan Houten, to E. A. Johnson, on the 14th day of June, 1877, was not executed, signed or acknowledged by said Isabella Jenkins and Johanna Yan Houten, now Van Dorp, at that time, or at any other time; that said mortgage was fraudulent and void as to them.”
“conclusions op law.
“As conclusions of law from the facts found, I find that the plaintiffs are entitled to recover possession of the real estate in controversy in this action, and also to recover their costs.”
I. The two controlling questions in this case are matters of fact, rather than of law. These are, was the mortgage executed by the parties charged with its execution? and was service of process made on Isabella N. Jenkins and Johanna Yan Dorp in the foreclosure action? To except these questions from the operation of a familiar rule, the effort of counsel for the plaintiffs in error has been expended in the attempt to show that the decision below was against the evidence, but this much can be said with perfect truth: that there is evidence to support the finding, and we can with great propriety go further, and say that the weight of the evidence is apparently with the proposition that no personal service of summons was ever made on Mrs. Jenkins and Miss Van Houten in the foreclosure action. The evidence that they never signed the mortgage, while not as strong and satisfactory as the want of service, is yet sufficiently strong to sustain the finding in that respect. Still it is not our province to determine its effect further than to insist on a fair compliance with the spirit of the rule requiring some evidence to support the finding.
II. It is insisted that this is a collateral attack on the judgment of foreclosure. With the finding supported by evidence that Mrs. Jenkins and Miss Van Houten were never served with process in that action, the case of Mastín v. Gray, 19 Kas. 458, seems to be conclusively against the contention of the plaintiffs in error. It is said in that case “ that a judgment rendered without jurisdiction may be impeached in a collateral proceeding;” but it may be that according to the logic of the cited case this is a direct attack. In either event we do not think the court erred in this respect. The complaints made about the admission and exclusion of evidence become immaterial, because the controlling questions are want of personal service in the foreclosure suit, and the forgery of the mortgage, and if the evidence was excluded in the one instance and admitted in the other the result would not be changed.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
September 19, 1887, there was born to Ida May Potter, a single woman of 17 years of age, a female child, afterward named Bessie May Potter. The said Ida May Potter, being unable to properly support and care for her said child, and being anxious to procure a home for her, went, on the 28th day of August, 1888, before the probate judge of the county of Stafford, where she resided, and relinquished all her claim to said child to Calvin and Anna McClure, husband and wife, who at the same time appeared before said probate court and expressed a desire to adopt said child as their own. The probate court, after investigating the fitness of said persons, Calvin and Anna McClure, to take the care and custody of said infant, and to assume the relation of parents thereto, made an order permitting and confirming the adoption of said infant by said Calvin and Anna McClure, which said order shows that the court, and all the parties to the adoption of Bessie May Potter by Anna and Calvin McClure, complied with all the provisions of the statute relating to the adoption of minor children; after which the infant was taken by the McClures to their home, and from that time until the present has been cared for and supported as their own. On the 17th day of June, 1891, said Calvin and Anna McClure were cited to appear before the probate court of Stafford county, before which a hearing was then had, and a decision rendered by said court setting aside the order under which Bessie May Potter was adopted by Calvin and Anna McClure, because the mother of said child, Ida May Potter, who in the meantime had intermarried with a man named Bush, was not 18 years of age when she appeared before the probate court on the 28tli day of August, 1888, and assented to the adoption of said infant by the McClures. The probate court also found that the mother of said child should pay the McClures some $300 in money for the care and support of said child, and made such finding a part of its judgment, and required said sum to be paid before its judgment should take effect. The petitioner, not wishing to pay the $300, and the respondents not wishing to accept the $300 and surrender the child, then abandoned the probate court as a forum through which to obtain possession of her child, and filed her petition for a writ of habeas corpus in this court, July 22, 1891. Thereupon an order issued, requiring the respondents to produce the body of said infant before the court September 3,1891. The respondents answered the petition, setting, up the record of the probate court of Stafford county, showing the adoption of said infant by them, and alleging that they had and retained the custody of said child as their own by virtue of the proceedings and order of adoption of said probate court. A reply was filed by the petitioner, setting up the proceedings had in the probate court June 17, 1891.
This court is of the opinion that the proceedings before the probate court of Stafford county, on June 17, 1891, as set up in the reply of the petitioner, were wholly without jurisdiction, and therefore entitled to no weight in the consideration of this case; that the case is to be considered as having the same status here, now, as it would have if such proceedings had not been had, and the petitioner was here for her writ, alleging the matters contained in her petition. That being true, the only question for our consideration is, does the evidence establish the fact that the respondents are not proper persons to have the custody, care and education of said infant? If it does, it is our duty to take such infant from the possession of the respondents and place it in proper hands, looking principally to the future welfare of the infant in so doing. The record shows that the infant was less than one year old when the respondents adopted it, and that it is now four years of age. Doubtless, having taken the child when it was so young, and having kept it so long, and adopted it as their own, the McClures have become greatly attached to the child; and, indeed, their evidence shows that they entertain the same affection for it that they would had the child been born their own. Under such circumstances it would take a strong showing to induce this court to take the child from them for any purpose. While this court would not hesitate to remove the child from their custody if we were satisfied the respondents were not proper persons to bring it up, yet it would require a stronger showing than under many circumstances and con ditions to induce us to take the child from persons who adopted it as their own, by permission of the court, at such a tender age, when it required so much attention and care, and after they have cared for it for a period of three years and over. In this case, however, an examination of the evidence shows no occasion for the intervention of this court in behalf of said infant. The evidence shows the respondents cherish it as their own; that they are possessed of a home of their own, wherein they live about like the average of farming people in this new country; that they are members, in good standing, of a Christian church, and, so far as we are able to gather from the evidence, are themselves, as individuals, among the average of the people in the community where they reside. We believe these people who have this child are giving it, and will continue to give it, reasonably good care, and a reasonably good home. If at any time in the future, during the infancy of Bessie May, the respondents should fail in their duty to her to such an extent as to render it necessaryand proper for this court to interfere in her behalf, we would, upon our attention being called thereto, promptly relieve them of the custody of the child and place it in other hands.
It is recommended that the writ be denied.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The judgment of the court below in each of these three cases will be affirmed, upon the authority of the case of the Watkins National Bank v. James G. Sands, just decided. See, also, the following authorities: Case v. Ingersoll, 7 Kas. 367; Cuendet v. Lahmer, 16 id. 527; Harris v. Cappell, 28 id.117; Kelsey v. Harrison, 29 id.143; Tootle v. Coldwell, 30 id. 125; Bailey v. Manufacturing Co., 32 id. 73; McPike v. Atwell, 34 id. 142; Hershfield v. Lowenthal, 35 id. 407; Hosea v. McClure, 42 id. 403; Allen v. Fuget, 42 id. 672; Cooper v. Clark, 44 id. 358; Furniture Co. v. Armstrong, 46 id. 270. See, also, 1 Wade, Att., § 96. The first ofLhe above cases now under consideration, the one of the Douglas County National Bank, cannot be distinguished from the Watkins National Bank case, above cited and followed. The second case, that of the National Bank of Lawrence, can scarcely be distinguished from the Watkins National Bank ease, there being no important differences between them. As to the other case, that of George A. Banks, there is a difference in the facts which it is claimed is of importance. Banks’s action was commenced on May 15, 1889, on promissory notes dated in 1882, and it is claimed that after that time, and in August, 1887, Sands gave to his wife $1,300 in cash for a consideration of about $800, and therefore that $500 of the amount was a pure gift, and that Sands was insolvent at the time, and therefore that the transaction was a fraud upon Sands’s creditors. Of course it is a fraud against creditors for an insolvent person to give away his property; but this claim, however, of the plaintiff in error, Banks, is not sufficiently shown by the evidence, and the burden of proof was upon the plaintiff, Banks; and the findings of the court below were against Banks and in favor of Sands. The facts with regard to this matter seem to be about as follows: This money, $1,300, was obtained by Mrs. Sands on account of Quantrell raid losses. The Quantrell raid occurred on August 21, 1863, at which time a large amount of property belonging to Sands was destroyed by Quantrell’s band. Sands promised that whatever might afterward be received on account of his losses at this raid should be given to his wife. When this promise was first made is not, however, shown. In 1875, an act of the legislature was passed appointing a commission to examine and certify the amount of the losses which occurred by reason of this as well as of other raids of guerrillas and marauders during the years from 1861 to 1865. We would infer that under this statute a claim for Sands’s losses was made out and presented in Sands’s wife’s name, and examined and approved by the commission. In 1887, an act of the legislature was passed providing for the assumption and payment by the state of Kansas of all such claims; and in August, 1887, Mrs. Sands drew the amount allowed to her, which was about $1,300. It does not appear that Sands ever had any of this money in his possession; nor does it sufficiently appear that Sands was insolvent at that time, or at any time prior thereto; and, as before stated, the findings and judgment of the court below are against the plaintiff, Banks. Also, it would seem that Sands at the time owed to his wife about $800 of the amount, and the remainder of the amount, to wit, $500, was afterward used in making improvements upon their homestead. Sands was at that time and had been for years openly doing a harness and saddlery business at Lawrence, and he continued in such business, and his credit was then and afterward “first class;” and he continued in such business for nearly two years afterward, to wit, until about May 13, 1889, when he executed the mortgages and assignment involved in this controversy. The Banks suit, as before stated, was commenced on May 15, 1889, when an order of attachment was issued therein and levied upon a portion of Sands’s stock of goods, both at Lawrence and Eudora. It would hardly seem that the foregoing facts could be held sufficient to sustain the foregoing attachment. The court below found and held that they were not, and we cannot say that the decision is erroneous.
We think the decision in this case and in the other Sands cases will do ample justice. Under it neither the mortgagees nor the attaching creditors will get advantages or preferences over the other creditors, but all of Sands’s property which is not exempt from judicial process will be used for the benefit of all his creditors in proportion to their respective' claims. This is equity, while to give preferences or advantages to either the mortgagees or the attaching creditors would not be equity.
The order and judgment of the district court in the three cases now under consideration will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The plaintiff in error brought this proceeding in the district court of Morris county to compel the defendant, as justice of the peace, to approve two appeal bonds which were presented to him for approval by the railway company. It appears that on the 19th day of April, 1888, A. J. Blythe recovered a judgment against the plaintiff in error before J. F. Marshall, a justice of the peace of Morris county, and on the same day J. F. Kendall recovered a judgment against the plaintiff in error before the same justice of the peace. Within 10 days after the rendition of judgment, and on April 28, 1888, the railway company tendered to the justice of the peace an appeal bond in each case, which was sufficient in form and amount, and each was signed by two sureties who resided outside of Morris county but within the state of Kansas. On May 14, 1888, an alternative writ of mandamus was allowed by the district court, requiring the defendant in error to approve the bonds or show cause why it should not be done. The defendant in error filed a return, denying the sufficiency of the bonds, and upon a trial of this issue the peremptory writ of mandamus was denied.
The testimony shows that the sureties who signed the bonds did not justify, and that no proof of their qualifications was produced before the justice when the bonds were tendered to him for approval. The testimony taken at the trial further shows that the pecuniary condition of the sureties upon the bonds was sufficient to meet the requirements of the statute. The appeal bonds, however, were not accepted by the justice as sufficient, and the attorney who presented them admits that the justice was not satisfied with their sufficiency when they were left with him. Plaintiff in error contends that the only objections made to the sufficiency of the bonds were, first, that the sureties were non-residents of the county; and, second, that they had failed to justify. The sureties are not required to be residents of the county, but they must be residents of the state. (Civil Code, § 724.) The sureties upon the bonds tendered in this case possessed the requisite statutory qualifications ; that is, they were residents of the state and were worth double the sums to be secured, over and above all exemptions, debts, and liabilities. The first objection, therefore, standing alone, would not be good. As to the second objection, it was the duty of the justice to require the persons offered as sureties to make an affidavit of their qualifications. This is a directory provision, and the absence of such qualifications upon appeal bonds that were otherwise sufficient would not invalidate the bonds. (Railroad Co. v. Wilder, 17 Kas. 239; Smith v. Town Co., 36 id. 758.) It is probably true, that if a justice accepts a bond and does not require an affidavit of qualifications when the bond is received, he cannot, after the time has expired in which the bond is required to be filed, complain or object to it by reason of the absence of such affidavit. In this case, however, the justice testifies that these were not the only objections to the sufficiency of the bonds. According to his testimony, he told the person presenting the bonds that they were insufficient, and that person admitted that they were not good. He says one reason why he did not approve the bonds was, that the parties did not reside in his county, and he did not know that they possessed the requisite pecuniary qualifications; and the other was, that no affidavit or proof of qualifications of sureties was tendered with the bonds. It was the duty of the person presenting the bonds to satisfy the justice as to the sufficiency of these sureties; but, according to the testimony of the justice, this was not done; nor was there any attempt made to show that they possessed the necessary qualifications, although objection was then made to their sufficiency. Instead of furnishing such proof, the justice was requested to procure sureties who were sufficient. Under the testimony of the defendant in error, the trial court was warranted in denying the application for mandamus. Its judgment will, therefore, be affirmed.
All the Justices concurring. | [
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