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The opinion of the court was delivered by Thiele, J.: The question in the above appeals is whether certain demands against a decedent’s estate were barred by the statutes of nonclaim (G. S. 1935, 22-702, 22-729). Although two demands were involved, the question now presented is the same with respect to both, and we shall limit our statement to that of Beva Marie Lane, omitting reference to all matters not bearing on the particular question being considered. One Albert Lee Wells died testate on April 7, 1937, and thereafter on April 20, 1937, his will was duly admitted to probate and his son appointed as executor. He qualified and gave proper notice of his appointment. It appears that on- June 19, 1937, Beva Marie Lane filed her demand in the probate court, but it was not until July 13, 1937, that she exhibited to the executor her written verified demand. She did not give any notice under G. S. 1935, 22-712, that the demand would be presented to the probate court for its allowance at a time specified, for the reason, apparently, the exec utor, in writing, had acknowledged exhibition and waived service of notice of presentation of the demand. After the expiration of one year from the date of exhibition and on July 23, 1938, the probate court set the demand for hearing. Within a few days the executor, by motion to dismiss and by demurrer, raised the question. the demand was barred by the statutes of nonclaim. The probate court ruled adversely to the executor and ultimately allowed the demand. The executor appealed to the district court, where he filed another motion to dismiss and another demurrer, both raising the same question as in the probate court. The district court ruled in favor of the executor that the demand was barred by the statutes of nonclaim, and the claimant appeals. In Bristow v. First Trust Co., 140 Kan. 711, 38 P. 2d 108, this court considered the question of the steps necessary to be taken by a claimant to establish his demand against the estate of a decedent in order that he might avoid a defense the statute of nonclaim has barred his demand. There is no present need to review all that is said there. In that case it was held that mere exhibition of a claim did not suspend or affect the running of the statutes of non-claim nor the necessity of the claimant’s complying with statutory requirements preliminary to establishment of a claim; that the bar of the nonclaim statutes would fall after one year from the date of appointment of the executor or administrator, and that the executor or administrator could not by any act or acknowledgment waive the bar of the statute. In that case the claimant had not served any notice of presentation and the administrator had not in writing waived such notice, nor had he, prior to the expiration of the one year, appeared in court when the demand was set for hearing. Appellant calls attention to the fact that in that opinion it is stated some four or five times the administrator did not waive notice of presentation, while in the instant case there was such waiver, and she seeks to make a distinction on that account. It is true that in the Bristow case reference was made to failure to procure a signed waiver; that was the factual situation there and it was not to be ignored. Appellant also calls our attention to Clifton v. Meuser, 79 Kan. 655, 656, 100 Pac. 645. In that case the demand was duly exhibited and notice of hearing was duly given. The date fixed for hearing was within the statutory period. Two continuances were had, the hearing being actually held after the bar of the nonclaim statute had fallen. It was decided that the service of the written notice fixing a date when the demand would be presented to the probate court for allowance would be deemed to be commencement of an action so as to stop the running of the nonclaim statute, and that it was not necessary that it be decided or submitted for decision before the expiration of the period of limitation. An analogy is drawn between such procedure and the issuance of summons in an ordinary action. That analogy, however, cannot be too extended, for it is well recognized that an executor or administrator is without power to waive the statute of limitations or of nonclaim. (See Bristow v. First Trust Co., supra, and cases cited, and Hammond v. Estate of Hammond, ante, p. 113, 91 P. 2d 19.) Does it follow, however, that mere waiver of service of notice by an executor or administrator is sufficient to permit the claimant, without more, to await a time after the bar of the statute would otherwise have fallen, to go into probate court and have a hearing set for the allowance of his demand? On the contrary, does it mean any more than that the executor or administrator waives his right to ten days’ notice before he can be forced to a hearing on allowance of the demand, and that he consents it may be presented at any time within the statutory period, and not afterwards, bearing in mind that if presented in time, continuances after the first hearing date and final submission after the period had expired do not prevent a judgment on the claim? If appellant’s contention be correct, the mere waiver of notice by the executor or administrator would permit a claimant to withhold presentation until immediately before the estate was finally closed which, for good cause shown, might be delayed for months or years. The result would be that by indirection, an executor or administrator could waive the statute of limitations. The purpose of the statutes with reference to estates of deceased persons is that their property may be gathered together, the assets collected, the debts paid, so that what remains may be delivered to the legatees, devisees, heirs and distributees, as the case may be. A comparatively speedy result is contemplated. The statutes of non-claim require creditors to be vigilant and alert. Our conclusion is that where a claimant against the estate of a deceased person exhibits his demand to the executor or administrator and procures from him a waiver of the ten days’ notice of presentation of the demand to the probate court, in order to avoid the bar of the statute of nonclaim, he must, within the statutory period present his demand to the probate court and cause it to be set for hearing. The judgment of the district court was correct and is affirmed.

The opinion of the court was delivered by Scheoeder, J.: This is a wrongful death action brought by the parents of two young boys who drowned in a sand pit within the city limits of Wichita, Kansas. The case was tried to a jury on the theory of attractive nuisance and a verdict returned for the plaintiffs in the total sum of $52,024.02. From the judgment thereon appeal has been duly perfected by the defendants assigning various trial errors. Among the trial errors asserted, the appellants challenge the sufficiency of the evidence to support a verdict on the theory of attractive nuisance. The evidence discloses that Dean L. Bartlett, four years old, and Vernon A. (Buddy) Elliott, Jr., five years old, were playmates and resided near each other in the area of Southwest Wichita. The Bartletts were the parents of four other children under ten years of age, and the Elliotts had one other child, a three year old daughter. The Bartletts moved into the neighborhood in August, 1964, and the Elliotts in July of the same year. Both families were buying their homes which were situated in the 4500 block on South Charles Street. In the spring of 1966 the Elliott boy was a kindergartner in school, but the Bartlett boy was too young for school. The two boys were together whenever possible, and their mothers cooperated in the supervision of the children. Mrs. Elliott ordinarily cared for Mrs. Bartlett’s children when the latter was employed. Mrs. Bartlett on the day in question was working part time in the afternoon, but Mrs. Elliott was not caring for the Bartlett children because her daughter had “pink-eye,” which was contagious. However, a Mrs. Morrow had been hired to care for the Bartlett boy. On the afternoon of March 15, 1966, the Elliott boy came home from school at approximately 4:00 o’clock. He asked his mother if he could play with Dean and another five year old boy named Randy Schauner. Permission was given and Mrs. Elliott returned to care for her daughter. At that time the boys were in the front yard. Ten or fifteen minutes later Mrs. Elliott, not hearing the boys, went out to look for them. Soon Randy’s grandmother came to the Elliott home and told Mrs. Elliott the boys were at the sand pit, and Dean had his feet wet. Randy had run back to the pit and his grandmother wanted Mrs. Elliott to go to the pit and get them. The sand pit where the boys had gone was located on a forty-acre tract and occupied approximately fifteen acres, with an attained depth of nearly forty feet of water in places. The property upon which the sand pit was located was owned by the Davis Corporation (defendant-appellant-cross appellant) and operated by Marinas Heersche, d/b/a Wichita Big River Sand Company (defendant-appellant-cross appellee.) The south boundary of the tract upon which the sand pit was situated was 44th Street. On the south edge of the tract was an old three-strand barbed wire fence, partially down and in poor condition. South Charles Street, upon which the homes of the plaintiffs are located, dead-ends into 44th Street across from the tract in question. The plaintiffs’ houses are less than half a city block south of 44th Street. A second fence, approximately one hundred yards north of and parallel to the barbed wire fence, made of V-shaped mesh wire was “mashed down” and could be stepped over at a point north of the end of Charles Street. One block east of Charles Street the V-shaped mesh wire fence had a cut leaving an opening twelve feet wide. The south bank of the sand pit was approximately one hundred yards north of the V-shaped mesh wire fence. The surface of the water in the pit was twelve to eighteen inches lower than the bank, and a shelf covered with three or four inches of water extended for approximately four feet from the bank and then sloped steeply to a depth of about ten feet within ten feet of the shore. The sand pit contained pumping machinery on the north bank which could be seen from the plaintiffs’ houses. At least one raft, made of steel drums and a wooden platform used to support hoses or pipes employed in the sand pumping operation, floated free in the water at or near the south bank of the pit unattached to the pumping machinery or pumping operations at the pit. Although the water was not visible from the homes of the plaintiffs, the presence of the pit was commonly known to all of the residents of the neighborhood. A petition had been circulated in the neighborhood approximately a year prior to the incident to require the owners and operators of the pit to repair the fences, and children were known to have frequented the area. When Mrs. Elliott went to the sand pit on the afternoon in question she followed a path the boys had used in going to the sand pit. She stumbled over the V-shaped mesh wire fence where it was down, and continued on to the edge of the pit where she saw the body of her son floating face down in the water. After procuring help the body of her son was recovered, and the body of the Bartlett boy was later recovered by skin divers from the bottom of the pit. The questioning of Randy Schauner and investigation of the tragedy disclosed that the three boys boarded a raft at the south side of the sand pit. After the three boys had boarded the raft, it either floated out or was shoved off into the water. Before it got very far into the water Randy jumped off and walked to the bank. Randy then saw Dean trying to help the Elliott boy out of the water, and soon they were both in the water, when Randy ran home for help. Randy said all three boys had crawled onto the raft, and when it started to float toward the north they began to cry and jump off. The last he heard was one of the boys crying, “help, help.” The appellant Heersche contends the trial court should have found that an attractive nuisance did not exist at the sand pit as a matter of law. It is argued the specific conditions alleged to have created the attractive hazard were the water and the raft. Upon the theory that the evidence fails to establish an attractive nuisance, the appellant Heersche argues the appellants’ negligence in failing to maintain the fences around the artificial and hazardous body of water cannot amount to more than ordinary negligence, and the drowned children were remanded to the posture of trespassers. Heersche contends the attractive nuisance doctrine is not applicable to things which exist in the order of nature, such as pools or deep places in a river or creek. He relies upon cases which hold that the attractive nuisance doctrine is not applicable to artificially created things which virtually reproduce things found in nature—that nature does not maintain attractive nuisances. (Citing, Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018; Somerfield v. Power Co., 93 Kan. 762, 145 Pac. 893; Zagar v. Railroad Co., 113 Kan. 240, 214 Pac. 107; Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493; and McCormick v. Williams, 194 Kan. 81, 397 P. 2d 392, among others.) Heersche argues the danger from water was patent, and liability under the attractive nuisance doctrine must be based upon latent dangers. The evidence in the instant case, however, goes beyond the situations presented in the cases upon which the appellant Heersche relies. The attractive nuisance doctrine was held applicable where children lost their lives by drowning in Price v. Water Co., 58 Kan. 551, 50 Pac. 450; Kansas City v. Siese, 71 Kan. 283, 80 Pac. 626; Smith v. Evans, 178 Kan. 259, 284 P. 2d 1065; and Galleher v. City of Wichita, 179 Kan. 513, 296 P. 2d 1062. While the doctrine of attractive nuisance has been variously stated, it is in accord with the proposition tihat one who maintains upon his premises, a condition, instrumentality, machine, or other agency which is dangerous to children of tender years, by reason of their inability to appreciate the peril therein, and which reasonably may be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. (38 Am. Jur., Negligence, § 142.) In the early case of Price v. Water Co., supra, the court said: “. . . Without doubt, the common law exempts the owner of private grounds from obligation to keep them in a safe condition for the benefit of trespassers, . . . The common law, however, does not permit the owner of private grounds to keep thereon allurements to the natural instincts of human or animal kind, without taking reasonable precautions to insure the safety of such as may be thereby attracted to his premises. To maintain upon one’s property enticements to the ignorant or unwary, is tantamount to an invitation to visit, and to inspect and enjoy; . . . “. . . in the present case, the reservoirs had been so fenced as to render access to them difficult, to say the least, and in any event to operate as notice to stay on the outside because of the dangerous situation within. Whatever merit such precautionary measures might have under other circumstances, it is sufficient to say that, in this case, they were not reasonably effective; because it was the daily habit of trespassing boys to mount the fence and frequent the reservoirs on the inside, and this habit was known to the Company’s responsible agent, and was not only tolerated but went unrebuked by him. Knowing the fence to be ineffective either as barrier or warning, it was the duty of the Company to expel the intruders, or adopt other measures to avoid accident. . . .” (pp. 554, 556, 557.) Liability under the attractive nuisance doctrine must be based upon latent, not patent, dangers. (McGaughey v. Haines, 189 Kan. 453, 458, 370 P. 2d 120; and Brennan v. Kaw Construction Co., 176 Kan. 465, 271 P. 2d 253.) What the law considers to be a latent danger is not confined to things hidden from the eye alone. It extends to things hidden from the appreciation of the persons injured, hidden from the combination of eyesight and knowledge—hidden knowledge of the properties of the things which the eyesight observes. It may thus be said a concealed danger extends to things hidden from appreciation of persons injured, as well as to things hidden from the eye. (Brittain v. Cubbon, 190 Kan. 641, 378 P. 2d 141.) A situation analogous to the instant case was presented in Galleher v. City of Wichita, supra, where the attractive nuisance doctrine was applied to the drowning of a boy in a sand pit within the city limits of the city of Wichita in the year 1953. Without reviewing the Galleher case, we consider the holding therein persuasive in the instant case. The facts are sufficiently similar in the instant case to warrant its application here. Further discussion herein will proceed upon the assumption the reader has' familiarized himself with the Galleher decision. In 1963, ten years after the Galleher boy drowned, the city of Wichita passed ordinance No. 27-273 which is applicable herein. The pertinent provisions of the ordinance read: “Section 2: . . . It is hereby declared to be unlawful for any person to operate or maintain within the City of Wichita any borrow pit, sand pit or gravel pit unless the following conditions of operation, maintenance and public protection are established and maintained by the owner of such premises: “(1) A good and sufficient fence shall be constructed so as to completely enclose said borrow pit, sand pit or gravel pit. “(2) In no case shall the construction of the fence be within IS feet of the actual excavation at all points of said excavation and such fence may provide for reasonable access gates installed at the height of the fence, which gates shall be locked except during working hours when the pit is being used for the removal of sand, gravel or filling material or other business activity. Such fence shall be maintained in good repair. “(3) Such fences shall be a minimum height of fifty-eight inches (58") and shall be of the following types construction: “(a) A V-mesh wire or chain link fence; . . .” The intent and force of the foregoing ordinance is clear—it makes it unlawful to operate a sand pit unless certain protective measures for the benefit of the public are established by the owner of the premises. In the instant case sufficient evidence was presented to sustain a finding by the jury that an attractive nuisance existed on the appellants’ premises, and by reason thereof the appellants were obligated to exercise ordinary care in maintaining a fence required by the ordinance. Once it is established that an attractive nuisance exists to the satisfaction of the jury, simple negligence on the part of the appellants in failing to maintain an adequate fence as required by the ordinance would be sufficient to impose liability upon both the operator of the premises and the owner of the premises by virtue of the specific provisions of the ordinance. Those whose acts unite in producing the injury are jointly and severally liable to the injured party or parties. (Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; and Rork v. Beatty, 169 Kan. 320, 219 P. 2d 355.) Heersche also contends one of the elements essential to the applicability of the attractive nuisance doctrine is that the instrumentality alleged to be the attractive nuisance must itself have enticed the child onto the premises; if it attracts him after he already has become a trespasser, the doctrine is not applicable. (Citing McCormick v. Williams, supra.) This point is answered by Galleher v. City of Wichita, supra. The activities and pumping operations at the sand pit were visible and could be heard by the residents in the vicinity of the sand pit. The fact that boys had frequented the sand pit on prior occasions made the premises alluring, particularly where the boys had previous knowledge of the presence of the raft on the water available for play. Here the appellants knew that young children were attracted to the premises, although they argue the record shows that only boys twelve and thirteen years of age frequented the area, and that only on one prior occasion did a child of “tender years” play around the raft. The appellants attempt to distinguish the cases of Galleher v. City of Wichita, supra, and Smith v. Evans, supra, on the ground that the court was there dealing with demurrers to petitions requiring a liberal construction in favor of the plaintiffs. They argue this distinguishes them from the instant case because the plaintiffs here are not entitled to a liberal construction and the indulgence of the reasonable inferences in their favor. The fallacy in this argument lies in the fact that we are obligated to view the evidence upon which the jury found the facts in this case upon the same basis. (Thomas v. Kansas City Southern Rly. Co., 197 Kan. 747, 421 P. 2d 51; and Jarnagin v. Ditus, 198 Kan. 413, 424 P. 2d 265.) The appellants contend the trial court erred in not submitting the issues of the plaintiffs’ contributory negligence to the jury. After the pretrial order contributory negligence remained an issue in the case, but after the trial court heard the evidence it instructed the jury that as a matter of law neither set of parents was guilty of negligence in this case. The substance of the appellants’ argument is that although the parents of the children denied knowledge of the defects in the fences surrounding the sand pit, many of the witnesses called by the plaintiffs testified to such defects. They argue that the jury was entitled to determine from such conflict which of the witnesses to believe with reference to prior knowledge of the condition of the fences. The appellants did not introduce any evidence with respect to the contributory negligence of the appellees during the trial. All of the appellees’ evidence disclosed they properly exercised their duty to guard and warn their children as to the common dangers existing in the order of nature. Neighbors testified that the dead boys were absolutely normal children, well behaved and obedient. The evidence does not suggest and no inference can be drawn that the appellees were derelict in their duties or obligations as parents. We cannot say on the record here presented the trial court erred in withdrawing the issue of contributory negligence from the jury. The appellant Davis Corporation contends the voir dire examination of the jury by counsel for the appellees inspired passion and prejudice in the jury. The appellant Davis Corporation’s attack is not confined to any particular objection, but to a consideration of the examination of the jurors in toto. In a voluminous record submitted for review, sixty-seven pages are devoted to the voir dire examination. Without going into detail the court has thoroughly considered the record and concluded, in view of the large discretion vested in the trial court, that its rulings in the course of voir dire examination furnish no ground for reversal. (See Swift v. Platte, 68 Kan. 1, 72 Pac. 271, opinion on rehearing 68 Kan. 10, 74 Pac. 635; and Mathena v. Burchett, 189 Kan. 350, 369 P. 2d 487.) The record does, however, suggest an admonition. Mr. Relli states (Melvin M. Belli’s Modern Trials, Vol. § 121): “Voir dire of the prospective panel should be used to accomplish two purposes: one, obvious, the excusing or striking of unfavorable prospective jurors; and, two, the opportunity to meet and impress those who will become the ‘triers of the facts’ with the justiciableness of one’s cause. Counsel, in the latter phase, become friendly with, ‘meet’ the jurors. It is in trying to accomplish the latter that difficulty in conducting the voir dire sometimes results.” “. . . The second motive of trial counsel in the voir dire has probably been one of the factors impelling federal courts to conduct this examination without ‘aid’ from either counsel.” (p. 796.) Mr. Belli suggests that, as a practical trial advocate, counsel should do as much converting of the jury as the court will allow. The trial judge is under an obligation to see that a fair and impartial jury is selected. In doing so counsel should not be permitted to convert jurors to their cause by voir dire examination. If reasonable restraints upon counsel are abused to such an extent that opposing counsel is repeatedly required to object, the court, if necessary, should resort to the federal practice in a particular case and select the jury panel without the aid of counsel for either party. The appellant Davis Corporation contends the trial court erred in permitting the appellees to depart from the theory of the lawsuit established by the pleadings and pretrial order, and that it admitted evidence not identified in the pretrial order. Within reasonable limitations the theory upon which the petition was drawn, and the theory upon which the case was tried, conformed to the attractive nuisance doctrine as heretofore discussed. Complaint that the trial court admitted testimony of witnesses who were not named in the pretrial order lacks substantial merit. Thirteen witnesses were named in the pretrial order, and through oversight counsel for the appellees overlooked listing one. None of the witnesses listed was examined by counsel for the appellants prior to trial, and the trial court admitted the testimony of the witness whose name was omitted, because the witness had testified before objection was made to his testimony at the trial. The trial court found the appellants were not prejudiced. Counsel for the appellees had notified counsel for Heersche in advance that this particular witness would be called, thinking counsel for Heersche was working with counsel for the Davis Corporation in preparation of the defense and would inform him of the fact. This was not done. The pretrial order further provided that the appellees would introduce sixteen photographs. These photographs were not specifically identified in the order. During the proceedings out of the presence of the jury, counsel for the Davis Corporation objected to the introduction of three photographs not previously shown to counsel for the appellants. The trial court admitted only sixteen photographs in evidence and commented that the appellants were not prejudiced by the admission of the three questioned photographs in evidence. Large discretion is vested in the trial court in matters of this kind. In Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912, the court said: “The pretrial conference provided for by K. S. A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with the respective factual contentions of the parties upon matters in dispute, thus reducing the opportunity fox-maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. At pretrial conference the court may make any determination that will aid in the fair, orderly and efficient disposition of the action. . . . The matters specifically mentioned in the pretrial statute are not exclusive. Many courts have come to require advance identification of witnesses to be called at trial, which practice serves a useful purpose and is a proper judicial exercise. Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K. S. A. 60-216). This latter proviso reposes in the trial court a large discretion and it is the exercise of this discretion plaintiff claims has been abused to his prejudice. . . .” (pp. 519, 520.) (Emphasis added.) The appellants made absolutely no showing in the trial court that they were prejudiced in any way by the admission of the evidence to which they objected. Reversible error must be predicated upon prejudice. (Collins v. City Cab Co., 192 Kan. 394, 388 P. 2d 597.) Upon review of the record we cannot say the trial court abused the exercise of its power of discretion by the modifications permitted in the pretrial order. The appellant Davis Corporation contends instructions Nos. 6 and 8 permitted the jury to hold it liable for ordinary negligence in the event an attractive nuisance was not established. It is argued the trial court submitted the case to the jury as a simple negligence case and instructed that either violation of the city ordinance or maintaining an attractive nuisance was negligence. Technically, if these two instructions were isolated, the argument of the appellants may have some merit. But between instruction No. 6 and instruction No. 8 was No. 7 which reads: “A possessor or owner of property owes the duty to trespassers only to refrain from wilful and intentional injury. This rule applies equally to children of tender years as to adults. “An exception to this rule known as the attractive nuisance theory applies to children of tender years and jointly subjects the owner and operator of the premises to liability for the death of the plaintiffs’ children caused by some condition maintained on the premises if: “(a) It was known or in the exercise of ordinary care should have been known to them, that young children are likely to trespass upon the premises, and, “(b) It was known or in the exercise of ordinary care should have been known by them that certain conditions existed involving an unreasonable risk of harm or death to young children, and, “(c) Children, because of their youth, either did not discover the conditions or understand the danger involved, and, “(d) One using ordinary care would not have maintained the conditions when taking into consideration the usefulness of it, and whether or not the expenses or inconvenience to the defendants in remedying the conditions would be slight in comparison with the risk of death to the children.” When these instructions are read in sequence and construed with other instructions as a whole, as the jury was instructed, it cannot be said the instructions misled the jury, particularly where the evidence, as here, was not in substantial conflict as to the conditions giving rise to an attractive nuisance. The appellant Davis Corporation contends the forms of the verdict and instructions pertaining to joint liability of the appellants were erroneous. The question as to the joint liability of the appellants herein has heretofore been discussed. The trial court submitted only two verdict forms. One was intended as a general verdict for the plaintiffs and the other as a general verdict for the defendants. The Davis Corporation throughout the trial moved for a dismissal at appropriate times on the ground there was no evidence showing that it had control of or operated any of the equipment owned by Heersche. It was admitted that the Davis Corporation owned the site of the sand pit. In view of the evidence disclosed by the record on appeal, and ordinance No. 27-273, heretofore discussed (and upon which the jury was properly instructed), the verdict forms submitted were proper. If the plaintiffs below sustained their burden of proof and established liability on the part of the appellants, as the jury found they did by its general verdict, the appellants were jointly and severally liable. The appellants contend the verdict is excessive because it was for the statutory maximum of $25,000 plus the expenses of burial for each of the two deceased boys. The maximum authorized by law may be found in K. S. A. 60-1903 and 60-1904. The measure of damages for the wrongful death of any person is difficult for a jury to compute. When children of tender years are involved the difficulty is compounded. Questions as to how to compensate for the mental anguish, suffering or bereavement of parents, the loss of society and companionship of a four or five year old boy, the loss of filial care or attention which at best is anticipatory and speculative, are questions which the legislature has wisely placed in the hands of the court and jury. The burden of answering these questions is loaded with imponderables. The only limitation the legislature has placed upon the matter is the setting of a maximum limit. As of July 1, 1967, this maximum has been increased to the sum of $35,000. (K. S. A. 1968 Supp. 60-1903.) Reviewing the record in the light of our previous decisions, we cannot say the verdict approved by the trial court was excessive. (Hadley v. Security Elevator Co., 175 Kan. 395, 264 P. 2d 1076; DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527, and cases cited in these decisions; and see Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P. 2d 112.) Having thoroughly reviewed the voluminous record presented in connection with the points asserted by the appellants, we hold the appellants have failed to make it affirmatively appear the trial court committed reversible error in ruling upon any of the foregoing matters concerning which complaint is made. A cross appeal has been taken by the Davis Corporation from the order of the trial court dismissing its cross petition against the defendant Heersche. At the pleading stage of the case the Davis Corporation filed a cross petition against Heersche alleging a contract between them whereby Heersche agreed to indemnify and save harmless the Davis Corporation from all claims, liabilities and obligations by reason of Heersche’s operation on and occupancy of the premises involved in this litigation. A copy of the agreement was attached to the cross petition and made a part thereof. In the contract the Davis Corporation was entitled to indemnity from Heersche by virtue of an indemnity provision in the grant to remove sand and gravel in his operations on and occupancy of the premises. Heersche also contracted to keep the premises and operations insured within minimum limits of $25,000, the Davis Corporation to be carried as named insured. Heersche also agreed to comply with all laws and regulations of any municipal or governmental body that may affect his operations on the premises, violation of which would render Heersche liable to the Davis Corporation for any judgment obtained against the Davis Corporation for violation of a municipal law. After judgment was entered against the appellants in this case, Heersche filed a third party complaint bringing the Iowa Mutual Insurance Company of DeWitt, Iowa, and its general insurance agents located in Kansas into the case. In the third party complaint Heersche alleged, among other things, the Iowa Mutual Insurance Company by and through its agents issued an insurance policy to him whereby it agreed to pay on behalf of Heersche all sums which he became legally obligated to pay as damages because of bodily injury, sickness or disease, including death, at any time resulting therefrom sustained by any person and caused by accident. It further alleged the insurance company refused to pay the verdicts specifically set forth. The third party complaint also alleged a controversy between Iowa Mutual Insurance Company and Heersche as to the existence of a policy covering Heersche for the damages sustained by reason of the instant action. It also alleged that prior to the trial of the principal case Iowa Mutual Insurance Company could have settled the cases for $18,000 each or less, but refused to do so knowing that it intended to avoid full coverage under the policy. Further allegations were made respecting the failure of Iowa Mutual Insurance Company to pay the judgment in favor of the plaintiffs against Heersche and alleged acts of negligence on the insurance company’s part. Thereafter, Heersche and the Iowa Mutual Insurance Company joined in a motion to dismiss the cross petition of the Davis Corporation, and the trial court after hearing argument sustained the motion without giving any reasons, citing as its authority K. S. A. 60-214 (a) and Alseike v. Miller, 196 Kan. 547, 412 P. 2d 1007. In sustaining the motion to dismiss the cross petition of the Davis Corporation the trial court erred. The cross petition of the Davis Corporation was a cross-claim against a co-party defendant pursuant to a contract of indemnity and did not involve the third party practice contemplated by K. S. A. 60-214 (a) which was the subject of controversy in the Alseike case. (See, also, Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P. 2d 783, which adhered to the Alseike case.) In the instant case both Heersche and the Davis Corporation were made parties defendant by the plaintiffs in their action for damages. After judgment in this case the status of the defendants with respect to the plaintiffs was that of joint tortfeasors, but as between the two defendants the liability was controlled by a contract of indemnity. Under these circumstances the Davis Corporation was entitled to cross-claim against Heersche as a co-party defendant pursuant to K. S. A. 60-213 (g). (See 1A Barron and Holtzoff, Federal Practice and Procedure, § 397, p. 598; and Card, Kansas Code of Civil Procedure Annotated, § 60-213 [g], p. 70.) The situation here presented was specifically excepted from the ruling in the Alseike and Russell cases. The provisions of 60-213 (g) are identical to Federal Rule No. 13 (g) and federal cases construing this section authorize the cross-claim under circumstances disclosed by the record herein. (Sebo v. United Air Lines, 10 F. R. D. 327 [S. D. N. Y. 1950]; and Winikoff v. United Air Lines, 10 F. R. D. 474 [E. D. N. Y. 1950].) Accordingly, the judgment of the lower court dismissing the Davis Corporation’s cross petition against Heersche must be reversed. The judgment of the lower court is affirmed as to the appeal and reversed as to the cross appeal.

The opinion of the court was delivered by Fromme, J.: An action was brought to determine rights in a written contract to buy and sell a house and lot in Mission, Kansas. The action was between the original parties to the contract. The plaintiff-appellee, First Construction Company, Inc., is a builder of houses. It entered into the agreement with defendants-appellants, Steven C. Gallup and Myrtle A. Gallup, his wife. The trial court found there was a balance due plaintiff on the agreement of $14,060.35 plus interest. The court gave defendants sixty (60) days from August 8, 1968, to pay this balance into court. In event this payment was made defendants were to receive a deed to the premises and other documents assuring them of clear title. Under the court’s decree if payment was not made the contract rights of the defendants were forfeited and plaintiff was to be placed in possession. The defendants appeal from this judgment and contend the correct balance due is $7,000 as stated in the written contract. The contract states the total sale price of the property is $15,470. The contract was duly executed and it recites a down payment was made of $8,470. Receipt of this amount is acknowledged in the instrument. The contract further provides the balance of $7,000 shall be paid in cash on delivery of the deed. After a trial to the court, the cotut found the down payment of $8,470 was never paid. That finding was based upon parol evidence. At the time Steven C. Gallup entered into the contract he was employed by plaintiff as a real estate salesman. He was paid commissions based upon his sales. The court made written findings which in substance included the following: It was the intention of the parties when the contract was executed that the down payment, $8,470, be paid out of real estate commissions. At that time some commissions were due. However, Mr. Gallup drew a substantial part of his commissions in cash and his services as a salesman were terminated before the earned commissions amounted to $8,470. He never paid any part of the down payment. The defendants occupied the property from November, 1966, and paid nothing for the use of the same. The reasonable rental value of the property was $140 per month. At the time of the trial there were commissions due the defendant Steven C. Gallup in the amount of $1409.65. The judgment and decree of the court provided in event the defendants completed the contract the $1409.65 in earned commissions was to be allowed as a credit, and the balance of $14,060.35 was to be paid into court. In event the defendants did not complete the contract the $1409.65 was to be retained by plaintiff in full payment for the use and occupancy of the property by the defendants. Complete findings of fact, upon which the judgment of the trial court is based, are set forth in the record on appeal. Because of the limited question of law involved in this appeal it is not necessary for us to set out in detail the findings of the court. Suffice it to say, the findings of the court are supported by the evidence if the trial court properly admitted and considered parol evidence. The appellants contend parol evidence was not admissible to show nonpayment of the $8,470. It is argued that such evidence varies and contradicts the terms of the valid contract of sale and violates the parol evidence rule. They argue that under this rule the intent of the parties must be determined from the contract and parol evidence is not admissible when the intent is clear. (Williams v. Safeway Stores, Inc., 198 Kan. 331, 424 P. 2d 541; Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799.) This is the genex'al rule as applied in those cases. However, the right to show the true consideration for a written contract is a qualification of this general rule on admissibility of parol evidence to alter the terms of a written contract, and is as well established as the rule itself. In dealing with this exception in Rice v. Rice, 101 Kan. 20, 165 Pac. 799, the court said: "A case in point is Campbell v. Davis, et al, 94 Miss. 164. The parol evidence went to show that the actual consideration was $200, but that at the payee’s request the amount was stated as $700 in order that the payee might use the paper as collateral. The court held that this does not violate the rule against parol evidence to vary a writing, but is merely showing the real consideration for the note. . . .” (p. 24) None of the cases cited by appellants hold that parol evidence is inadmissible to show the correct amount of the cash down payment. The parties to this action are the original contracting parties. The rights of innocent holders are not involved. Our statutes control in the present case. K. S. A. 16-108 provides: “The want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith.” In the present action appellants asked for specific performance of the contract in their counterclaim. In defense appellee is authorized by the statute to show a want or failure of consideration stated in the written contract. The statute contemplates both oral and written, evidence on the subject. An identical statute was considered in the case of Dodge v. Oatis, 27 Kan. 762. In that case the consideration for a promissory note-was an oral agreement to furnish valuable papers to the promissor. The papers were never furnished. Speaking on the question of admissibility of parol evidence the court said: “Now this evidence certainly tended to show a failure of consideration for the-note; and it does not tend to contradict or vary any of the terms or conditions. contained in the note. A total or partial failure of consideration of a contract, whether the contract is in writing or not, may always be shown. (Comp. Laws of 1879, p. 209, § 8;) and a contemporaneous verbal agreement, which does not contradict or vary the terms of the written contract, may also be shown. [Citing cases.]” (p.763) In the recent case of Ferraro v. Fink, 191 Kan. 53, 379, P. 2d 266, it was said: “. . . Where consideration for a contract is controverted, the conflict between testimony of what of consideration and a statutory presumption of valuable consideration [See K. S. A. 16-107] is sufficient to require a submission of the question of consideration to the jury. (53 Am. Jur., Trial § 2261, pp. 220, 221.)” (pp. 56, 57) In an action between original parties to a written contract parol determination necessary and found no part of the down payment had been paid in cash. In the present case the court was the trier of fact. It made the evidence is admissible to show a cash payment acknowledged in the contract was never paid. In such case parol evidence is admitted, not to vaiy or contradict the terms of the written contract but to enable a court to enforce the terms and provisions. A court must first determine the respective rights which have accrued under a contract in order to enforce the remaining obligations. In such case parol evidence is necessary and proper to show non-receipt of a payment specified in the writing. The trial court properly admitted parol evidence in this case to show the down payment acknowledged in the written contract was never paid. Judgment is affirmed.

The opinion of the court was delivered by Kaul, J.: This is a garnishment action in which plaintiff-appellee recovered a judgment in the district court against the garnishee, State Farm Mutual Automobile Insurance Company (hereafter referred to as insurer or State Farm). The overall issue is whether the provisions of the Kansas Motor Vehicle Safety Responsibility Act (herein designated as the Act) K. S. A. 8-722, et seq., and in particular 8-750 (b), now 1969 Supp. (commonly called “the omnibus clause” provision) apply to an automobile liability insurance policy issued by State Farm to the parents of defendant, James W. Jackson, Jr., when the policy had not been certified as proof of financial responsibility pursuant to K. S. A. 8-748 or 8-749. Specifically, as applied to the facts of this case, the question is whether a driver exclusionary endorsement attached to a policy, not certified, pursuant to 8-748 or 8-749, supra, is invalidated by the application of the Act. Material facts are stipulated by the parties and the issue is presented in the form of a clear-cut question of law. Plaintiff recovered a judgment against James W. Jackson, Jr., for personal injuries suffered in an automobile accident. At the time of the accident James W. Jackson, Jr., was driving the insured automobile with the implied permission of his parents, but unaccompanied by either of them. James W. Sr. and Dorothy Maxine Jackson were made defendants in the first instance, but later dismissed from the action which proceeded to trial on September 13, 1966, when judgment was entered for plaintiff against James W. Jackson, Jr., in the amount of $5,000.00. The judgment was not paid and, on plaintiff’s initiative, an order of garnishment was served on State Farm on June 15, 1967. State Farm filed an answer of garnishee denying any indebtedness to defendant and alleged that it had no property in its possession or under its control belonging to defendant. State Farm alleged that it had issued a policy of insurance to James W. Jackson, Jr., on August 21, 1962, but cancelled it effective September 2, 1962. State Farm admitted that it had issued the policy in suit to James W. Jackson, Sr., and that it was in effect on the date of the accident. State Farm denied any liability on this policy by reason of a driver exclusion endorsement which excluded liability while any automobile insured under the policy was operated by James W. Jackson, Jr., except if he were accompanied by the named insured or his spouse. It was further alleged the endorsement was attached pursuant to a driver exclusion agreement, entered into between insurer and insured, on August 30, 1962. State Farm alleged that, by reason of the Jacksons’ agreeing to and accepting the driver exclusion agreement, it was induced not to cancel the policy but to continue it in force with the driver exclusion endorsement attached, and the Jacksons by their action and conduct have waived any right to deny the validity of the agreement and endorsement. For his reply to the answer of garnishee, plaintiff alleged the driver exclusion agreement was void, as against public policy, and denied that he was estopped from claiming coverage under the policy. The trial court found that the Kansas Financial Responsibility Law requires that all automobile liability insurance policies contain omnibus coverage whether or not the policy has been certified under the Act, and then reasoned that the driver exclusion endorsement was contrary to the Financial Responsibility Law of Kansas and against public policy. The policy in suit appears to be a standard form, formulated for the purpose of complying with the laws of all states wherein the company does business. Under coverage (A) the insurer is obligated to pay all damages which the insured shall become legally obligated to pay because of bodily injury sustained by other persons, and under coverage (B) for injury to or destruction of property of others, caused by accident arising out of ownership of the automobile. The definition of “named insured” includes the spouse of insured and with respect to coverages (A) and (B) includes not only the named insured but also his relatives and “any other person while using the automobile, provided the actual use of the automobile is with the permission of the named insured.” This definition of insured amounts to what is commonly called an “omnibus clause.” The coverage afforded any other person, while using the automobile, conforms essentially with the language required by the omnibus clause provisions of our Act (8-750 [b], supra.). With respect to conformity with Financial Responsibility Laws, the policy provides: “Financial Responsibility Laws. When certified as proof of future financial responsibility under any motor vehicle financial responsibility law and while such proof is required during the policy period, this policy shall comply with such law if applicable, to the extent of the coverage and limits required thereby; but not in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.” (Emphasis supplied.) The inclusion of the phrase “when certified” shows that this conformity clause does not mean that the policy must conform with the Act before the Act applied to the insured. With respect to conformity with general statutes in states where the company does business, the policy provides: “Terms of Policy Conformed to Statutes. Policy terms which are in conflict with the statutes of the State wherein this policy is countersigned are hereby amended to conform to such statutes.” The effect of this provision is to bring the policy into conformance with requirements of the insurance codes and regulations of the commission or department of the various states, as distinguished from the conformity clause with respect to financial responsibility laws. The purpose of State Farm in securing the driver exclusion agreement was to exclude the liability which otherwise would have attached under the omnibus clause of the policy when James W. Jackson, Jr., was using the automobile with permission of his parents. The driver exclusion agreement reads: “Driver Exclusion Agreement “Policy number 700 904-E20-16 “To induce the State Farm Mutual Automobile Insurance Company to continue to insure the automobile described in the above-numbered automobile insurance policy, I agree to the immediate addition to said policy of an endorsement containing the following provisions: “In consideration of the premium at which the policy is written it is agreed that the company shall not be liable and no liability or obligation of any kind shall attach to the Company for losses or damage sustained while any automobile insured hereinunder is driven or operated by James W. Jackson, Jr., except when accompanied by the named insured or the named insured’s spouse. “I further agree to the inclusion of the above endorsement in any transfer, reinstatement or renewal of said policy. “This agreement is effective “12:01 A.M. 8 30 62 “Month Day Year “Signature of Policyholder “/s/ James W. Jackson “/s/ Dorothy Maxine Jackson “Signature of Agent “/s/ J. H. Bosley.” Pursuant to the agreement an endorsement was attached to the policy excluding liability when James W. Jackson, Jr., was using any automobile insured under the policy unless he was accompanied by the named insured or his spouse. This endorsement, plaintiff claims, violates the requirements of subsection (2) of the omnibus clause of 8-750 (b), supra, which reads in pertinent part: “(b) Such owner’s policy of liability insurance: (1) Shall designate by explicit description or by appropriate reference all vehicles with respect to which coverage is thereby to be granted; and (2) shall insure the person named therein and any other person, as insured, using any such vehicle or vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such vehicle or vehicles within the United States of America or the Dominion of Canada. . . .” The plaintiff rests his entire case on the proposition that since 8-750 (b) commences with the phrase “Such owners policy of liability insurance: (1) Shall . . . .” that, therefore, the provisions of the Act apply to all automobile liability policies regardless whether they were filed or certified pursuant to the provisions of the Act, as proof of financial responsibility. Plaintiff says that when a statute is applicable to a policy of insurance, the provisions of the statute are entered into and form a part of the policy, and in case a provision of the policy or an exclusion conflicts with a provision of the policy, the statute controls. We agree with plain tiff's statement in this regard, but it begs the question in the instant case which is whether the Act is applicable. Plaintiff argues that no contract of insurance can conflict with the legislative purpose of the Act and cites Agee v. Kansas Highway Commission, 198 Kan. 173, 422 p. 2d 949, where we held: “The purpose of the Kansas Motor Vehicle Safety Responsibility Act is to provide protection for members of the public in their use of the highways within this state by eliminating the recldess and irresponsible drivers by requiring, among other means, security from drivers and owners of motor vehicles involved in motor accidents.” (Syl. ¶ 1.) The purpose of the Act as stated in Agee follows that proclaimed by the legislature (See Laws of 1957, Chapter 68) and we adhere to it, (See, also, State v. Finley, 199 Kan. 615, 433 P. 2d 414), but it does not answer the question before us. The Agee and Finley cases dealt with the security provisions of the Act and the application thereof to situations where an uninsured owner or driver of an automobile involved in an accident, resulting in damages amounting to more than $100, had failed to meet the security requirements of the Act, and thus became subject to suspension provisions of the Act. Our present Act was adopted in 1957, effective January 1, 1958, and replaced what was previously known as the Proof of Financial Responsibility Law (G. S. 1949, 8-701 to 8-721). The effect of the new Act generally was to add security-type provisions to the previous proof-type law. It conformed generally with parallel provisions of the Uniform Vehicle Code. (Uniform Vehicle Code, Financial Responsibility, Chapter 7, p. 75.) The legislative history of the Kansas Act is traced in a comprehensive discussion of the subject in Vol. 6 Kansas Law Review, p. 358. The interested reader may also find background material leading to the Í957 enactment in an exhaustive review of the laws of other states in Kansas Legislative Council Publication No. 204, published September, 1956. The portion of our present Act dealing with the posting of security following an automobile accident now appears as K. S. A. 8-723 to 8-738, inch, and those provisions relating to proof of financial responsibility, with which we are concerned, appear as K. S. A. 8-739 to 8-769, inch For purposes of this opinion a detailed analysis of the entire Act is unnecessary. A brief résumé of pertinent sections, as they bear on the case, will suffice. K. S. A. 8-739 [now 1969 Supp.] sets out the conditions when proof of financial responsibility is required in order to forestall suspension of operating privileges. The term “proof of financial responsibility” as used in the Act is defined in K. S. A. 8-740 [now 1969 Supp.] and the amount in dollars is fixed for the several conditions of liability which might arise out of the ownership or use of a motor vehicle “on account of accidents occurring subsequent to the effective date of said proof.” (Emphasis supplied.) Subsequent sections of the Act deal with the reporting of unpaid judgments, the terms and conditions upon which operating privileges are to be suspended by the Motor Vehicle Department; procedures for the payment of judgments, so as to satisfy the requirements of the Act, and alternative methods of furnishing proof of financial responsibility. K. S. A. 8-748 specifically provides for the method of furnishing proof by filing a certificate of an authorized insurance carrier that a motor vehicle liability policy is in effect and for the benefit of the person required to furnish proof. K. S. A. 8-749 provides for a means of furnishing proof by a nonresident. The section of primary importance to our decision is K. S. A. 8-750 [now 1969 Supp.] which defines “motor vehicle liability policy” and sets out the various requirements in order that a policy shall comply with the purpose of the Act. Subsection (a) reads: “(a) A motor vehicle liability policy’ as said term is used in this act shall mean an ‘owner’s policy’ or an ‘operator’s policy’ of liability insurance, certified as provided in section 27[8-748] or section 28[8-749] of this act as proof of financial responsibility, and issued, except as otherwise provided in section 28[8-749], by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.” (Emphasis supplied.) A policy, if certified, is required to include an “omnibus clause” by the provisions of subsection (b), which we have heretofore recited. Subsection (†) is often referred to as a “frozen” or “absolute” liability provision in discussions of financial responsibility laws. It provides that with respect to insurance required by the Act the liability of an insurance carrier shall become absolute, whenever injury or damage covered by the policy occurs. This subsection, in other words, cuts off policy defenses which might otherwise be available to a carrier after a policy is certified and injury or damage occurs which is covered by the policy. Provision (4) of subsection (f) reads: “The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of this act shall constitute the entire contract between the parties.” (8-750, supra.) The plaintiff says that the omnibus coverage section (8-750 [&]) should be applied to all liability policies as a matter of public policy and cites cases from Nebraska, California and Arizona in support of his position. However much we might be inclined to plaintiff’s point of view that our Act should control the provisions of all motor vehicle liability insurance policies, whether certified to meet requirements of the Act or not, we are precluded by explicit language of our Act as well as authoritative court decisions. The term “motor vehicle liability policy” is used in the Act to describe insurance coverage which is sufficient to meet requirements of the Act as proof of an owner’s or operator’s financial responsibility. When a policy is certified pursuant to either 8-748 or 8-749, supra, it establishes proof of ability to respond in damages for liability on account of accidents occurring subsequent to the effective date of said proof by the plain language of 8-740, supra. Kansas law does not require proof of financial responsibility as a prerequisite to granting the privilege of operating an automobile. Thus the Kansas Act is voluntary, rather than a compulsory financial responsibility act. (12 Couch on Insurance 2d, §§ 45:739-740, p. 650.) By the explicit phrases and terminology used it is intended to operate prospectively. Since certification of the policy is not required in advance of the first accident or the occurrence of another event requiring proof, the Act is not applicable so as to make omnibus coverage and other requirements of the Act a part of the policy. As stated in Agee v. Kansas Highway Commission, supra, we recognize and approve the laudable objectives of our Act, but in determining its application we are confined to the specific limitations prescribed by the legislature. No general statement of public policy can override or add to the plain provisions of the Act. (Western Alliance Insurance Company v. Albarez, [Tex. Civ. App.], 380 S. W. 2d 710.) As we declared in Agee the primary purpose of the Act was to provide protection for the public and elimination of irresponsible drivers, not the regulation of insurance companies, which we would in effect be undertaking if we were to read the requirements of 8-750, supra, into every voluntary motor vehicle liability policy. Kansas, unlike some States, (See 7 Am. Jur. 2d, Automobile Insurance, § 109 “Omnibus Clause,” p. 420.), does not have a general statute requiring the inclusion of an omnibus clause in a motor vehicle liability insurance policy. Thus, if an omnibus clause is to be read into the policy in suit, so as to void the driver exclusionary endorsement, such must be accomplished by imposing on the policy the requirements of the Act. Although it has been litigated in many other states, the question, heretofore, has not been squarely presented to this court. However, language used in our opinion in the case of Marley v. Jersey Insurance Co., 189 Kan. 658, 369 P. 2d 783, could reasonably be said to forecast this courts’s answer to the question. The Marley case dealt with the effect of failure by an insurance company to comply with procedural requirements of security provisions of the Act after the first accident involving the insured. In holding the insurer not barred from defending under a policy exclusion, we referred to decisions of other states, as to the application of the Act, and said: “The various decisions from sister states do not show that contracts can be made over and held for naught under statutes like our Safety Responsibility Act.” (page 660.) The security portions of the Act provide for the posting of security following an automobile accident. The financial responsibility sections relate to the furnishing of proof of financial responsibility for the future and have reference only to future accidents. Insurance policies are restricted to persons mentioned in the Act from whom the department of motor vehicles may require proof of financial responsibility. The requirements of the Act do not enlarge the insurer’s obligation where the insured has done nothing requiring his compliance with the financial responsibility law. There is no contention here that James W. Jackson, Sr., had committed any such act. Because of limited time and space we shall not attempt to discuss individually the many cases from other jurisdictions supporting our holding. The question is the subject of an exhaustive annotation in 8 A. L. R. 3d, commencing at page 388, and recent cases from more than twenty-five states are collected and examined therein, and in the 1969 supplement to the annotation. Some of the decisions deal specifically with the effect of the Act on a driver exclusionary clause or endorsement, for example Western Alliance Insurance Company v. Albarez, supra; many other cases deal with the application of “absolute liability” provisions of respective financial responsibility laws, which involves the same principle. Some of the decisions are federal court interpretations of state statutes in diversity cases. Keeping in mind the restriction of our Act to a policy that has been “certified” under the definition in 8-750 (a), supra, reference to “subsequent” accidents in the definition of proof of financial responsibility in 8-740, supra, and the qualification “when certified” in the financial responsibility laws conformity clause of the policy in suit (the parties may contract otherwise), we believe our holding to be in line with the overwhelming majority of decisions dealing with similar policies and laws. We agree with the rationale of these decisions and find it applicable and controlling under the salient features of the instant case, which we have pointed out. The rationale of the decisions referred to was stated in Gabler v. Continental Casualty Company (Mo. App.) 295 S. W. 2d 194, and adopted and quoted in United States Casualty Company v. Brock, (Tex. Civ. App.) 345 S. W. 2d 461: “ ‘The rationale of these cases is that the safety responsibility laws do not provide for compulsory motor vehicle liability insurance; that they are prospective in intendment, operate in futuro and are based upon the philosophy that every dog is allowed by the law one free bite; that such laws apply to a second accident and not to a first accident; that there is no requirement that the owner or operator of a motor vehicle carry a policy of liability insurance or that it contain any particular provisions unless and until the safety responsibility law has been invoked by the occurrence of some event resulting in the order of a state official that security be deposited or that proof of financial responsibility be made; that the policy must be a “required” policy before the provisions of the safety responsibility law are to be incorporated therein.’ ” (p. 464.) Other authorities supporting the rationale may be found in 7 Am. Jur. 2d, Automobile Insurance, § 7, pp. 299, 300; 7 Appleman on Insurance Law and Practice § 4295, pp. 102, 105 and 106; and 12 Couch on Insurance 2d § 45:739, p. 650. We are not unmindful of the Arizona, Nebraska and California cases cited which support the contrary view advanced by plaintiff. Excluding Massachusetts, New York and North Carolina, which now have compulsory laws, o£ the other states with similar statutes wherein the question has been adjudicated, it appears from our limited research that only Arizona and California follow the contrary rule with respect to voluntary policies containing insuring agreements similar to those of the policy in suit. The Arizona rule is found in Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P. 2d 145. A recent discussion of the California rule may be found in Bohrn v. State Farm Etc. Ins. Co., 226 C. A. 2d 497, 38 Cal. Rptr. 77. The Arizona and California courts rest their respective decisions generally on the proposition that public policy, as it is declared to be in each state, compels the rejection of respective statutory and policy provisions to the contrary. There is some indication that Nebraska either followed the public policy doctrine with respect to omnibus coverage or treated the Nebraska statutory provision as a general omnibus statute (Protective Fire & Cas. Co. v. Cornelius, 176 Nebr. 75, 125 N. W. 2d 179), but now follows the prevailing rule that the first accident is not within the purview of the Motor Vehicle Safety Responsibility Act, following an amendment to the Act in 1965, section 60-561, R. R. S. 1943; Reserve Ins. Co. v. Aquilera, 181 Nebr. 605, 150 N. W. 2d 114. The plain language of the Kansas Act compels our conclusion that the first accident is not within the purview of the Act, nor does the Act have any application to a motor vehicle liability policy which has not been used as proof of financial responsibility. The judgment is reversed.

The opinion of the court was delivered by Kaul, J.: This is an action by plaintiff, Unified School District No. 255, to recover equitable payment from defendant, Unified School District No. 254, under the provisions of K. S. A. 1965 Supp. 72-6776 [now K. S.A. 1968 Supp.]. The action stems from the division and disorganization of Rural High School District No. 7, Barber County, by the unification of Barber County on July 1, 1966, into two unified districts which are the parties to this action. There were some deviations from the county line between Barber and Pratt counties which are immaterial to the issues herein. The underlying issues on appeal concern the constitutionality of 72-6776 and its application to the facts of the case. The action below terminated in a judgment in favor of plaintiff district in the amount of $46,650.50, from which defendant district has appealed. Plaintiff district has cross-appealed as to the amount of the judgment, claiming its theory as to the application of 72-6776 should have been adopted by the trial court and a judgment entered for an equitable payment in the amount of $81,221.78. There is no dispute about the facts but the materiality thereof is questioned in certain instances. We shall refer to plaintiff-appellee as plaintiff, or No. 255, to defendant-appellant as defendant, or No. 254, and Rural High School District No. 7, which was disorganized by unification, as RHS No. 7. Under the Second Unification Act (Laws of 1965, Chapter 420), Barber County, on July 1, 1966, was divided into two unified districts; USD No. 255 consisting of the southern part of the county, with its office at Kiowa; and USD No. 254 consisting of tire northern part of the county, with its office at Medicine Lodge. Disorganized RHS No. 7 was divided between the two new unified districts, 84.88 percent of its territory, calculated on assessed valuation, was attached to No. 254 and the balance, consisting of 15.12 percent was attached to No. 255. The unification also disorganized several other smaller districts, three of which were divided by the detachment of a small portion of the preexisting territories. RHS No. 7 owned a high school building, constructed in 1960-61 at Medicine Lodge, for which RHS No. 7 incurred a bonded indebtedness of $490,000.00. On July 1, 1966, a balance of $370,000 remained which was further reduced by a payment on September 1, 1966, of principal and interest which had been raised by levy and budgeted in the amount of $38,318.96. As a result, at the time of unification, the bonded indebtedness on RHS No. 7 amounted to $346,000.00, the sum to be considered in this action. Under the provisions of K. S. A. 1965 Supp. 72-6775 (c) [now K. S. A. 1968 Supp.], and K. S. A. 10-119, the balance of the bonded indebtedness of RHS No. 7 remained a charge upon the territory even though the district was disorganized. The division of disorganized RHS No 7, with its building in Medicine Lodge attached to No. 255, and the remaining bonded indebtedness of $346,000, brought into play the provisions of 72-6776 which read as follows: “(a) Where a unified district acquires a school building of a divided disorganized district and the bonded indebtedness for such building is only partly paid, the unified district acquiring such building may either pay to or receive from each other district or districts in which any part of the territory of the disorganized district is located an equitable payment. Such equitable payment, if any, shall be determined as follows: (1) The boards of the interested districts shall negotiate and agree upon such payments, if possible; (2) if such agreement cannot be reached, the board of any interested district may file an action at any time after January 1, 1967, and before January 1, 1968, in the district court of the county in which such school building is located, to determine such equitable payments; (3) the district court in which such an action is filed shall determine venue of the action, and if venue is found to be in such court, shall appoint a commissioner and may appoint appraisers to determine any facts or valuations that the court deems material; (4) the commissioner, and appraisers if any, shall report their findings to the court together with any recommendations requested by the court; (5) the court may hear evidence and shall hear arguments of interested districts; (6) thereafter the court shall issue its order determining such equitable payments, if any, allowing rasonable fees to the commissioner and appraisers, if any, and assessing the costs of action, including such fees, to the litigants or any one or more of them. “(b) Any unified district making payments under this section is authorized to levy taxes over a period of three (3) years to obtain funds to make such payments, and such levy shall be in addition to all other tax levies authorized or limited by law and shall not be subject to or within any aggregate tax levy limit. “(c) Such equitable considerations as are deemed, by such negotiating boards or such court, to be appropriate may be considered.” Following the unification and the disorganization of RHS No. 7, the Boards of No. 254 and No. 255 met and attempted to negotiate and agree upon an equitable payment as provided for in 72-6776. Their efforts were unsuccessful. Thereafter, on August 29, 1966, which was within the time specified in 72-6776 (a) (2), No. 255 filed this action. The district court, as provided for in 72-6776 (a) (3), determined venue and appointed Paul R. Wunsch, of Kingman, as commissioner to determine appropriate and necessary facts and make proper recommendations to the court as to whether or not No. 254 should be ordered to make equitable payments to No. 255, as contemplated by 72-6776, and if such payments were recommended the amount was to be specified. Thereafter, the commissioner proceeded to hold a hearing at which many of the facts were stipulated and written evidence was offered by the respective parties. Subsequently, the parties submitted supplemental offers of evidence, consisting of information which was agreed to be true and correct, but each party objected to the materiality of some of the evidence offered by the other. The commissioner considered all of the information which was submitted, even though he noted some was immaterial. All of the information was made a part of his report so, as he says, it might be of some assistance to the court in determining the issues presented. The commissioner found 72-6776 to be constitutional, although he expressed misgivings in this regard. The commissioner determined since No. 254 acquired the portion of RHS No. 7, which included the high school building, an equitable payment should be made by No. 254 for the benefit of the taxpayers of that portion of RHS No. 7, which became a part of No. 255. The commissioner calculated what he considered to be an equitable adjustment, based primarily on the remaining bonded indebtedness of RHS No. 7, at the time of the unification. He concluded that an equitable payment of $41,500.00 should be made by No. 254 to No. 255 for the benefit of taxpayers formerly in the territory of RHS No. 7, but who now were in No. 255. Roth parties filed motions to confirm the report of the commissioner with certain exceptions. There was no request by either party to present additional evidence to the court. The court struck findings of the commissioner with respect to an offset in the amount of $5,150.50, which the commissioner had determined to be a lump sum equitable adjustment by reason of the fact that disorganized School District No. 28 (Sharon) and disorganized School District No. 43 (Isabel), both had school buildings and facilities and were maintaining schools, but became a part of No. 254. The result of the trial court’s determination was to reinstate the amount of $46,650.50, arrived at by the commissioner, before making the lump sum offset referred to. Except for several findings, which were stricken on the ground of immateriality, the commissioner’s report was otherwise approved and adopted by the court. Findings and computations made by the commissioner and the trial court will be discussed further in the second chapter of this opinion. We shall consider first defendant’s attack on the constitutionality of 72-6776, supra. No complaint is made concerning the procedural steps enumerated in subsections (a) and (b). The challenge is directed specifically at subsection (c). Prefatory to our consideration of the contentions of defendant, we refer to long and well-established rules of this jurisdiction that the constitutionality of a statute is presumed and that all doubts must be resolved in favor of its legality and before the statute may be stricken down it must clearly appear the statute violates the constitution. (See Hatcher’s Kansas Digest [Rev. Ed.], Constitutional Law, § 16; West’s Kansas Digest, Constitutional Law, § 48.) The ambit of judicial examination of a law is prescribed in State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P. 2d 71, where it is held: “Judicial examination of any law enacted by the legislature proceeds on the assumption that it is valid unless it contravenes an express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument, and an act of the legislature is not to be stricken down on the ground it is unconstitutional unless infringement of the superior law is clear beyond substantial doubts” (Syl. ¶ 2.) Defendant claims the use of “such equitable considerations as are deemed appropriate,” in determining the equitable payment as directed in subsection (c) is insufficient to meet constitutional re quirements of statutory definiteness and certainty. It is argued the language used does not prescribe a certain or fixed guideline and therefor the statute must fall. We cannot agree with the position taken by defendant. Although neither 72-6776 nor its immediate predecessor K. S. A. 72-6751 [repealed, Laws of 1965, Ch. 420, Sec. 29] have been considered by this court, the application of equitable considerations in resolving problems arising from a transfer of school district territory is not a new subject in this jurisdiction. The matter has had the attention of the legislature and courts since 1868. Under the provisions of G. S. 1868, ch. 92, §§ 50, 51, where a new school district formed in part from territory previously belonging to another district, possessing a school house, the county superintendent was directed to determine the proportion of the value of such school house or other property justly due the new district. Although not challenged on constitutional grounds, the 1868 statute was considered in School District v. The State, 15 Kan. 43, where the county superintendent failed to make the required determination until seven months after the new district was formed. In this early case the application of equitable principles in adjusting inequities, following a change in school district territories, was recognized. The court stated: “. . . It is fair, and just, and equitable, when a school district is divided into two new districts, that each should have its fair proportion of the value of the property belonging to the old district at the time of the division. Or what is the same thing, it is fair when a new district is carved out of an old one that the new district should have its fair proportion of the property or value thereof which belonged to the old district at the time the new one was created. And this fairness, equity and justice we think is more of the essence of the law, than mere time in making the apportionment. . . .” (p. 47.) In School District v. School District, 32 Kan. 132, 4 Pac. 189, it was held a divided district was “equitably” entitled to an apportionment made by the county superintendent. The decision in Board of Education v. School District, 45 Kan. 560, 26 Pac. 13 (1888), indicates that equitable considerations compel an equitable adjustment even in the absence of any statutory direction. This case arose prior to the enactment of legislation providing for an adjustment when a school district is divided by an extension of city limits. The court declared: “The decision of this case must be controlled by equitable considerations: for while the statutes of the state have made provisions for the disposition of the property of a school district when the same is abolished or discontinued, and when a school district is divided by the county superintendent, or when by his action a part of the territory of a school district is detached and put into another or new district, no express provision is made where a school district is divided by reason of an extension of city limits absorbing a part of it. . . .” (p. 561.) Following the decision the legislature provided for an “equitable apportionment” when a district is divided by an extension of city limits by enacting Chapter 128, Section 2, Laws of 1893, a forerunner of K. S. A. 72-5316a, et seq. (repealed, Laws of 1969, Chapter 312, Section 6.) The statutes last referred to (72-5316a, et seq.) were considered by this court in the recent case of Williams v. Board of Education, 198 Kan. 115, 422 P. 2d 874. The problem therein concerned adjustments necessitated by a change in school district territory, brought about by a city annexation.' Though no constitutional question was involved, we believe language found in the opinion is germane to the issue here. In Williams the legislative history of 72-5316a, et seq. was traced and then it was stated: “. . . While subsequent legislation has provided greater detail for making the adjustment in each individual case, the principle of equitable apportionment continues as a thread throughout the enactments. (See R. S. 1923, 72-5317 and 5318; G. S. 1949, 72-5317 and 5318; L. 1951, ch. 407; L. 1953, ch. 335; L. 1957, ch. 395.)” (p. 120.) Further in the opinion we find this statement: “. . . The legislature, in enacting the foregoing statutes, has recognized that differing factual situations may arise, and has provided a flexible means of equalizing the resultant economic imbalances.” (p. 121.) While constitutional questions were not raised, we believe the cases and statutes referred to adequately demonstrate the term “equitable considerations” or variations thereof are quite familiar to, and commonly used by, both the legislature and this court in dealing with adjustments between school districts. Reduced to simple terms the statute merely tells the court to use appropriate equitable considerations in determining what payment, if any, is to be made; in other words, a direction to the court to use its equitable powers. There is nothing new or unusual in such a legislative mandate, for example we find language of similar import directing resort to equitable considerations in determining alimony (K. S. A. 1968 Supp. 60-1610[c]); and in equity powers conferred in confirming a sheriffs sale (K. S. A. 60-2415[b]). It is a distinguishing feature of equity jurisdiction that it possesses full power to apply settled rules to unusual conditions and to mold its decree so as to do equity between the parties. (Stady v. Texas Company, 150 Kan. 420, 94 P. 2d 322, and Hultz v. Taylor, 163 Kan. 180, 181 P. 2d 515.) Courts deal constantly with the application of equity maxims and equitable considerations. The meaning of the terminology is well developed and has been familiar to courts from the beginning of equity jurisprudence. The terms “equitable” and “inequitable” have been judicially determined to signify just and unjust. (27 Am. Jur. 2d, Equity, § 1, p. 516.) In Black’s Law Dictionary (Fourth Edition) we find the term equitable defined as “just, fair, and right, in consideration of the facts and circumstances of the individual case.” (p.632.) A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law. (50 Am. Tur., Statutes, § 473, pp. 486, 490.) We believe a statutory mandate directing the determination of an equitable payment by the employment of equitable considerations deemed appropriate prescribes a guideline well within the constitutional requirements of certainty. At this point, we should pause to note that even though the . immediate predecessor of 72-6776, supra, K. S. A. 72-6751 prescribed, in subsection (†) (2) thereof, a guideline based primarily on factors of original costs, depreciation and bond payments made previous to the unification; it also included in subsection (f) (3) a provision that such other equitable considerations as deemed appropriate, by the negotiating boards or the court, might be considered. The omission of the guideline prescribed in subsection (f) (2) of 72-6751 in the enactment of 72-6776 clearly indicates the legislature was dissatisfied with the concept expressed in the former law and desired the more flexible method, based on equitable considerations, prescribed in 72-6776. The change was a matter of legislative choice. Courts do not pass on the wisdom of acts of the legislature. Legislative policy is neither approved nor condemned by courts; their sole function is to determine the validity of a challenged act when measured by applicable constitutional provisions. (Tecumseh School District v. Throckmorton, 195 Kan. 144, 403 P. 2d 102; State, ex rel., v. City of Pittsburg, supra.) The views expressed herein are in line with the decisions of other jurisdictions dealing with similar statutes. In State, ex rel, Bd of Edn., 172 O. S. 533, 179 N. E. 2d 347 (1961), the constitutionality of an Ohio statute, which directed the State Board of Education to make an equitable division of funds and indebtedness between the districts involved when territory was transferred from one district to another, was challenged on the ground it provided no guide or standard for the board to follow other than that the division must be equitable. In answering the challenge it was stated: “At the time of the transfer in the instant case, Section 3311.06, Revised Code, contained the requirements that ‘an equitable division of the funds and indebtedness between the districts involved shall be made.’ In other words, the division must be fair and just to all involved. The statute does not provide a rigid formula such as tax valuation alone. Rather, it establishes the broader and more feasible test that the division must be equitable under the particular circumstances of each situation . . . The statute is not unconstitutional.” (p. 535.) A Michigan statute enacted to serve the same purpose was challenged on the same grounds in Lansing Dist. v. State Bd. of Ed., 367 Mich. 591, 116 N.W. 2d 866 (1962). The challenge was rejected and referring to the statute involved the court stated: “. . . It provided the county board or joint boardls shall determine whether any personal property is to be transferred and, when any real property owned by a school district is transferred to another district, determine an equitable payment for the talcing of such property. . . . “The legislature certainly expected the board or joint boards, in determining ‘equitable payment’ for property taken, would exercise its discretion gained through its business experience, time in the community, and knowledge of property values, all gained as a result of experience in educational matters. Any abuse of the board’s discretion would be subject to judicial review.” (p. 598.) We next turn to the question whether the payment determined here was equitable. The purpose of the equitable payment provision of 72-6776, supra, is to adjust equities between a unified school district and detached territory of a school district divided by unification where a school building is acquired by the former and the bonded indebtedness is only partly paid. The import of the statute is that an equitable payment may be paid or received between the districts if the court determines equity compels a payment under the equitable considerations deemed appropriate under the existing circumstances of each particular case. The legislature, realizing the precise results of unification in each particular case could not be predicted, adopted a flexible approach and directed equities to be adjusted under applicable and appropriate equitable considerations. We shall consider the application of equitable considerations to the facts of the instant case. At the outset of our consideration of this point, we should note that the commissioner, in his report, carefully reviewed the procedural steps of the proceedings and then made twenty-four detailed findings. The commissioners findings reflect a careful and meticulous consideration of all material facts and a conscientious attempt to apply appropriate equitable considerations. Limitations of space prohibit a full recitation of the commissioner’s findings. We shall mention only those facts necessary to convey an understanding of the issues and disposition thereof. The facts discloses that in addition to that portion of RHS No. 7, attached by unification, No. 254 also included considerable other territory. Principal parts of this additional territory should be noted. Sun City Rural High School District No. 2 had an assessed valuation of $1,607,801, and no bonded indebtedness. It had a school building constructed prior to 1920 which was adequate for present attendance needs and would probably never be replaced. There was no division of the Sun City territory, all of which was attached to No. 254 by the unification. Isabel Common School District No. 43, which extended partially into Pratt County, had an assessed valuation of $2,957,271, and no bonded indebtedness. The Isabel district maintains school in a building constructed in 1920 and added to in 1950. The superintendent of No. 254 noted that Isabel’s shop and gym were adequate but the old building should be abandoned. However, he commented “but under current laws it is likely that an elementary school will exist there for many years.” There was no division of the Isabel territory, all of which was attached to No. 254 by unification. Sharon Common School District No. 28 had an assessed valuation of $1,607,801, and no bonded indebtedness. It had a school building constructed in 1960, with insurance proceeds and $200,000 in bonds, of which $146,477.26 remained outstanding. Calculated from the ratio of respective assessed valuations, 99.5 percent of the Sharon District became a part of No. 254 and the balance of .5 percent was attached to No. 255 by unification. At the time of trial Sharons facilities were adequate for the foreseeable future except for a shop building. The evidence disclosed that the construction of a $100,000 shop building was planned for 1968. We are informed on oral argument that this building is now under construction. Hardtner School District No. 62B and Hazelton School District No. 37 and District No. 6 were also disorganized by the unification. Hardtner had an assessed valuation of $3,168,142; 95.42 percent of which was attached to No. 255 and the balance of 4.58 percent was attached to No. 254. A bondéd indebtedness, stemming from two bond issues, totaled $118,000, at the time of unification, and remained as an obligation of the disorganized district. Hazelton Districts had an assessed valuation of $1,921,009; 96.25 percent of which was attached to No. 255 and the remainder of 3.75 percent was attached to No. 254. At the time of unification Hazelton No. 37 had a bonded indebtedness of $9,000.00 which remained as an obligation of the disorganized district. The superintendent of District No. 255 reported that the Kiowa High School, the principal high school in the district, was over fifty years old and both the State Department of Education and the North Central Accreditation Agency were insisting that a new high school be built for the district. As we have noted, the facts presented to the commissioner were either stipulated or agreed, the only dispute concerns materiality. On the effective date of unification, July 1, 1966, RHS No. 7 had an assessed valuation of $15,108,290, of which $2,285,264 was on property which became attached to plaintiff. RHS No. 7 owned a relatively new high school building, constructed in 1961 out of a total bond issue of $788,000, of which, bonds in the amount of $490,-000 were issued by RHS No. 7 and the balance of the bonds— $298,000.00, was issued by the Medicine Lodge Common School District No. 1. A balance of $370,000 remained as bonded indebtedness of RHS No. 7 on July 1, 1966, which, as we have previously noted, was further reduced by a payment on September 1, 1966, of principal and interest in the amount of $38,318.98. As a result, the net outstanding bonded indebtedness amounted to $346,000, which was considered with respect to the disorganization of RHS No. 7. The remaining bonds matured at the rate of $24,000 per year through 1969, then $25,000 per year until paid in full in 1980. Interest rates varied from 3.9 percent to 4.25 percent according to dates of maturity. The commissioner further found from the records of the county treasurer that by reason of back taxes collected and disbursed, and estimated future collections of back taxes, the net obligation by reason of the bonded indebtedness amounted to $341,666.74, which sum was used as a starting point by the commissioner in making his computations with respect to RHS No. 7. The commissioner used the agreed total valuation of RHS No. 7, prior to unification and the valuation of the portion attached to No. 255, as factors in arriving at 15.12 percent, which was multiplied by $341,666.74 resulting in the sum of $51,660.01. This sum was used as a beginning figure by the commissioner and was modified by other factors which he found to be equitable considerations in arriving at his final figure of $41,500; the sum determined by the commissioner to be the equitable payment that should be received by No. 255 from No. 254. In Findings Nos. 23 and 24 of his report, the commissioner made findings and recommendations which were fully approved and adopted by the trial court. The commissioner noted that the bonds bear interest which must be paid as well as the bonds, but he pointed out that the equitable payment would be made under 72-6776 (b), supra, by a levy in the next three years. If the tax money were placed on interest, in government securities, as recommended by the commissioner and ordered by the trial court, the interest received on the impounded funds would offset the interest on the bonds which matured annually through 1980. In addition to his findings with respect to RHS No. 7, the commissioner used the same method in computing adjustments with respect to the bonded indebtedness of Hardtner, Hazelton No. 37, and Sharon. In the case of Hardtner, whose building along with 95.15 percent of its territory was attached to No. 255, the commissioner found that $5,404.40 (4.58 percent of $118,000) should be credited to No. 254 to offset the remaining obligation of the taxpayers occupying the 4.58 percent of the territory attached to No. 254. Likewise, in the case of Hazelton No. 37, whose building along with 96.25 percent of its territory was attached to No. 255, the com missioner found that $337.50 (3.75 percent of $9,000) should be credited to No. 254 to offset the remaining obligation of the taxpayers occupying the 3.75 percent of the territory attached to No. 254. In the case of Sharon, whose building along with 99.5 percent of its territory was attached to No. 254, the commissioner found that $732.39 (.5 percent of $146,477.26) should be credited to No. 255 to offset the remaining obligation of the taxpayers occupying the .5 percent of the territory attached to No. 255. The commissioner then offset the $732.39, due No. 255, against the $5,741.90 ($5,404.40 plus $337.50), due No. 254, and arrived at a net adjustment of $5,009.51 in favor of No. 254. The commissioner then subtracted $5,009.51 from $51,660.01, which had been determined to be the equitable payment with respect to RHS No. 7. This arithmetic resulted in the sum of $46,650.50 which was further modified by subtracting $5,150.50 resulting in the $41,500 equitable payment recommended by the commissioner. The sum of $5,150.50, subtracted by the commissioner, appears to be a discount or adjustment he arrived at by reasoning that Isabel and Sharon both had their own school buildings, were maintaining schools, were not a part of RHS No. 7 and were not in anywise obligated to pay any of the bonded indebtedness of RHS No. 7 on July 1, 1966. On motion of the plaintiff Findings Nos. 21(e) and (f) and 22, pertaining to the lump sum adjustment, were stricken by the trial court and the $5,150.50 reinstated, raising the equitable payment to $46,650.50, the final judgment entered. It is this ruling of the trial court that draws the principal attack by defendant on the method employed in determining the equitable payment. Defendant asserts the trial court disregarded equities as to the territory of No. 254, in particular Sharon and Isabel which had not been a part of RHS No. 7 and was not obligated for any of its bonds. It is argued the fact that both Sharon and Isabel were maintaining schools and not receiving any benefits from the Medicine Lodge facilities must be considered in arriving at any equitable payment. With respect to Sharon, in particular, since it has its own indebtedness to pay, defendant strenuously argues that the burden of contributing to an equitable payment for the benefit of the detached portion of RHS No. 7 works an extreme hardship. Plaintiff presents a different picture. In objecting to the commissioner’s findings concerning the lump sum discount, No. 255 stated: ". . . Regardless of where students attend high school, regardless of amounts of bonds outstanding in the old Isabel and Sharon Districts, were it not for the fact that Rural High No. 7 constructed a new high school building at Medicine Lodge in 1960, the first thing that U. S. D. # 254 would have to have done after July 1, 1966, would have been to build a new high school for Medicine Lodge, and Isabel, Sharon and the rest of U. S. D. # 254 would be paying for that high school building.” We have already noted that Sharon is receiving a new shop building which will be constructed by the entire No. 254 district. With respect to Isabel, it may be inferred from the report of the superintendent of No. 254 that Isabel high school students will be transferred to Medicine Lodge in the near future. It should be noted with respect to No. 255 that Hardtner and Hazelton No. 37 both have prior bond obligations but the evidence indicates they will be immediately called upon to share the expense of a new district high school building in Kiowa. From our examination of the record we believe all of the material equitable considerations were presented and carefully weighed by the commissioner and the trial court. We cannot say it is inequitable to require a payment from No. 254 for the benefit of those RHS No. 7 taxpayers now in No. 255, who have suffered the loss of school facilities they have helped pay for and will continue to help pay for and now face the additional burden of providing new school facilities in their new district. Neither can we say the sum of the payment arrived at or the method employed is inequitable or unfair. We think the same reasoning applies as well to the Hardtner, Hazelton No. 37 and Sharon Districts. However, our consideration of the record has led us to the conclusion that the judgment of the trial court with respect to the disbursement of the equitable payment must be modified. In its judgment the trial court directed that the sum of $46,640.50 should be raised by a tax levy spread against all of No. 254, the levy to be sufficient to raise one-third of said sum in each year for a period of three years. The trial court further ordered that when received by the county treasurer of Barber County the moneys should be placed in a special fund and invested in interest bearing obligations of the United States or its agencies, and that the taxpayers formerly in the territory comprising disorganized RHS No. 7, not now included in No. 254, should be given credit, as and from the year of first receipt of such special fund, against any tax levied against their property for the payment of bonds obligating the property formerly comprising disorganized RHS No. 7, to the extent that such funds will offset such tax levies. This portion of the judgment of the trial court was made pursuant to the provisions of K. S. A. 1968 Supp. 72-67,109 which provides in substance that any, court order made pursuant to 72-6776, supra, may direct that any payment made from one unified district to another shall be applied to a particular purpose or to the benefit of a particular area. The statute further provides: ". . . It is recognized by this section that in certain cases payments should be made to benefit taxpayers in localized areas of unified districts, . . .” In entering its judgment, directing the disbursement of equitable payment as aforesaid, the trial judge recognized that the taxpayers of RHS No. 7, attached to No. 254, should receive benefits from the equitable payment but even though the status of detached taxpayers in disorganized Sharon, Hardtner and Hazelton No. 37 was recognized and equitable sums computed, no disbursements for their benefit was directed. Although the commissioner computed payments for the detached portions of the districts referred to and included the sums in the total equitable payment, he did not allocate the respective sums to the detached territories affected. He concluded: “In my opinion this would be more burdensome than the benefits accruing to the individual taxpayers involved.” The trial court apparently went along with the commissioners reasoning in this regard. We cannot agree. We believe equity compels the application of 72-67,109 for the benefit of detached taxpayers of Sharon, Hardtner and Hazelton No. 37 in the same manner as those occupying the detached territory of RHS No. 7. Since, in any event, a separate bond account must be maintained with respect to the unpaid bonds of each of the three districts referred to, we cannot see any unreasonable bookkeeping burden in securing the benefits to the respective taxpayers entitled thereto. While the sums involved are not large, we are not informed as to the number of taxpayers involved, if only a few, then the benefits to an individual might be substantial. We hold, therefore, the district court’s judgment should be modified so as to establish separate funds to be invested and disbursed for the benefit of detached taxpayers of Hardtner, Hazelton No. 37 and Sharon in like manner and method as that directed with respect to the detached taxpayers of RHS No. 7. Finally, we turn to the cross-appeal. Plaintiff objected to the method used by the commissioner in relying primarily on unpaid bonded indebtedness in arriving at an equitable payment, and argued that it should be based upon the value of property taken over by No. 254. Plaintiff’s proposal was rejected by the commissioner and by the trial court. Plaintiff reasserts it now on cross-appeal. Plaintiff suggests the property valuation method be applied by totaling all of the property of RHS No. 7, turned over to No. 254, which according to agreed values amounted to $609,445. Plaintiff multiplies by 15.12 percent (the assessed values reduced to percentage) and obtains a figure of $92,148.08; allowances are then made for adjustments for Hardtner and Hazelton No. 37 totaling $12,154.41, subtracted from $92,148.08 leaving $79,993.67. To this plaintiff adds an adjustment for Sharon in the amount of $1,228.11, totaling $81,221.78, which plaintiff claims should be the equitable payment rather than the $46,650.50 arrived at by the trial court; via the bonded indebtedness method. We believe what has already been said concerning the equitable considerations disposes of plaintiff’s cross-appeal. However, we shall briefly discuss some of the matters involved. It must be conceded that the use of a valuation method is not prohibited by the statute, since the existence of a bonded indebtedness is specified only as a qualification for the application of the statute. On the other hand, since bonded indebtedness is specified as a qualification then surely it may be used as a basis for computation of equitable payment if the application of such method appears to be equitable and there is no valid reason pointed out in this case, why the use of the bonded indebtedness method does not reach equitable results. Moreover, the commissioner stated his reasons for not using the property valuation method in his Finding No. 18 which reads as follows: “Your commissioner does not believe that the value of the property received by USD # 254 from disorganized Rural High School District No. 7 as of July 1, 1966 (whatever such value might be) should be considered in arriving at what should be the equitable payment in this action for the reason that 37.817% of the cost of constructing the Medicine Lodge High School building was from funds furnished by the Medicine Lodge Common School District No. 1, and further, although not shown by the evidence, some of the personal property was undoubtedly contributed by the Medicine Lodge Common School District No. 1.” The trial court adopted the reasoning of the commissioner and we find no reason to disturb its ruling in this regard. The judgment of the trial court is affirmed as modified with directions to enter judgment effecting the modifications directed herein.

The opinion of the court was delivered by Price, C. J.: This is an action by an employee of a licensed motor carrier to recover for personal injuries sustained while in the course of his employment as the result of the alleged negligent operation of a truck by a fellow employee who at the time also was acting within the scope of his employment. Named as defendants are the fellow employee, the employer, and the employer’s insurer under a public liability insurance policy. The question is whether defendant insurance company is obligated to defend the action and is obligated to pay any judgment that might be rendered in the case. The trial court held that both obligations exist. The insurance company has appealed. Because of the posture of the case and the nature of the question involved, it is necessary to summarize the pleadings in some detail. The petition of plaintiff, Loye O. Brown, was filed on May 2, 1967. It alleged— Plaintiff was an employee of defendant John R. Davis, d/b/a Bob Davis Trucking Co. (hereafter referred to as Davis) which hauled cattle into and out of Kansas. Pursuant to K. S. A. 66-1314 Davis was required to be covered by a liability insurance policy, and, on the date in question, was covered by a policy written by defendant National Indemnity Company (hereafter referred to as National) whereby National agreed to pay for injuries to persons and loss of or damage to property resulting from the negligence of Davis, his agents, servants and employees in operating vehicles under the name of Davis and in the furtherance of his business. On or about February 4, 1966, in a cattle auction yard at Liberal, plaintiff, an employee of Davis, was injured when defendant J. W. Green (hereafter referred to as Green), who at the time also was an employee of Davis and acting within the scope of his employment, negligently backed a cattle truck owned by Davis into plaintiff. That as the direct result of the negligence of Green, while in the employment of Davis, plaintiff was injured and damaged in the amount of $36,764.34 and judgment in that amount was sought against defendants Green, Davis and National. On June 8, 1967, defendant National filed its answer and cross-claim. The answer admitted the issuance to Davis of the policy in question (attached as an exhibit), and that on February 4, 1966, plaintiff, while an employee of Davis, sustained personal injuries; alleged contributory negligence; denied that plaintiff’s injuries were caused by the negligence of Green or Davis, and alleged there was no liability on its part to plaintiff for injuries sustained by him while employed by Davis. In its cross-claim National alleged that defendants Green and Davis contend that by virtue of the policy in question it is required to defend plaintiff Brown’s action against them and to pay any judgment that may be rendered against them. National further alleged that plaintiff was correct in alleging that at the time of the injury he, plaintiff, was an employee of Davis. It was further alleged that the policy did not insure Green or Davis for the reason coverage is excluded where the injured party (plaintiff) was at the time of injury an employee of the named insured, Davis, and that it, National, was entitled to a declaratory judgment that it was under no duty or obligation to furnish a defense for Green or Davis to plaintiff’s law suit and was under no obligation to pay any judgment rendered against them arising from the case. (The provisions of the policy attached as an exhibit to National’s answer and cross-claim will be discussed later.) On June 23, 1967, defendant Davis filed his answer, an answer to the cross-claim of National, and a cross-claim against National. The answer contained the usual denials, admitted that he, Davis operated a trucking firm which transported cattle in and out of the state, admitted the issuance and existence of the insurance policy in question, and alleged contributory negligence on the part of the plaintiff. The answer of Davis to the cross-claim of National admitted that he contends National is required to furnish a defense to plaintiff’s action and to pay any judgment which might be rendered against him, Davis, and prayed that National be required to furnish such defense and to pay any such judgment. The cross-claim of Davis against National alleged that by the issuance of the policy in question National agreed to pay for injuries to persons and loss of or damage to property as the result of the negligence of Davis, his agents and employees, and to defend any suit against him for such injury or damage even if such suit is groundless, false or fraudulent. It further alleged that following the filing of plaintiff’s action he, Davis, requested that National as sume its obligation to defend the action, that National failed and refused to do so with the result that he was forced to hire counsel of his own. The prayer was for judgment declaring the policy to be in full force and effect; that the damages claimed by plaintiff are within the terms and provisions of the policy; that National is obligated to defend the action and to pay any judgment rendered, and for judgment for attorney fees and expenses. On June 23, 1967, defendant Green filed his answer, an answer to the cross-claim of National, and a cross-claim against National. For our purposes it may be said these three pleadings were substantially identical to the respective pleadings filed by Davis. There being no factual issue between National and defendants Green and Davis, National moved for a summary judgment upon its cross-claim for a declaratory judgment—mentioned above. The matter came on for hearing on January 3, 1969, and the court ruled— “Upon examination of the files, briefs of counsel, and statements of counsel, the Court finds that the National Indemnity Company is not entitled to such Declaratory Judgment, and that under the terms and provisions of the policy of insurance, it does owe a duty to furnish a defense for the said J. W. Green and John R. Davis d/b/a Bob Davis Trucking Co., to the Plaintiff’s lawsuit, and has an obligation to pay any judgments rendered against them arising from said lawsuit.” National has appealed from both portions of that ruling. As material to this case, K. S. A. 66-1,128 provides that no certificate, permit, or license shall be issued by the state corporation commission to any public motor carrier of property, contract motor carrier of property or passengers, or private motor carrier of property, until such applicant shall have filed with and the same has been approved by the commission, a liability insurance policy in such reasonable sum as the commission may deem necessary to adequately protect the interests of the public, which liability insurance shall bind the obligors thereunder to pay for injuries to persons and loss of or damage to property resulting from the negligent operation of such carrier. The policy in question was dated October 10, 1965. Attached to it was a “Public Liability and Property Damage Endorsement” of the state corporation commission (Docket No. 15600) which, in material part, reads— “It is understood and agreed that the policy to which this endorsement is attached is written in pursuance of and such policy shall fulfill the insurance requirements of section 66-1,128, General Statutes of Kansas 1935, or as may be hereafter amended, and the rules and regulations of the State Corporation Commission adopted thereunder with respect to liability for injuries to persons (except employees of the assured injured in the course of their employment) and for damage to property (except cargo). The obligations and promises of this endorsement, however, shall be effective only while the equipment covered by this policy is being operated within the State of Kansas.” The named insured was “Bob Davis Trucking Co.—John R. Davis d/b/a”. With respect to such insurance as is afforded by the policy for bodily injury liability, the policy provided that the company shall defend any suit against the insured alleging injury on account of and arising out of the use of the vehicle in question, even if the suit is groundless, false or fraudulent. It further provided— “III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply: (2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.” Other provisions of the policy state that no coverage is provided under facts and circumstances giving rise to application of any workmen’s compensation law benefits. In support of the trial court’s ruling, plaintiff Brown contends the words “for injuries to persons” contained in K. S. A. 66-1,128 mean all persons—whether or not employees of the insured. He further contends the exception contained in the public liability endorsement of the state corporation commission, above, goes beyond the authority given by the statute and, as it does not appear in the handbook of administrative regulations compiled by the office of the revisor of statutes—is of no force and effect as a rule or regulation of the commission. In their brief in support of the trial court’s ruling, defendants Green and Davis contend that National’s motion for a declaratory (summary) judgment and appeal from the adverse ruling were and are premature because there have been no discovery proceedings whereby it has been determined that National has no duty to defend the action. It further is argued that the provisions of the policy are inconsistent, uncertain and ambiguous—and therefore should be construed strictly against National, and that it should not be let out of the case at this stage. There are a number of reasons which compel our conclusion that the ruling of the trial court cannot be upheld. The language of the statute (K. S. A. 66-1,128) summarized above, must be read in its entirety. When so read, it is clear that the legislative intent was to protect the interests of the public for injuries due to the negligent operation of licensed motor carriers, rather than employees of the insured injured in the course of their employment. In Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945, in discussing the landmark case of Dunn v. Jones, 143 Kan. 218, 223, 53 P. 2d 918, it was said— “We then pointed out that the purpose of the insurance was adequate protection to members of the public from negligent conduct of the motor vehicle operator. No doubt the policy itself consisted of a page or two, some of it in fine print. The legislature, however, described it in these words and we described it in half a dozen lines. The essentials are there—liability, public, protection.” (p. 271.) The public liability endorsement on the policy here is in accord with the meaning and purpose of the statute—and it specifically excludes employees of the insured injured in the course of their employment. Further, such endorsement is not a “rule or regulation” in the sense urged by plaintiff. As to the contention National was premature in seeking a declaratory judgment that there was no obligation to defend and no obligation to pay any judgment that might be rendered, the rule is that the question whether a liability insurance carrier owes a duty to defend is to be determined by the allegations of a plaintiff’s petition and the terms of the policy. In Leonard v. Maryland Casualty Co., 158 Kan. 263, 146 P. 2d 378, it was held: “The duty of an insurer under an automobile liability policy to defend an action for damages against its insured is not measured by proof which may be adduced at the trial or by outcome of the litigation, but by the allegations of the petition in the action and by the terms and provisions of the insurance contract.” (Syl. 2.) and said: “If the rule were otherwise an insurer would be obligated to defend every type and character of action instituted against every insured although the basis or ground of such action was wholly outside the coverage of the policy. Such a conclusion would render the exclusion clause a complete nullity and would therefore result in making a new contract for the parties which, of course, we are not at liberty to do.” (p. 267) As to the contention that National is under a duty to defend “even if such suit is groundless, false or fraudulent”—by the very terms of the “Insuring Agreements II. (a)”—such duty to defend exists only “With respect to such insurance as is afforded by this policy for bodily injury liability. . . .” (Emphasis supplied.) Here, the plaintiff, an employee of Davis, injured in the course of his employment as the result of the alleged negligence of Green, also an employee of Davis—seeks to recover from Green, Davis and National. Green and Davis contend National is obligated to defend the action and to pay any judgment that may be rendered. We think it is clear that under the plain terms of the policy the injuries to plaintiff are not covered and that National is not obligated to pay any judgment that may be rendered. In the somewhat analogous case of Hanson v. Zollars, 189 Kan. 699, 371 P. 2d 357, it was held: “The liability of an insurer to the employee of the holder of a private carrier permit is excluded by the provisions of the policy which excepts injuries to employees in the course of the employment.” (Syl. 3) It naturally follows that where there is no liability—there is no duty to defend—as was said in El Dorado Refining Co. v. United States Fidelity & G. Co., 157 Kan. 198, 139 P. 2d 369: “But obviously the insurer was not bound to defend the employer in actions brought wholly outside any obligations assumed in the policy. In other words, the insurer would not be bound to defend in actions wherein he would have no liability in case the plaintiff secured judgment against the employer.” (p. 202) In its brief National also relies on certain provisions of the policy excluding coverage in instances where the insured may be liable under any workmen’s compensation law, citing K. S. A. 44-505 and Coble v. Williams, 177 Kan. 743, 282 P. 2d 425. Having disposed of this case on other grounds—we express no opinion on the point. The judgment is reversed.

The opinion of the court was delivered by Hatcher, C.: This is an appeal from a conviction of grand larceny. The appellant contends that the court erred in admitting evidence concerning alleged offenses other than the one charged in the information. We will present the evidence pertaining to this issue without attempting to set out all of the evidence inferring guilt. An accomplice of the appellant testified for the state. According to his testimony the appellant, the appellant’s wife and the accomplice entered into a scheme for perpetrating a series of larcenies across the state of Kansas. The mode of operation required a team of two or three working closely together. The mode of operation was known in the trade as “creeping.” “Creeping” consists of the team members going into a store with some members of the team “pulling the store owner back and then one of the guys [the creeper] you are working with goes in where the money is at and gets the money.” The appellant acted as the “creeper” and appellant’s wife and Orand were the members of the team charged with distracting the clerks, or “pulling the store owners back” so the appellant could rob the till or cash box. Such a plan was used to rob the Kingman Gambles Store, King-man, Kansas, of $200. This is the crime for which the appellant was convicted. The accomplice who testified for the state admitted the team entered nearly every store in Kingman “that looked like there might be anything there.” Pursuant to their preconceived plan, the appellant played the part of the “creeper” while the accomplice and appellant’s wife distracted the clerks. As the “creeper”, the appellant stole money from the Gambles store; stole rings from a jewelry store across the street from the Gambles Store; stole guns from a sporting goods store in Pratt, and stole money from a supermarket in Greensburg. All the thefts were on the same day and each theft was carried out in the same manner. It is the evidence of the above mentioned thefts that the appellant complains. There is no merit in the contention. The case presents a perfect example of the admissibility of evidence of other crimes to prove motive, intent, preparation, plan, etc., as provided by K. S. A. 60-455. The appellant also objects to the trial court’s instruction concerning evidence of other alleged offenses. We will not use space to present the instruction here. It will suffice to say that the instruction is substantially the same as the instruction which we approved in State v. Wright, 194 Kan. 271, 276, 398 P. 2d 339. Last, the appellant contends that the trial court erred in refusing to declare a mistrial when the witness Orand, the accomplice, testified that he had heard the appellant had threatened to kill him. During the direct examination of state’s witness Orand he was asked: “Q. Now, did you go any place from Denver outside of the State of Kansas?” Orand answered: “A. Yeah, we left Denver and Bobby and I split up in Oklahoma and I went to Indiana and then I heard Bobby (referring to Appellant) was going to kill me—” The appellant asked for a mistrial. The trial court admonished the jury to disregard the voluntary statement and denied the motion for a mistrial. The witness later testified without objection: “Q. . . . Now, prior to the 14th did you meet Bobby Joe in Wichita or Tulsa? “A. I was going to tell you anyway. That is the reason I come to Bobby. I didn’t want to wait for him to find me. It’s better to look somebody in the eye than it is looking behind your back. So I come to find Bobby and I came to Oklahoma, Tulsa, and I just missed him. He was on an airplane. So I called—I don’t remember what airplane it was, but I called and they got both of them when they landed. He came back and met me in a beer joint by the bus station and he said the only reason he said that was because he wanted us to get together. “Q. Now, did he make any requests of you when he said he wanted to get together? “A. Just start working; make some money. “Q. By ‘work,’ what do you refer to, Mr. Orand? “A. Well, till tapping and creeping.” We must conclude that in view of the admonition of the trial court, and the further testimony, there was no prejudicial error and the rights of the appellant were in no way prejudiced. A careful examination of the record discloses no trial errors that would justify the granting of a new trial. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Schroeder, J.: This action was instituted as a class action by the plaintiff seeking a mandatory injunction against the defendant to restore and maintain four “Senior Citizen Communities” as they existed when the plaintiff was induced to occupy her apartment five years prior to instituting the action, or in the alternative for a permanent injunction enjoining the defendant from further changing the character of such “Senior Citizen Communities.” The trial court sustained a motion to dismiss the action on the ground that it failed to state a claim upon which relief could be granted, and the plaintiff has duly perfected an appeal. The only question presented is whether the admitted facts are sufficient to state a claim upon which relief can be granted. Procedurally, the matter was presented in the trial court upon a motion to dismiss the action. The ground stated was that it failed to state a claim upon which relief could be granted. (K. S. A. 1968 Supp. 60-212 [b] [6].) After the plaintiff filed her original petition the defendant moved to dismiss, or in the alternative moved for a summary judgment, attaching four exhibits and an affidavit. The trial court after hearing the matter overruled the motion and granted the plaintiff ten days to file an amended petition. Pursuant thereto an amended petition was filed and the plaintiff attached additional exhibits. Upon the defendants motion to dismiss the amended petition the trial court considered the amended petition, the exhibits attached thereto, and the exhibits and affidavits attached to the defendant’s original motion, whereupon it sustained the defendant’s motion. Actually, the matter was submitted by the parties, and treated by the trial court, as a motion for summary judgment. (K.S.A. 60-256.) The facts are not in dispute. Edith Prophet (plaintiff-appellant) entered into a written rental agreement with Builders, Inc. (defendant-appellee) on the 30th day of July, 1963, for a month to month rental. The agreed rental was $60 per month. The written lease contained language common to standard rental agreements and made no mention of the “Senior Citizen” nature of the dwelling. The contract between the parties expressly stated: “There are no exceptions, and no verbal statements made by agents and employees shall be binding upon the company or alter any provisions of the lease agreement.” Prior to the rental agreement Builders, Inc. advertised rather extensively a “Senior Citizen Community” concept which it said was limited to persons sixty years of age or older. Builders, Inc. is the rental agent for approximately 2,000 apartments in Wichita, Kansas. In 1960 and 1961 a portion of these apartments was made available and equipped as “Senior Citizen” housing. The first of these areas was designated as Stafford Village. Thereafter three additional areas in other parts of the city were made available and equipped for “Senior Citizens” as the need arose. These were designated as Parklane, Southeast Village and Linwood Village. Each village was composed of ground floor, garden-type brick four-plex apartments featuring safety rails, new decoration and complete maintenance, a club room, laundry facilities, card room and T-V room. A large meeting room was made available as well as a large outdoor recreational area. There were no fees, grants, gifts or other endowments required to gain admission to any of these apartments. The tenants rent individually from Builders, Inc. on a monthly basis. These areas are not controlled by management insofar as activities are concerned, although certain areas were provided for common activities of the residents as a gratuity, subject to availability. These areas are self-governing, and no attempt is made by management to control common activities carried on therein. From a beginning of 136 apartment units the “Senior Citizens” concept grew to a total of 459 apartments in the four areas housing “Senior Citizens;” that is, citizens over sixty years of age. Since the creation of the local housing authority Builders, Inc. has and is continuing to cooperate with the local housing authority to provide “Senior Citizen” housing, and had, when the case was submitted, 246 apartments leased to the local housing authority, of which 191 were rented to “Senior Citizens” through the local housing authority. Builders, Inc. in its brochures advertised low cost housing and originally leased to the plaintiff for $60 per month. Thereafter the plaintiff’s rental was increased on March 1, 1966, to $62 per month; on February 10, 1967, to $72 per month, and on November 1, 1967, to $82 per month. In each case more than one month’s notice was given to the tenant of such rental change. The plaintiff in her amended petition alleges that the representations made by the defendant in the form of a brochure and newspaper advertisement were made for the express purpose of inducing the plaintiff and others who were similarly situated to leave their existing residences and move to a “Senior Citizen Community” owned and operated by the defendant in the city of Wichita. She alleges the defendant represented that the “Senior Citizen Com munities” were limited to persons sixty years of age or older; that she relied upon the representations and moved from her residence to a “Senior Citizen Community” owned and operated by the defendant; and that the defendant has now changed the entire character of the housing area by permitting persons of all ages to occupy the premises, and by numerous rent increases, although she remains on a limited, fixed income. She further alleges that the housing area no longer exists as it was represented to her, and that she has been damaged thereby (although she does not state the specific manner in which she has been damaged in her amended petition). The plaintiff alleges: “That the defendant was under an obligation to continue the ‘Senior Citizen Communities’ as represented by the defendant in its brochures and newspaper advertisements and to do otherwise is to cause an irreparable injury to the plaintiff and others similarly situated, in that the plaintiff and others similarly situated have so changed their positions because of their reasonable reliance upon the defendant’s representations. . . .” In her prayer the plaintiff seeks: “. . . a permanent injunction enjoining defendant to restore and maintain Stafford Village Senior Citizens Homes, Parldane Senior Citizens Homes, Southeast Village Senior Citizens Homes and Linwood Village Senior Citizens Homes as ‘Senior Citizen Communities’ as they existed when she was induced to occupy same or in the alternative, for a permanent injunction enjoining the defendant from further changing the character of the aforementioned ‘Senior Citizen Communities’ and for such other and further relief as to the court seems just and equitable.” The appellee relies upon the written rental agreement which it contends firmly establishes the relationship of landlord and tenant between it and the plaintiff. The appellee argues that even assuming the advertisements or brochures were an inducement to the appellant to rent one of the appellee’s apartments, such inducements do not change the relationship between the parties, nor did such advertising change the effect of the written leasing agreement. The written lease definitely provides that the tenant is renting on a month to month rental basis. Either party is entitled to terminate the lease by giving thirty days advance written notice. The appellant contends that even a prior oral agreement, not embodying the same terms as a later written agreement, is admissible in evidence, citing In re Estate of Boller, 173 Kan. 30, 244 P. 2d 678; and In re Estate of Hupp, 177 Kan. 202, 277 P. 2d 618. This argument is erroneous because it assumes there was a prior oral or written agreement. The inducements made by the appellee in the form of brochures and advertisements do not rise to the dignity of an agreement, and the amended petition does not allege a prior written or oral agreement. The general rule is that a subsequent written agreement embodies all prior understandings and agreements, and where the written contract is complete and free from ambiguity and neither fraud nor mistake is pleaded, as here, parol testimony of a contemporaneous oral agreement relating to the same matter is incompetent. (In re Estate of Boller, supra, and authorities cited therein.) The foregoing is known as the parol evidence rule which is a rule of substantive contract law, not a rule of evidence. On this subject the following has been said in 3 Corbin on Contracts, § 573: “When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing. This is in substance what is called the ‘parol evidence rule,’ a rule that scarcely deserves to be called a rule of evidence of any kind, and a rule that is as truly applicable to written evidence as to parol evidence. The use of such a name for this rule has had unfortunate consequences, principally by distracting the attention from the real issues that are involved. These issues may be any one or more of the following: (1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate ‘integration’ of that contract?” (pp. 357-359.) Here the parties made a written leasing contract; the plaintiff does not charge that the contract is void or voidable because of illegality, fraud, mistake, or any other reason; and the parties specifically stated in the written leasing contract that it was the complete and accurate integration of that contract. The contract specifically stated there were no exceptions, and that no verbal statements of the appellee’s agents and employees would bind the appellee or alter any provisions of the lease agreement. Numerous Kansas cases support the foregoing rule. (Lawrence v. Sloan, 201 Kan. 270, 440 P. 2d 626; Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 457 P. 2d 691; and authorities cited in these opinions.) The amended petition is completely silent as to what kind or type of injury or damage, threatened or actual, past, present or future, the appellant has sustained. Under the terms of the rental agreement, rental increases are authorized and warranted provided sufficient notice has been given. The record discloses more than thirty days notice was given the appellant each time the rent was increased. By affidavit the appellee stated such rental increases were absolutely necessary in order to maintain the property in view of increased taxes and operational costs. The affidavit of the appellees property manager discloses the appellee has not changed the character of the housing areas, but has merely attempted to keep the rental units occupied as they become vacant. The appellant’s complaint simply boils down to the fact that apartment units which have become vacant are being rented to persons under sixty years of age. The appellant wants the appellee to be enjoined in perpetuity from renting any of the apartment units in the “Senior Citizen” areas to persons under sixty years of age. This leads us to a discussion of mandatory injunctions. A mandatory injunction is an extraordinary remedial process resorted to usually for the purpose of effectuating full and complete justice, and commands the performance of some positive act. While the granting of mandatory injunctions is governed by the same rules as the granting of preventive injunctions, courts are more reluctant to grant a mandatory injunction than a prohibitory one, and generally an injunction will not lie except in prohibitory form. A party seeking a mandatory injunction must clearly be entitled to such decree before it will be rendered. (Pyramid Life Ins. Co. v Gleason Hospital, 188 Kan. 95, 360 P. 2d 858, and cases cited therein; and 43 C. J. S., Injunctions, § 5, p. 409.) The court in speaking of a mandatory injunction in Cave v. Henley, 125 Kan. 214, 264 Pac. 25, said: ". . . where the interference of a court of equity would cause the encroaching defendant ruinous and needless loss and expense, and where equity’s refusal to interfere would cause little or no practical inconvenience to the party sustaining the encroachment, and where all damage to the latter could be adequately compensated by a plain remedy at law, the rule is that the aggrieved party will be remanded to his action at law, and relief by mandatory injunction denied. . . .” (p. 217.) The mere suggestion in the instant case that a permanent injunction, mandatory or otherwise, could be used to regulate the economic supply and demand factor and impose a rent control is absolutely repulsive. It is foreign to our free enterprise system. Injunctions should never be used to accomplish such ends. The market place has traditionally been the regulator of price, and interference by the judiciary is unwarranted. Assuming the appellant had stated sufficient facts to overcome the contract feature of the case, which she has not done it is difficult to conceive that the presence of occupants in the “Señor Citizen Communities” under the age of sixty years would afford a basis for injunctive relief. The appellant’s request that present tenants under the age of sixty years in the “Senior Citizen Communities” be evicted and rent controls be impose is wholly untenable on the basis of the record here presented. The judgment of the lower court dismissing the appellant’s amended petition for failure to state a claim upon which relief can be granted is affirmed.

The opinión of the court was delivered by Hatcher, C.: This appeal stems from a controversy over the deletion of an item of property from an insurance policy. The facts are not in dispute. Robert J. Bemica and Dana K. Anderson and their wives owned properties located at 1122 Van Burén and at 216 Huntoon, both in Topeka, Kansas. The defendant, American Employers’ Insurance Company, issued its insurance policy insuring the house at 1122 Van Burén in the sum of $4,000.00 and the house at 216 Huntoon in the sum of $8,000.00. It is agreed that the policy provided insurance protection against loss by tornadoes. On or about February 4, 1966, both properties were conveyed to plaintiff, Shunga Plaza, Inc. The insurance policy was assigned to this corporation with defendant’s consent. The policy premium had been paid in full. The policy period was to begin November 29,1965, and expire November 29,1966. Shunga Plaza, Inc. consisted of three stockholders who were directors, namely: Dana K. Anderson, Robert J. Bernica and J. W. Hannah. Hannah was president and Mr. Bernica was secretary-treasurer. The assets of the Shunga Plaza corporation consisted of the above-described properties and an unimproved lot. Robert E. Gucker was the insurance agent who handled the insurance in question. He had sold the original policy and handled the later endorsement for defendant. The American Savings Association of Topeka, one of the plaintiffs, was named in the mortgage clause of the policy as the holder of a mortgage on the houses. The policy had the usual loss-payable clause to protect the mortgagee. A representative of defendant inspected the insured premises, and because of the condition of the house at 1122 Van Burén, decided it should cease coverage of that house. Accordingly, Gucker computed the amount of refund due Shunga Plaza at $20.00. He prepared, and on or about February 23, 1966, mailed to Mr. Bernica an endorsement to the original policy. The endorsement reduced the coverage from a total of $12,000.00 to a new coverage of $8,000.00 and deleted item # 1, the $4,000.00 coverage on the house at 1122 Van Burén, from the policy. Copies of the executed endorsement were then mailed by Bernica to Gucker, and were received in the mail by the latter. Gucker mailed an executed copy of the endorsement to the plaintiff, American Savings Association, which association received a copy bearing the signature of “Shunga Plaza, Inc., by Robert J. Bernica,” and placed the same in its file with its security papers. The American Savings Association received a copy of the endorsement between February 23, and March 8, 1966, the exact date being unknown. On March 8, 1966, Gucker executed his company check in the sum o£ $20.00 payable to Robert J. Bernica. This check was mailed to Bernica in the usual and ordinary course of business from Gucker’s office by United States mail. The check has not been presented for payment and has not cleared the bank. This fact did not come to the attention of Gucker until after June 8, 1966. The check was not received by Bernica. On June 8, 1966, the house at 1122 Van Burén, Topeka, Kansas, was totally destroyed by a tornado. On June 8, 1966, the American Savings Association, plaintiff, held a mortgage on both the Van Burén and the Huntoon properties. Both properties were included in the same mortgage and the unpaid principal sum on that date was $11,501.08. This mortgage at the date of trial remained unpaid. Shunga Plaza, Inc. and American Savings Association of Topeka brought an action to recover the $4,000.00 for which the property at 1122 Van Burén was originally insured. They contended that the property had never been deleted from the policy. The trial court concluded: “The alteration of the original rights and obligations of the parties to this agreement was contained in an endorsement to the original policy. This endorsement was clear and unequivocal. This is simply a new agreement as to a portion of the coverage afforded by the policy. When this endorsement was ‘signed and accepted’ by Shunga Plaza, through its authorized officer, Mr. Bernica, it became a contract. This was a bi-lateral contract between the parties as to the new relationship created. “What we have here is a bi-lateral agreement created by the endorsement— this is simply a new contract. Coverage is deleted on the Van Burén property and defendant company owes Shunga Plaza the $20.00. Payment of the $20.00 is not a condition precedent to the effectiveness of the endorsement.” The plaintiffs have appealed. Before considering appellants’ contentions it would perhaps be helpful if we review briefly the exact transaction which we have before us for consideration. The policy provided a method for cancellation. The provisions of the policy for cancellation were not followed—perhaps for the reason this did not purport to be a cancellation but was the deletion of a single item. We must, therefore, find a separate and complete agreement. In 45 C. J. S., Insurance, § 444, p. 71, we find the following statement: “. . . A method of cancellation provided for in the insurance policy is not necessarily exclusive so as to preclude an effective cancellation by mutual agreement without compliance with the method so provided, and a requirement of notice as a condition precedent to cancellation does not apply to a termination by mutual consent.” (See, also, Riddle v. Rankin, 146 Kan. 316, 69 P. 2d 722.) The appellee desired to delete item # 1, the insured property at 1122 Van Burén, because of its condition. An endorsement, standard in form, was mailed by Robert Gucker on behalf of the appellee to Robert J. Bernica, secretary of the appellant, Shunga Plaza, Inc., to be attached to the policy of insurance. The endorsement is too cumbersome to be presented in full. It was headed: “ENDORSEMENT (To be attached to policy)” It stated: “Attached to and forming part of Policy No. [ A XX-XXXXX-XX ] “Effective Date of Endorsement 2-23-66” The endorsement gave the amount of the return premium— $20.00. The following was typed at the bottom of the printed form: “In consideration of return premium of $20.00. It is understood and agreed that item $ 1 is deleted from this policy. Signed and accepted X_” Written in the blank space following the X was: “Shunga Plaza, Inc. By: Robert J. Bernica” The endorsement with copies were mailed to Robert J. Bernica with a letter of transmittal, which read: “Please sign and return all copies where the X is indicated. Please be sure and sign Shunga Plaza, Inc., by you. Please find enclosed a stamped, self addressed envelope and return promptly. “A check for the return premium will be sent to you when we receive confirmation from company.” The appellants first contend that the trial court erred in its conclusion that the endorsement created an enforceable bi-lateral contract for the reason that there was failure of consideration. We see no merit in the contention. The endorsement clearly stated it was to be effective February 23, 1966, which was about the time it was mailed to Bernica on behalf of Shunga Plaza, Inc. This was in consideration of the return premium of $20.00. When Mr. Bernica signed the company’s name to the endorsement and mailed the signed copies to Mr. Gucker, the agreement to delete the property at 1122 Van Burén from the policy was complete and binding. The appellee was then obligated to pay the $20.00 return premium. The fact that the check for $20.00 was not delivered in the due course of the mail did not reinstate the deleted insurance. The receipt of the $20.00 was not a condition precedent to the validity of the endorsement which deleted part of the coverage. As we have said, the endorsement was definitely stated to be effective February 23, 1966. It is a general rule that a promise by one party is a sufficient consideration for a promise or an act by another. It is the promise and not the performance thereof that constitutes the consideration. These rules were considered in First Federal Savings & Loan Ass’n v. Thurston, 148 Kan. 88, 80 P. 2d 7, where we said: “It is said in 12 Am. Jur., Contracts, § 113: “ ‘Subject to qualifications, hereinafter stated, it is a general rule that a promise by one party is a sufficient consideration for a promise by the adverse party. . . . “ ‘It is the promise, and not the performance thereof, that constitutes the consideration for the promise. Nonperformance of a promise which was the consideration for another promise does not constitute want of consideration, although it may be ground for an action for damages.’ “This also answers an argument made in the brief of appellee that plaintiff could have recovered against her husband for the balance due on the sale of the lot by suit on the original contract. The only recovery that could have been had against the husband on a breach of that contract by him would have been damages, and not the balance of the purchase price. “In Kramer v. Walters, 103 Kan. 135, 172 Pac. 1013, it was held that— “ ‘A binding contract can be made by mutual promises; each promise furnishes a sufficient consideration for the other.’ (Syl. ¶ 4.) (See, also, Peoples Exchange Bank v. Miller, 139 Kan. 3, 29 P. 2d 1079, and 6 R. C. L. 676.)” (p. 94.) Appellants argue: “It is too late to return the premium after the damage has been done. It should have been returned upon confirmation of the company [when the copies of the endorsement were returned] or at least within a reasonable time. Assuming the validity of appellants’ argument, we cannot say that three months was an unreasonable time under the circumstances. The check for the $20.00 return premium was mailed at once. It was its loss in the United States mail that caused the delay. We do not have a situation here where the party intentionally causing the failure of consideration is attempting to enforce the provisions of the contract such as was present in the cases mentioned by appellant. (Union Gas and Fuel Corporation v. Teton Syndicate, 119 Kan. 236, 237 Pac. 908; De Forest Radio, Telephone & Telegraph Co. v. Standard Oil Co. of New York, 238 Fed. 346.) The appellants contend that the trial court erred in its conclusion that a new contract was created by the endorsement. This is based largely on the contention that there was no meeting of the minds. The case was tried to the court without a jury. The appellants introduced some evidence as to Mr. Bernicas expectations and impressions. However, the trial court, in a well written memorandum opinion, makes no reference to and bases no findings on such oral testimony. It found that: . . This endorsement was clear and unequivocal. This is simply a new agreement as to the portion of the coverage afforded by the policy. . . An unambiguous agreement is not subject to interpretation. When the intent of the parties is evidenced by a clear and unequivocal written agreement, the intention ceases to be an issue and the courts are bound by the agreement. The endorsement states specifically the policy number, the name of the insurance company, the original amount of the policy, the new amount of the policy with the deletion, the total amount of the premium, the amount of the unearned premium and the effective date of the endorsement. There was also the mutual agreement to delete item # 1: “In consideration of return premium of $20.00. It is understood and agreed that item jf 1 is deleted from this policy.” There is no basis for construing such clear and unambiguous language. In Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310, we stated at page 216 of the opinion: “. . . Where a contract is not ambiguous, the court may not make another contract for the parties; its function is to enforce the contract as made. (State Highway Construction Cases, 161 Kan. 7, 166 P. 2d 728; Watkins v. Metropolitan Life Ins. Co., 156 Kan. 27, 131 P. 2d 722; Movitz v. New York Life Ins. Co., 156 Kan. 285, 133 P. 2d 89; and Gorman v. Fidelity & Casualty Co. of New York, supra [55 F. 2d 4].” (See, also, Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 538, 227 P. 2d 571.) Also in Anderson v. Rexroad, 175 Kan. 676, 266 P. 2d 320, we stated: “. . . The established rule is that the intention of the parties and the meaning of a contract are to be deduced from the instrument where its terms are plain and unambiguous; that when the language is clear and unequivocal the meaning must be determined by its contents alone; that words cannot be read into a contract which import an intent wholly unexpressed when it was executed; and that the court may not make an agreement for the parties which they did not make for themselves (See West’s Kansas Digest, Contracts, § 143; Hatcher’s Kansas Digest [Rev. Ed.], Contracts, § 40). . . .” (p. 679. See, also, Blair v. Automobile Owners Safety Ins. Co., 178 Kan. 615, 617, 290 P. 2d 1028.) The appellants challenge the trial court’s finding that Mr. Bernica had authority to cancel insurance on behalf of the appellant, Shunga Plaza, Inc. On this issue the trial court found: “Mr. Bernica, as secretary-treasurer of Shunga Plaza, had and exercised authority to write checks, receive rents, handle insurance matters for the corporation. Plaintiffs claim Bernica was required to have a corporate resolution to handle this insurance matter; the evidence is that this is a loosely operated corporation and the board of directors never met anyway. Mr. Bernica certainly had authority to handle insurance matters for the corporation, in fact, as well as impliedly.” • Part of Mr. Bemica’s testimony is summarized in the record as follows: “. . . Mr. Bernica could not recall whether there were any business meetings held in January, February or March of 1966. There was no corporate resolution when the insurance policy was transferred to the corporation in January of 1966, and there was no corporate resolution authorizing Mr. Bernica to sign the Endorsement. At the time of the loss involved herein, any two of the three stockholders, the stockholders being Mr. Bernica, Mr. Anderson and Mr. Hannah, were authorized to write checks on a co-signing basis. Mr. Anderson and Mr. Bernica collected the rents on the buildings involved herein and Mr. Bernica handled all insurance matters and transactions affecting funds.” (Emphasis supplied.) There being substantial evidence to support the trial court’s findings on this issue, we adhere to the well established rule that it is not the province of this court to weigh the evidence on appellate review. The authority to release corporate rights may be inferred from past conduct of the corporation or the corporation may be bound by an agent acting within the apparent scope of his authority. (19 Am. Jur. 2d, Corporations, § 1193, p. 614.) In Thresher Co. v. Implement Co., 103 Kan. 532, 175 Pac. 392, we held: “While a secretary of a corporation ordinarily has not authority by virtue of his office to bind his corporation, the corporation may be bound by his acts when it intrusts him with the management of its business, and where his acts are in furtherance of the corporate business.” (Syl. ¶ 2.) A careful examination of the record discloses nothing that would justify our disturbing the judgment of the trial court. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Kaul, J.: This is an appeal from an order denying relief under the provisions of K. S. A. 60-1507. In 1966 petitioner, Alfred G. Jones, was convicted of eight separate crimes, including two of murder in the first degree. The crimes related to a robbery of Steens Discount Store in Wichita, and the unlawful possession and use of pistols in connection therewith. Petitioner appealed to this court where the convictions were upheld. (State v. Jones, 202 Kan. 31, 446 P. 2d 851.) Thereafter petitioner filed this action under K. S. A. 60-1507 collaterally attacking the judgments. The trial court appointed present counsel to represent petitioner in the 60-1507 proceedings. The motion was set down for hearing, counsel argued the points raised by petitioner, and on May 15,1969, the motion was denied. Petitioners counsel, who has skillfully and industriously represented petitioner during trial, on direct appeal and now in these proceedings, admits that all of the matters raised in petitioner’s motion were presented to the trial court during trial and before this court in the direct appeal. In his direct appeal petitioner’s industrious counsel specified twenty points of error which were briefed and presented to this court. In a comprehensive opinion, Mr. Justice Fatzer speaking speaking for the court dealt with each of the points raised. The opinion in State v. Jones, supra, is incorporated, herein by reference. In the instant appeal petitioner specifies three points; namely, search warrants were not issued upon probable cause; a plea in abatement that an arrest warrant was improperly issued, should have been sustained; and the jury was improperly instructed on flight. An examination of our opinion in State v. Jones, supra, reveals that each of the points raised by petitioner was discussed and disposed of. We find no further arguments presented on any of the points which compels reconsideration. Supreme Court Rule No. 121 (c) (3) (201 Kan. xxxiii) provides that a proceeding under K. S. A. 60-1507 is not to be used as a substitute for a second appeal. The aforementioned rule has been applied in a number of cases (Lee v. State, 204 Kan. 361, 461 P. 2d 743; King v. State, 200 Kan. 461, 436 P. 2d 855; Carter v. State, 199 Kan. 290, 428 P. 2d 758; Minor v. State, 199 Kan. 189, 428 P. 2d 760; Brown v. State, 198 Kan. 527, 426 P. 2d 49, and Hanes v. State, 196 Kan. 404, 411 P. 2d 643), and is clearly applicable to the present case as well. The judgment is affirmed.

The opinion of the court was delivered by Fatzer, J.: The appellant, Matthew Cushinberry, has appealed from a conviction by a jury for the commission of second degree burglary and larceny (K. S. A. 21-520 and 21-524) and a sentence imposed from ten to twenty years pursuant to K. S. A. 21-523, 21-524 and 21-107a. At about 2:00 o’clock a. m. on Saturday, January 6, 1968, the Atchison Police Department received a report that a station wagon was suspiciously parked on North Seventh Street with its motor running. The report was radioed to police patrol cars and officers of two patrol cars converged on the area, located the car, and followed it. The police officers stopped the station wagon and upon approaching it, noticed that one Charles Brown was driving, a Marion Redman was in the right front seat, the appellant, Matthew Cushinberry, was in the rear .seat, and on the rear floor beside Cushinberry was a portable television set. Because of the extreme cold, the officers asked the three men to drive to the police station one block east. At the police station, Redman, the owner of the car, agreed to a search of the vehicle. The police officers examined the television and found it to be a General Electric 17” black and white set with a brown and gray case. None of the occupants of the station wagon were arrested at that time. Later in the morning and on the same day, the custodian at the Centennial Corporation, Inc., located on North Seventh Street near where the station wagon was parked, arrived to clean the building. Upon opening the building, he noticed damage to the room and file cabinets and that a portable television was missing. He called Mr. Monk, the president of Centennial Corporation, Inc. Upon arrival with the police, Mr. Monk found the room “a complete mess”; the filing cabinets were in disarray, having been broken open with some type of tool. A General Electric portable television set with a brown and gray case was missing. On January 8, 1968, a complaint was filed and a warrant issued charging the appellant in one count with burglary in the second degree and larceny in violation of K. S. A. 21-520 and 21-524. The latter statute provides in substance that if any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count. Following the appellant’s arrest on charges of second degree burglary and larceny in connection with the burglary, and on January 19,1968, he was given a preliminary examination before Richard A. Dempster, judge pro tem of the City Court of Atchison; the duly elected judge of said court, the Honorable Richard P. Senecal, being absent from Atchison County. The appellant was represented at the preliminary examination by his employed counsel, Maurice P. O’Keefe, Jr., of the Atchison County Bar. At the conclusion of the preliminary examination, the appellant was bound over to the first day of the next regular term of the district court to appear and answer the charge made against him. The judge of the City Court filed a transcript of the preliminary examination with the clerk of the District Court, which recited in part: . . [T]he complainant and the witnesses to support the prosecution were examined on oath in the presence of said defendant; and from the whole examination and after argument of counsel, the Court finds that the offense as charged herein has been committed and that there is probable cause for charging said defendant with the commission of said offense.” It appears the judge pro tern used the term “the offense as charged herein” as referring to the charges of second degree burglary and larceny in connection with the burglary since both offenses were contained in one count. The county attorney timely filed an information charging the appellant with second degree burglary and larceny in one count. On April 8, 1968, the appellant appeared before the district court without counsel. With the appellant’s consent, the district court appointed Mr. William C. O’Keefe, a member of the Atchison County Bar and a brother of counsel who was employed to represent the appellant at the preliminary examination. On that date, the appellant was arraigned on the charges contained in the information and entered a plea of not guilty. On April 15,1968, counsel for appellant filed a petition for change of venue and an objection to the selection of the jury panel. Attached to the petition for change of venue were two newspaper articles from the Atchison Daily Globe, the first, dated January 12, 1968, making reference to the setting of the preliminary examination and of the fact that the three named occupants apprehended in the station wagon had previously been convicted of felonies, and that “there is a burglary involved here.” The second, dated January 19, 1968, made reference to the fact the appellant had been bound over to the district court to stand trial. The objection to the selection of the jury panel alleged that “said selection does not represent a proportionate amount of race and color found [within] the County of Atchison and that as a result the defendant, Matthew Cushinberry, is prejudiced by the selection of the panel.” The record discloses the district court considered and overruled the appellant’s petition for change of venue, and, as hereafter noted, likewise overruled the objection to the selection of the jury panel. The case was tried before a jury on April 15, and 16, 1968, and it returned its verdict finding the appellant guilty of burglary in the second degree and larceny. Following his conviction, the appellant employed James E. Woodson, and William L. Harris, Jr., members of the Shawnee County Bar, to represent him and the district court excused William C. O’Keefe from further service in the case. On May 10, 1968, appellant’s motion for a new trial was heard by the district court and overruled. The appellant timely perfected his appeal to this court. Thereafter, Mr. Woodson and Mr. Harris withdrew from the case and the district court appointed John S. May, a member of the Atchison County Bar, to perfect and present this appeal. The appellant primarily raises two points which he contends denied him a fair trial in the district court. He first argues he was denied effective assistance of counsel. In this respect he argues that a “fledgling” attorney was appointed to represent him—one who had not previously conducted a trial. He then sets out in his brief, omissions on the part of his counsel which he contends denied him “effective assistance.” He first argues that counsel permitted him to enter a plea of not guilty to an information charging larceny when he had not been bound over to the district court for such offense. As indicated, the complaint and warrant issued for the appellant’s arrest charged him with both second degree burglary and larceny all as permitted by K. S. A. 21-524, and the examining magistrate bound the appellant over as charged. We think the point requires no further discussion. It is next argued that counsel failed to present the petition for change of venue to the district court. The appellant’s motion for a new trial alleged the district court erred in “denying” the petition. Obviously, the petition for change of venue was presented to the district court and denied. It may not be said counsel was derelict because the petition for change of venue was not sustained. On this point, it appears the district court was of the opinion the publicity through the two newspaper articles did not prejudice the appellant’s right to a fair and impartial trial because it was derogatory to him and prejudicial to his interest. So far as the record discloses, no suspicion of prejudice against the appellant entered the jury box when the jury was sworn and there is nothing in the record to indicate that a fair and impartial trial could not be had in Atchison County. See State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63. Moreover, on vok dire examination, members of the panel stated they had not read the newspaper articles previously mentioned. The appellant cites Sheppard v. Maxwell, 384 U. S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507, but, as indicated, there is nothing to support his contention of prejudicial publicity as a result of the newspaper articles published three months prior to trial, and no error can be predicated on the point. It is next contended that counsel failed to object to the validity of the preliminary examination before the judge pro tem, because Mr. Dempster was counsel for the Centennial Corporation, Inc. No error was committed. In the first place, appellant was represented by employed counsel at the preliminary examination. In the second place, had the question been raised prior to appellant’s plea of guilty, as he suggests, evidence would have shown that Mr. Dempster informed all parties of the possible conflict of interest prior to the preliminary examination and the appellant and his employed attorney waived such challenge and agreed that Mr. Dempster sit as the examining magistrate at the preliminary examination. The appellant next complains the statement of Charles Brown, which is claimed to have exonerated the appellant and which was introduced in evidence at the preliminary examination, was lost from the file when the transcript of the examining magistrate was certified to the district court. It is clear from the record that trial counsel did not lose the statement. It was obtained prior to the preliminary examination and thereafter was lost from the file. In any event, trial counsel made full use at the trial of such a statement and the state did not contest its existence. The appellant next contends counsel was ineffective by reason of his failure to object to hearsay testimony of police officers about a station wagon being parked on Seventh Street with its motor running. Accusations of ineffective counsel are very easy to make. Hindsight has far better vision than foresight. Experience has demonstrated that the most skilled attorney may not succeed in blocking all improper questions and irrelevant statements, and it is an easy matter to go through a transcript and pick out errors after the heat of battle has cooled. In view of the record as abstracted and an examination of the briefs, we conclude that trial counsel properly and efficiently represented the appellant at the trial and should be commended rather than criticized. It should be remembered that effective assistance of counsel cannot be equated with successful assistance of counsel. (Johnson v. State, 203 Kan. 947, 457 P. 2d 181.) Moreover, it has been held that the adequacy of services performed by an attorney on behalf of a client must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. (Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.) The appellant was not denied his right to effective assistance of counsel under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States or as prescribed by Section 10 of the Bill of Rights of the Constitution of the State of Kansas. See Toland v. State, 200 Kan. 184, 186, 434 P. 2d 814. The appellant contends the district court erred in not granting his motion for a new trial, and, among other things, argues “[t]hát there were no Negroes called into the jury box to set (sp) as prospective jurors.” The contention relates to the appellant’s objection to the selection of the jury panel. As indicated, that objection alleged “said selection does not represent a proportionate amount of race and color found [within] the county of Atchison and that as a result, the defendant, Matthew Cushinberry, is prejudiced by the selection of the panel.” The appellant states in his brief that according to the 1960 census, the Negro population of Atchison County was 6.8 percent and that the petit jury panel from which appellant’s jury was drawn was only 1.25 percent Negro. The only evidence on the point was the affidavit of the clerk of the district court to the effect she had certain responsibilities in connection with members of the jury panel; that the clerk’s office does not record the race of individual members of a jury panel, but she had examined the names of the regular panel for the April 1968 term of the district court and by personal acquaintance she knew that at least three members of the panel were of the Negro race. The appellant’s supplemental abstract contains the affidavit of one Shirley Ferguson who stated she was one of two Negroes who were on the jury panel; that there may have been others of whom she had no personal knowledge; that she orally requested the district judge to be excused from service by reason of the illness of her husband, and that she was excused; further, that one other Negro, Gladiola Smith, asked to be excused and was excused by the district judge from service on the jury panel. No other complaint is made as to the lawful selection of the jury panel, and there is nothing in the record to indicate any systematic or purposeful exclusion of a member or members of the Negro race from service on the jury panel. One witness at the hearing of the motion for a new trial testified that in fourteen years of practice of the law in Atchison County he could remember Negroes on the panel, but did not mention any figures or ratio. The fact that there were no Negroes who sat on the jury which tried the appellant would not warrant the granting of a new trial. The entire matter of race discrimination in the selection of a petit jury was considered in the recent case of State v. Clift, 202 Kan. 512, 449 P. 2d 1006, where it was held: “Although the law requires that a jury panel be truly representative of a cross-section of the community in which a defendant is to be tired, a Negro defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his race, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exclude members of a class from the jury panel.” (Syl. ¶ 4.) See, also, State v. Palmer, 173 Kan. 560, 570, 251 P. 2d 225, and State v. Lopez, 182 Kan. 46, 50, 51, 318 P. 2d 662. The objection to the jury panel on the basis of disportionate composition as to race was clearly not sustainable and the district court did not err in overruling the motion for a new trial on the point. The appellant further contends the district court erred in overruling his motion for a new trial and claims the verdict was not sustained by competent evidence. He argues that Charles Brown, the driver of the station wagon on January 6, 1968, who had made conflicting statements, was a confirmed alcoholic and was so completely unreliable as to justify the court in directing that a jury be given an opportunity to re-examine his credibility as an alleged accomplice. It appears that prior to the preliminary examination, Brown gave counsel a statement to the effect the appellant was not involved in any burglary of the Contennial Corporation, Inc., or of stealing or taking any item therefrom. At the trial, Brown testified on behalf of the state, that Cushinberry and Redman got out of the car in Atchison on North Seventh Street; that they were gone for a time and came back together but he did not know who had the television. He further testified that any statement he had previously given was not reliable because he had been drinking practically all day on January 6.. Later, and following the trial, and after Mr. Woodson and Mr. Harris were employed to represent the appellant, the two attorneys and the appellant went to Leavenworth and took Brown’s statement where he reiterated that his testimony at the trial concerning the appellant’s participation in the burglary and larceny was true as he fairly believed. The appellant testified on his own behalf at the trial, and denied any participation in the burglary and larceny. It is evident the jury believed the testimony of the state’s witnesses and rejected the appellant’s testimony which was discredited to some extent on cross-examination. It is well settled that credibility of witnesses will not be passed upon, or conflicting evidence weighed, on appellate review; and such review is limited to ascertaining whether there is a reasonable basis for an inference of guilt. (State v. Chuning, 201 Kan. 784, 443 P. 2d 248, cert. den. 393 U. S. 1069, 21 L. Ed. 2d 712, 89 S. Ct. 726.) Moreover, a verdict of guilty, when approved by the district court, must stand if supported by substantial competent evidence. (State v. Shaw, 195 Kan. 677, 408 P. 2d 650.) Applying the above rules, we conclude there was substantial competent evidence to support the verdict of guilty. We have carefully examined other points raised by the appellant and find them to be entirely without merit. The judgment of the district court is affirmed.

The opinion of the court was delivered by Fontron, J.: For some fourteen years Harry G. Miller, the plaintiff and appellant herein, worked for the defendant, Beech Aircraft Corporation. On March 16, 1964, on advice of his doctor, Mr. Miller gave up his employment for reasons of health. Approximately twenty-three months thereafter he filed this action for per sonal damages allegedly resulting from his employer’s negligence in not furnishing him a safe place in which to work. Trial was commenced to a jury, but at the conclusion of the plaintiff’s evidence the trial court sustained the defendant’s motion for a directed verdict on three grounds: 1. Plaintiff’s evidence failed to show a causal connection between his employment and his physical condition. 2. Plaintiff’s cause of action accrued more than two years before suit was filed and recovery is barred under K. S. A. 60-513 (4). 3. Plaintiff assumed the risk of the conditions of his employment. After a motion for new trial was overruled, the plaintiff filed this appeal. We shall consider separately each ground on which the trial court ruled in directing judgment for the defendant. Before doing so however, a brief résumé of portions of plaintiff’s evidence is in order. When Mr. Miller first went to work for Beech he was in the shipping department. After a few months he was transferred to the electrical department where he became adept at soldering. In about 1958 he began working on the form board. This work consisted first of soldering wires into electric plugs and then soldering the other ends into the form board. In the process, it was necessary to strip fiberglass insulation from the ends of the wires. The job required Miller to face his work very closely to make sure it was done correctly. The area in which plaintiff worked was on a balcony directly beneath the roof. The work area was dusty and dust accumulated on the exposed rafters overhead. Ventilation was poor although fans were installed on the rafters in 1958 at Mr. Miller’s request. Two requests by Mr. Miller for face masks were ignored as was a further request for additional ventilation. In both 1958 and 1959 the plaintiff, who had become concerned about his lungs, consulted Dr. Bemstorf of Winfield who took some chest X-rays. The record does not disclose the doctor’s diagnosis or what, if anything, he advised his patient. The plaintiff, however, continued his employment with Beech, and later consulted with two other doctors in about 1963. We know nothing of their diagnoses or advice. A short time before leaving his job, Mr. Miller consulted Dr. Hird and as a result of this conference concluded he must either quit his work or die. Choosing the first alternative, the plaintiff parted company with Beech on or about March 16, 1964. The plaintiff’s evidence will be explored more fully as it becomes material to the issues presented. Initially, we must determine whether plaintiffs evidence was sufficient to establish a causal connection between the conditions under which he labored and the condition of his health. First of all, what was the state of his health? In July, 1967, Mr. Miller first visited Dr. Clifford Sumner Reusch, an associate of the Snyder Clinic in Winfield, Kansas, who, after consulting X-rays and tests taken at that time, as well as two sputum tests taken at the clinic early in 1965, diagnosed Miller’s condition as (1) emphysema and (2) pulmonary fibrosis, or scarring of the lungs, leaving him totally unable to perform work requiring physical effort. The sputum tests disclosed evidence of fiberglass strands, while the 1967 X-ray showed “heavy markings or inflammatory residuals” which had appeared or become more marked since the X-rays taken by Dr. Bernstorf in 1958. On direct examination Dr. Reusch testified that: "... I think I can state that by virtue of the progressive changes in the chest x-ray and in the respirometric studies obtained on this patient during the tenure of his employment as—or in an aircraft factory and during that period of time during which the patient indicated the onset of his symptoms and the progression of his disease, that one can establish a relationship between the periods of employment as an aircraft worker and the time of occurrence and progression of the disease.” On cross-examination, in response to a question propounded by defense counsel, Dr. Reusch stated: “I have not said that his physical condition is work connected.” Again on redirect examination, the doctor was asked the following question and gave the following response: “Q. ‘All right. Now, you stated that you can not or will not state that this disability is work connected—did I correctly quote you on that—on cross-examination?’ “A. ‘That is correct.’ ” The doctor’s last two answers are highlighted in the defendant’s brief and are the pegs upon which Reech now hangs its argument that no causal connection was shown. However, Reech conveniently overlooks Dr. Reusch’s opinion as to causation given on his redirect examination: “My opinion, based upon what I’m told by the patient and based upon the possibilities of its occurrence is that there is a relationship between the inhalation of noxious gases and particulate matter in his work environment, and the development of his pulmonary fibrosis.” Other portions of the doctor’s testimony, which need not at this time be quoted, lend corroborative support to the opinion he had expressed. In conjunction with the medical opinion voiced by Dr. Reusch, certain lay testimony is also entitled to be considered in determining whether there was sufficient evidence of causal relationship between Miller’s employment and his pulmonary fibrosis to go to the jury. In Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205, an action for workmen’s compensation, there was inconclusive medical evidence to establish causal relationship between the fatal heart attack suffered by the workman and the job he was doing. In this situation we said: “In the past the Supreme Court of Kansas when specifically confronted with the issue here presented in workmen’s compensation cases has not required the trial court, or fact-finding body, to confine its consideration of a workman s injury to the testimony of experft] medical witnesses, (p. 800.) “. . . [A] determination of the factual issues—whether the injury arose out of the employment—need not be confined to a consideration of the testimony of the medical expert witness, which standing alone was inconclusive, but may include consideration of other testimony in the case as well.” (p. 802.) See, also, Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793. Although both Gray and Gilliland involved claims for workmen’s compensation, we believe their underlying rationale is just as valid in the present case. The record contains lay testimony of the conditions under which the plaintiff worked; of lack of proper ventilation; of long time use of fiberglass which permeated the atmosphere and worked into plaintiff’s clothes and hair, nearly driving him crazy with itching and requiring daily changes of clothes and daily shampoos; of dust and other particles so thick that coffee, milk and other drinks had to be consumed as soon as poured, else they would be contaminated by “specks and spots and dust and stuff.” Lay testimony also pointed to a continuing deterioration in Miller’s health which commenced shortly after his exposure to such conditions. It is our opinion that from the evidence, both lay and expert, the jury might reasonably have drawn the inference that plaintiff’s disability was job-connected. We believe the trial court erred in deciding as a matter of law that the plaintiff’s evidence failed to establish a causal relationship between his employment and damage to his health. Turning to the second point raised on appeal, the plaintiff contends his cause of action accrued in March, 1964, when he first became aware of the nature and extent of the damage to his health. Under the provisions of K. S. A. 1968 Supp. 60-513 (4) the plaintiff’s action to recover damages was required to be filed within two years after his cause of action accrued. As to accrual, the statute reads in pertinent part: “The cause of action in this section shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.” Pulmonary fibrosis, according to Dr. Reusch, is a chronic illness caused by chronic inflammation or chronic infection induced by irritating foreign substances in the lungs, such as fiberglass. As we understand the disease it is progressive in nature, without external or visible sign, and may remain latent for many years. In our judgment, the accrual of a right of action for damages resulting from such insidious disease would be governed by the foregoing statutory provision. The Kansas statute declares what seems to us the proper rule, although there is some diversity of opinion among authorities throughout the country. - (See Anno., 11 A. L. R. 2d 277, Limitations—Contracting Disease; 1 A. L. R. 2d Later Case Service, 1109, et seq.) One of the leading cases in this area is Urie v. Thompson, 337 U. S. 163, 93 L. Ed. 1282, 69 S. Ct. 1018, 11 A. L. R. 2d 252, where the plaintiff, a locomotive fireman with thirty years of duty to his credit, became incapacitated from pulmonary disease diagnosed as silicosis and caused by continuous inhalation of silica dust during the course of his employment. The court rejected a claim by the defendant that Urie’s suit was barred by the statute of limitations, observing that there was no suggestion that he should have known he had silicosis until he became too ill to work. In its opinion the federal court, on page 170, quoted from Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal. App. 378, 381: “Tt follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently the afflicted employee can be held to be “injured” only when the accumulated effects of the deleterious substance manifest themselves. Our court has tacitly recognized the substance of the rule in the recent case of Powell v. City of Haysville, 203 Kan. 543, 455 P. 2d 528, where plaintiff, who worked at the city purification plant, came in contact with such chemicals as lime, alum and chlorine. In 1965, he was hospitalized with a lung ailment and was warned by his doctor that repeated exposure to the chemicals would be harmful to his health. Nothwithstanding his doctor’s advice, plaintiff returned to work, becoming totally incapacitated the following year. A dispute arose over whether plaintiff had filed his claim against the city within the time required by K. S. A. 12-105, the plaintiff contending that the time did not commence to run until the full nature and cause of the damage was known to him in the spring of 1966. The sole issue framed on appeal was whether there was a good faith question of fact as to the plaintiff’s knowledge of his injury and cause thereof at the time he was hospitalized in 1965. This court, in upholding a summary judgment for the city, said: "The nature of plaintiff’s ailment was manifest and its connection with his employment was fully known to him in 1965, when he could have instituted an action.” (p. 550.) The Powell case clearly recognizes that a cause of action for damages resulting from disease contracted during the period of his employment comes into being when the disease and its cause becomes manifest, or is reasonably ascertainable. This conclusion finds support in what has been said in a number of our past decisions. (See Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64; Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986; Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976.) Without getting into specifics, we incline to the belief it was for the jury to determine in this case when plaintiff’s disabling disease and its cause became manifest or when, in the exercise of due care, the same was reasonably ascertainable. It is true that Mr. Miller for a number of years was concerned and had sought medical advice as to possible lung damage, but there is no evidence that he was warned of the risk of returning to his job. We are of the opinion that the evidence as to what if any medical advice plaintiff received, and whether he was or should have been aware of the actual state of his health and the connection between his employment and the pulmonary fibrosis ravaging his lungs, was not sufficiently conclusive for the trial court to resolve, as a matter of law, the issue raised by the statute of limitations. Somewhat similar considerations arise with respect to the doctrine of assumption of risk, the third premise on which the trial court directed a verdict. Under the doctrine of assumption of risk a workman is deemed to have assumed the usual and ordinary risks incident to his employment. (56 C. J. S., Master And Servant, § 357, pp. 1148, 1149; Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103; Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765.) Rut the rule is not so heartless as to compel a workman’s acceptance of extraordinary risks not usually appertaining to the employer’s trade or business, or of risks which are concealed or which result from the master’s negligence (56 C. J. S., Master And Servant, § 361, pp. 1160-1163) unless and until the workman knew, or in the exercise of reasonable care should have known, of the risks involved. (56 C. J. S. Master And Servant, § 382, pp. 1189-1191; Railway Co. v. Bancord, 66 Kan. 81; 71 Pac. 253; Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86; Hernandez v. Bachand, 199 Kan. 82, 84, 427 P. 2d 473.) The defendant calls attention to language in certain of our cases to the effect that assumption of the ordinary risks of employment is usually not a question of fact, but one of law. True, such language is to be found, but it occurs in connection with factual situations where the risks are ordinary, and appreciation of the danger must be imputed to the workman. To our knowledge, this court has never said that assumption of risk is invariably a question of law. Indeed, in more than one instance the court has declared that under the existing circumstances, the question was properly one for submission to the jury. (Railway Co. v. Bancord, supra; Smith v. Railroad Co., 108 Kan. 151, 194 Pac. 318; Harvey v. Palmer, 179 Kan. 472 296 P. 2d 1053.) In the present case we think the question of whether or not Mr. Miller assumed the risk of incurring the lung condition from which he suffered should have been submitted to the jury for its determination. We cannot say the risk of contracting pulmonary fibrosis is ordinarily incident to the aircraft industry. Neither do we view the evidence as compelling the legal conclusion than Miller was fully ap preciative of the nature and extent of the risks he was incurring by staying on his job. In 56 C. J. S., Master And Servant, § 389, p. 1197, the text recites: “. . . Likewise, it is not sufficient that the servant should merely know that there is some danger’ attending the service, but it is further essential that there should be actual understanding and appreciation of its nature and extent, unless it is so obvious that the servant should know of and appreciate it.” Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105, bears considerable analogy to the case at bar. In Tecza the employee fell and was injured while attempting to move a large pickling vat onto a truck. The jury found the employer was negligent in failing to provide sufficient lighting. With respect to this aspect of the case, the plaintiff testified he had complained of the absence of light every day for several years and was promised that changes would be made. In upholding a judgment recovered by the plaintiff, this court stated: “[W]e think the defense of assumed risk was not conclusively established. In order that a recovery shall be defeated upon that ground the plaintiff must not only have known of the existing conditions—he must also have realized and appreciated the danger that resulted from them. (26 Cyc. 1199.) This is not necessarily established by the fact that he made complaint; in doing so he may have had in mind merely the inconvenience that resulted from the want of additional lights. The matter of making the place safe to work in was not his problem. He was not required to take notice of any but the most obvious dangers. But much more than this was required of the employing company. . . .” (pp. 100, 101.) In Hook v. Railway Co., 116 Kan. 556, 227 Pac. 531, it was said: “. . . In order for the defense of assumed risk to be established it was not enough that the plaintiff knew of the physical facts as they existed; he must have known and appreciated the danger. . . .” (p. 559.) See, also, Suniga v. Railway Co., 94 Kan. 201, 146 Pac. 364; Crouch v. Missouri Pac. Rld. Co., 124 Kan. 305, 259 Pac. 799. We conclude the trial court erred in sustaining the defendant’s motion, for a directed verdict. The judgment is reversed and the case remanded to the trial court with directions to grant a new trial.

The opinion of the court was delivered by Harman, C.: Appellant Lloyd O. Holsey was convicted by a jury of the offense of burglary in the second degree and sentenced under the habitual criminal act to a term of not less than ten nor more than twenty years in the penitentiary and has appealed from that conviction. The facts developed at trial may be summarized as follows: The Way Station is a place of business located in Wichita, Kansas. Its business is the sale of ladies’ ready-to-wear, antiques, furs and jewelry. A Mr. and Mrs. Sarjeant were living adjacent to the Way Station, their bed room being approximately 136 feet east of the showroom. During the early morning of June 3, 1967, shortly after the Sarjeants had retired, they heard a noise in the direction of the Way Station. Looking toward it they saw a man enter the building through the showroom display window and disappear into the interior. Mr. Sarjeant telephoned the police. Then Mr. and Mrs. Sarjeant each secured a pair of binoculars and resumed their observation of the building. The display window was well lighted, being illuminated inside by two 200 watt bulbs and three spotlights directly above the window. They saw a man (whom they later identified as the appellant) come from the interior of the building and stand in the showroom area facing them. The man then crawled through the window and went over to a 1951 Ford automobile parked about twenty-five feet south of the building. The Sarjeants observed the man open and close the trunk of the automobile, then return to the building and start to crawl back through the window. The man stopped and returned to the automobile and stood by it. A police vehicle with its spotlight on approached the building. The Sarjeants observed the man squat down beside the Ford automobile, then, as the police vehicle came closer, jump up and leap over a yard fence out of view. The glass in the showroom window had been broken from the outside. Underneath the rear bumper of the Ford automobile the police officer found a flashlight and on the rear floorboard they found a screwdriver and hammer. The license tag on the automobile had been issued to appellant. Mr. Sarjeant described to the police the man he had seen and later identified appellant’s photograph from a group submitted to him. At a latter date not shown in the record appellant was arrested by FBI agents at Hutchinson, Kansas, on a federal bank robbery warrant. Appellant had dyed his hair white or “bleached blond.” He was returned to the Sedgwick county jail at Wichita and in a lineup was identified by the Sarjeants as the man they had seen in the showroom window. Further facts will be related as they become pertinent to the issues raised. Upon appeal appellant contends the trial court erred in denying his motion for change of venue. It appears that while awaiting trial appellant allegedly was involved in an unsuccessful attempt to break jail. He was charged with this offense and after some publicity by the news media respecting it he filed a motion asking that this case be sent to another district for trial because of prejudice aroused within Sedgwick county. At the hearing of the motion no evidence was offered in support of the motion, except a brief affidavit by appellant’s counsel, and no facts were developed beyond counsel’s oral argument. Our case law on the issue raised has been exhaustively covered in State v. Turner, 193 Kan. 189, 392 P. 2d 863, State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. ed 2d 64, 87 S. Ct. 63, and State v. Paxton, 201 Kan. 353, 440 P. 2d 650, in view of which we need only say appellant’s failure to present affirmative evidence that prejudice existed so as to make it reasonably certain he could not obtain a fair trial requires our holding the trial court did not abuse sound discretion in denying the motion for change of venue. Prior to trial appellant filed a motion to suppress the testimony of the Sarjeants because of an illegal lineup at which he was identified. This motion was denied. Appellant urges error in the ruling as well as in a trial ruling restricting his inquiry into the circumstances of the lineup. It appears the lineup was conducted for the purpose of identifying appellant as a participant in the federal bank robbery offense as well as the state charge of burglary in question here. Appellant was represented at the lineup by two retained attorneys who also represented him at trial. Appellant complains his attorneys were not advised the lineup was going to be one for both the state and federal charges. The record does not sustain this contention factually. At the hearing on the motion to suppress the deputy county attorney stated he had advised one of appellant’s attorneys of the lineup for the purpose of the state charge. In response to direct question whether he was so advised the attorney stated, “I can’t say. . . .” The lineup was conducted in the Sedgwick county sheriff’s office with county and city police officers present along with the deputy county attorney. Appellant’s attorneys participated in the lineup. During the lineup the Sarjeants sat directly in front of appellant’s attorneys, although it must be said the attorneys may not have been aware of their identity. The witnesses were not permitted to talk in the lineup room. The lineup consisted of six Caucasian males of approximately the same height. All except appellant had dark hair. The officers had hair wigs for the individuals in the lineup to put on, along with a topcoat and a pair of sunglasses. The latter two items related only to the federal bank robbery charge as the testimony was the burglar was not wearing glasses and there was no mention of a coat. The lineup appears to have been fairly conducted. There was no showing it was unnecessarily suggestive or that the Sarjeants’ identification was in any way tainted by an invalid confrontation all as denounced by the Wade-Gilbert-Stovall rules. Any suggestivity which could have arisen would have been occasioned only by appellant’s balking at donning the sunglasses and wig. At trial the court sustained an objection to a question put upon cross-examination of Mr. Sarjeant as to whether the coat fit everyone in the lineup. As indicated the coat was pertinent only to the unrelated federal charge. Appellant did have rather full cross-examination as to the lineup and nothing prejudicial to him appeared. Appellant made no in-court objection to the Sarjeants identification of appellant during trial. We find nothing respecting the lineup identification which was prejudicial to him. Appellant complains of the trial court’s refusal to grant a mistrial following his cross-examination of a police officer. Upon direct examination the officer had testified to a conversation he had had with appellant which occurred after proper warning and advice as to constitutional rights had been given. The officer testified appellant stated he had dyed his hair and used an assumed name because he was a fugitive from justice. Counsel for the state carefully refrained from evoking mention of the bank robbery charge with the result there was no objection to the testimony given upon direct examination. Then, upon cross-examination, despite prior cautioning of the counsel for the state, his counsel brought out the fact appellant was wanted for bank robbery. So far as the record discloses this was the only mention before the jury of the bank robbery charge. Immediately upon this mention, at the request of counsel for the state, the jury was instructed to disregard this evidence. Under all these circumstances we cannot say appellant was prejudiced in the trial court’s refusal to grant a mistrial. Appellant makes several complaints respecting the receipt into evidence, by way of judicial notice, of a previous conviction. It appears appellant had in 1961 been convicted in the district court of Sedgwick county, Kansas, of the offenses of burglary in the second degree and larceny. At trial the prosecution had commenced the examination of the local attorney who had represented appellant at the time of his previous conviction, and evidently it had a deputy clerk of tire Sedgwick county district court in attendance with a copy of the journal entry evidencing that conviction. At this point the trial court called a recess during which, according to the deputy county attorney, both sides agreed the attorney’s identification of appellant as the same person he had represented in the previous proceeding would not be necessary. The attorney was then excused as a witness. The prosecution then requested the trial court to take judicial notice of the previous conviction, identifying it by case number and stating the deputy district court clerk was present to testify concerning it if necessary. Although there was objection to the admission of the previous conviction upon another ground (to be presently discussed) no objection was made to the request to take judicial notice of it at the time it was offered, or later at trial level. After denying the objection, the trial court took judicial notice of the file case No. E-7620 as a record of that court and excused the deputy district court clerk as a witness. The essentials of the conviction were stated to the jury. The journal entry of judgment evidencing it has been placed in the abstract by the appellant. The statement respecting the agreement reached during recess that appellant was the same person as the Lloyd O. Holsey convicted in case No. E-7620 is not disputed. There being no issue as to his identity in the previous proceeding we do not think the trial court erred in taking judicial notice of appellant’s previous conviction in that same court (see State v. Moffitt, 199 Kan. 514, 431 P. 2d 879, and 1 Underhill’s Criminal Evidence, 5th ed., § 63, p. 107.) Appellant’s objection to the introduction of his previous conviction was, and is now, that there was no showing of relevancy under any of the admissible exceptions in K. S. A. 60-455. The previous conviction was for the same offense as that with which appellant was charged, burglary in the second degree. The prosecution offered the conviction to show intent, absence of mistake and mode of operation. We have repeatedly held it is the similarity of the two offenses that makes the previous conviction relevant (see State v. Dearman, 203 Kan. 94, 453 P. 2d 7, cert. denied—U. S. -, 24 L. ed. 2d 173, 90 S. Ct. 194; also State v. Jenkins, 203 Kan. 354, 454 P. 2d 496). Finally, appellant complains of the instruction given to the jury respecting the previous conviction. There was no objection to it at trial level. It is very similar to that given in State v. Jenkins, supra, and under authority of that decision we hold appellant’s rights were not prejudicially affected by its use. The judgment appealed from is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Harman, C.: This is an action for the recovery of money. In a trial to the court plaintiff J. D. White prevailed and defendant Amaret C. Goldthwaite has appealed from the judgment rendered against her. The principal question upon appeal involves the validity of the service of summons upon defendant under our long-arm statute. Plaintiff commenced the action by filing his petition in which, so far as pertinent here, he alleged that on or about March 4, 1966, defendant by and through her agent John W. Porter, Jr. agreed to pay to plaintiff the total sum of $26,560 to repay a loan of $1,560 and $25,000 as the purchase price on a stock option on certain shares of the capital stock of International Disposal Corporation, payment of the $26,560 to be made March 10, 1966; that defendant refused to make the payment. Personal service of summons was had upon defendant in Oklahoma County, Oklahoma. She duly filed her answer in which she denied making the alleged agreement and also denied she had been properly served with summons because she had not submitted to the jurisdiction of the Kansas courts. Upon issues thus joined, trial was had to the court which made findings of fact and conclusions of law and rendered judgment in personam against defendant for $26,560 as prayed for. Jurisdiction to render such a judgment is to be sustained, if at all, by reason of K. S. A. 60-308 (b), (1), which provides that a nonresident, who in person or through an agent or instrumentality transacts any business within the state, submits himself to the jurisdiction of the Kansas courts. The evidence upon this issue, viewed in the light most favorable to plaintiff, reveals the following: Plaintiff was a resident of Wichita and was licensed to practice law in Kansas; he also conducted an oil and investment business in Kansas, Oklahoma and elsewhere; he was principally engaged in the oil business in Oklahoma; he maintained a business office and an apartment in Oklahoma City. Defendant resided in Oklahoma City. John W. Porter, Jr. (found by the trial court to be defendant’s agent), resided in Oklahoma City; he was an investment broker who counseled with defendant about her investments. In August, 1965, defendant agreed to purchase from a Mr. Cook an interest in some oil and gas leases in Oklahoma, obligating herself to pay the sum of $160,000. She paid Cook $40,000 and sought to borrow the balance elsewhere. In October, 1965, Porter approached plaintiff in Oklahoma City in behalf of defendant in an effort to borrow $120,000 for her. As a result plaintiff drafted a written agreement which Porter presented to defendant who signed this agreement at her home on November 1, 1965. The agreement provided that plaintiff was to loan, or cause to be loaned, to defendant $120,000, $60,000 to be advanced before November 5, 1965, and the remainder before November 15, 1965. The loan was to be repaid within six months and was to draw eight percent interest. Additionally, plaintiff was given an option to purchase from defendant 15,000 shares of International Disposal Corporation stock at $5.00 per share. Defendant also signed a promissory note payable to plaintiff and as collateral pledged certain Oklahoma farm land and 75,000 shares of International Disposal Corporation stock owned by her. The agreement also provided that plaintiff was to deliver a check for $1,000 to defendant to be considered as liquidated damages in the event plaintiff was unable to deliver-the loan to defendant. This check was attached to the agreement when it was presented to her for signature. Following execution of all the instruments defendant gave them to Porter who in turn delivered them to plaintiff at his Oklahoma City office. Upon receiving defendant’s stock certificates plaintiff brought them to Wichita, then returned 65,000 shares to his Oklahoma City office for safekeeping. He obtained a loan for $60,000 at a Wichita bank by reason of which he delivered $60,000 to Porter at Oklahoma City. Under a prior business arrangement (which had no connection with the case at bar) plaintiff had an escrow agreement at another Wichita bank to secure performance of a drilling contract in Turkey. As collateral for this agreement he had pledged certain Woods Industries stock certificates which he then owned. Upon receiving defendant’s International Disposal Corporation certificates plaintiff substituted as collateral at the second bank 10,000 of those shares for the Woods Industries Stock, withdrawing the latter and using them as collateral for the $60,000 loan obtained at the first bank. Defendant had no knowledge of plaintiff’s use of her stock as collateral at the time plaintiff made the substitution. Plaintiff was unable to secure the second $60,000 which was to be loaned defendant and he informed Porter of this fact about November 15, 1965. After some negotiations over a period of time, during which Porter and defendant each endeavored to secure the second $60,000 elsewhere, the contract was modified; the 65,000 shares of stock were eventually returned to defendant through Porter, and defendant was to raise the needed $60,000 herself; inasmuch as plaintiff had furnished only one-half the needed funds his stock option was reduced one-half, that is, from 15,000 to 7,500 shares. All Riese negotiations were carried on in Oklahoma with Porter acting on behalf of defendant. Meanwhile, about the middle of December, 1965, Porter had telephoned plaintiff in Wichita to the effect that defendant was short of cash for the Christmas season; that oil payments in the amount of $1,560 had accumulated on the oil leases but this amount was unavailable to her because she had not been able to complete her purchase; Porter suggested a loan in this amount; plaintiff agreed and directed that the notation on his $1,000 check deposited with defendant be altered from “pertaining to option agreement” to “portion of oil payment loan”, which was done, and the check was cashed by defendant; plaintiff mailed a cashier’s check in the sum of $560.00 to defendant. It appears that defendant’s vendor, Mr. Cook, twice agreed to an extension of time in which she could pay for her lease interest, and meanwhile the relation between plaintiff and defendant apparently remained amicable until a rise in price of International Disposal Corporation stock. On March 10 plaintiff and Porter conversed in Oklahoma City regarding the purchase by defendant of plaintiff’s stock option. Porter told plaintiff defendant would pay him $25,000 for the option. Later plaintiff told Porter by telephone that he would accept the offer and Porter told plaintiff “he would get me a check”. The two also discussed repayment of the $60,000 loan defendant still owed plaintiff. Porter later told plaintiff he didn’t have the $25,000 check and couldn’t do anything with defendant anymore because she didn’t think plaintiff should have anything beyond repayment of the loan. On March 15, 1966, Porter met plaintiff at a Wichita bank and delivered a check in payment of the $60,000 loan with interest. Porter also had two other checks in his possession, drawn by defendant on her personal account in an Oklahoma bank, both payable to plaintiff, one for $10,000 and one for $5,000. These checks were to be used by him to negotiate a purchase of plaintiff’s stock option for a sum not to exceed $15,000. However, plaintiff refused to accept anything less than the $25,000 he contended had been agreed upon. During the entire transaction plaintiff had no personal contact with defendant, all discussions and negotiations having been solely between plaintiff and Porter, defendant’s agent. The first question to be decided is whether defendant was subject to the jurisdiction of the trial court by reason of the “transaction of any business within this state” as contemplated by K. S. A. 60-308 (b) (1). Upon this issue the court made only a general ruling that it had in personam jurisdiction over defendant. In Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135, and Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128, this court discussed the history and philosophy of K. S. A. 60-308. In Woodring it was stated the statute reflects legislative intention to exert jurisdiction over nonresident defendants to the extent permitted by the due process clause of the fourteenth amendment to the federal constitution, and whether due process is satisfied depends upon the nature and quality of the activities of the defendant, which must be determined on a case by case basis. In Tilley pertinent federal decisions were reviewed to ascertain guidelines for due process limitations. They were found to include: Certain minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice (Internat. Shoe Co. v. Washington, 326 U. S. 310, 90 L. ed. 95, 66 S. Ct. 154, 161 ALR 1057); the interest of the forum in protecting its citizens, and itself, in the area of the subject matter which is the basis of the claim for relief (Travelers Health Assn. v. Virginia, 339 U. S. 643, 94 L. ed. 1154, 70 S. Ct. 927); the quantity and quality of defendant’s contacts within the forum state (Perkins v. Benguet Mining Co., 342 U. S. 437, 96 L. ed. 485, 72 S. Ct. 413); a substantial connection with the state justifying in personam jurisdiction (McGee v. International Life Ins. Co., 355 U. S. 220, 2 L. ed. 2d 223, 78 S. Ct. 199); and some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws (Hanson v. Denckla, 357 U. S. 235, 2 L. ed. 2d 1283, 78 S. Ct. 1228). (pp. 644, 645.) From the foregoing cases it appears there are three basic factors which must coincide if jurisdiction is to be entertained over a nonresident on the basis of transaction of business within the state. These are (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation (see Tyee Constr. Co. v. Dulien Steel, 62 Wash. 2d 106, 381 P. 2d 245; also, anno. 20 ALR 3d 1201). Plaintiff, as the party invoking the jurisdiction of the Kansas court, has the burden of proving existence of that jurisdiction. In his brief he summarizes the facts he contends meet the jurisdictional criteria, as follows: “The lender is a resident of the state of Kansas, and the money for the loan was obtained from a Kansas bank. Part of the International Disposal Corporation stock, which was pledged by Goldthwaite as collateral for the loan, was held in Kansas. Porter telephoned White in Kansas requesting that an additional $1,560.00 loan be made to Mrs. Goldthwaite. Porter agreed to pay the $25,000.00 to White in Kansas, although this agreement was never consummated. The cause of action arose directly from a series of transactions, part of which occurred in the state of Kansas.” Plaintiff was a resident of this state; however, he maintained living quarters and an office for his oil and investment business in Oklahoma and it was there defendant made her initial solicitation and, with two exceptions, all subsequent contacts with plaintiff throughout the entire series of events. True, the money loaned defendant by plaintiff, in carrying out a part of his contract obligation, came from a Kansas bank but it was plaintiff who obtained that loan, and its repayment at the Kansas bank was plaintiff’s obligation, not defendants. None of defendant’s activities has been offensive to a Kansas bank. So far as she was concerned plaintiff might have gone anywhere to procure the money he loaned her. It is also true plaintiff removed part of defendant’s collateral (the IDC stock) to Kansas. The difficulty is these were all activities of plaintiff, not defendant, and were of such nature as to serve his convenience and benefit rather than hers. In Hanson v. Denckla, supra, the federal supreme court pointed out: “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” (p. 253.) Plaintiff says defendant agreed to make the $25,000 payment for the purchase of his stock option in Kansas. We have combed the record and are unable to find factual basis for this statement. This oral agreement, which incidentally was controverted by defendant’s evidence, is established only by plaintiff’s testimony and we find no mention as to where payment was to take place, only that “he [Porter] would get me a check”. Porter did telephone plaintiff in Wichita requesting the $1,560 loan which was eventually consummated in Oklahoma, and on March 15 he did go to Wichita to pay the $60,000 debt which was never in controversy. The initial agreement, drafted by plaintiff, contained nothing as to where repayment was to be made. While in Wichita, Porter had with him two of defendant’s checks with which he attempted, unsuccessfully, to negotiate settlement of the option dispute, or from plaintiff’s viewpoint, to discharge a $25,000 obligation which had already matured for not over $15,000. Arrayed against this is much evidence, which we will not repeat, that the entire transaction was essentially an Oklahoma enterprise and the claim for relief arose out of defendant’s activities in Oklahoma, rather than Kansas. Her acts in Kansas, through her agent, appear to be incidental rather than essential to the whole bit of bargaining. They afforded her nothing in the way of enjoyment of any particular privilege or protection under Kansas law. Quite a different situation was present in Woodring v. Hall, supra. There, jurisdiction over a nonresident was sustained in a suit upon a note which evidenced certain loans made by defendant’s former mother-in-law for the purpose of defraying his expenses at the Kansas University School of Medicine. Weight was given to the fact the law creating the claim for relief was that of Kansas; both parties resided in Kansas when the loans were made; the obligation to repay was to be performed in Kansas in accord with defendant’s written acknowledgment of tire debt in his divorce proceeding; and further, the fact defendant had used the Kansas courts to secure his divorce. Here, defendant violated no Kansas statute, she breached no Kansas contract—about all she really did on her single entry in Kansas was to attempt to compromise or settle a disputed claim which had arisen elsewhere. This type of contact hardly suffices to establish any legitimate interest of the state in providing a forum for trial. Viewing all the circumstances of the case, we conclude the claim sued upon is not sufficiently connected with defendant’s transaction of business within the state to warrant assumption of in personam jurisdiction over her by our courts. As the case has been presented to us, we need make no determination of defendant’s other complaints upon appeal. Accordingly the trial court’s judgment is reversed with directions to set aside the in personam judgment rendered against defendant. Judgment reversed with directions. APPROVED BY THE COURT. Schroeder, J., dissents.

The opinion of the court was delivered by Hatcher, C.: This appeal stems from a controversy over liability for an eye injury incurred while a farm laborer was engaged in applying anhydrous ammonia to the soil with farm equipment. Plaintiff when first employed by defendants operated a farm tractor. In 1963 he relieved a fellow worker in applying anhydrous ammonia for about a week and one-half. During such time he filled the tank approximately thirty times. Again on October 19, 1964, plaintiff was engaged in applying anhydrous ammonia, a fertilizer, by the defendants. He was instructed by the defendant, J. Charles Jaeger, to “be very careful because if the liquid were to escape and you were to breathe any of it it would knock you down.” He was told to stand upwind so that he would not breathe the liquid. The equipment used was a farm tractor with tanks mounted over each front wheel. Such tanks are commonly called “nurse tanks.” In application, anhydrous ammonia is permitted to escape from the nurse tank through a valve in the bottom of the nurse tank into a hose in which there is a second valve at the terminus of the hose. The terminus of the hose is connected to a third valving apparatus located on a fender of the tractor. The third valve is called a nitrolator. It permits flow from the nurse tank to the equipment applying the ammonia to the soil and also permits the operator to regulate the rate of flow. Anhydrous ammonia will not flow from the nurse tank to the soil unless all three valves are opened. The nurse tanks are filled from a mobile storage tank by disconnecting the terminus of the hose from the nitrolator and con necting that end to a valve on the storage tank. In filling the nurse tank, the hose is not disconnected from the nurse tank. The same hose is used in filling the nurse tank and in transmitting ammonia from the nurse tank to the nitrolator. Anhydrous ammonia being gaseous, pressure builds up in the nurse tank and unless that pressure is relieved, the pressure in the storage tank will repel flow from the nurse tank to the storage tank and vice versa. In filling the nurse tank the pressure is relieved by permitting gas to escape into the air or by running it from the top of the nurse tank to the top of the storage tank by means of a pump. At the time of the accident, October 20, 1964, plaintiff was filling the nurse tanks. He completed filling one tank by reducing the pressure of the nurse tank and by forcing the pressure from the nurse tank into the storage tank. He completed the filling of the second nurse tank by permitting the pressure to escape into the air. When the pressure was escaping from the nurse tank, he was ill at ease. The escaping gas made such a noise that it hurt his ears. It was whistling. He could see the escaping gas. He stood away from it because his employer had instructed him to do so when it was so evaporating. When plaintiff had completed filling both nurse tanks, the coupling and valve on the hose connected to the storage tank were coated by frost or ice. He disconnected the hose from the storage tank and carried the terminus of the hose with coupling and valve annexed to the tractor fender upon which the nitrolator was located and laid it there, then got upon the tractor platform in front of the seat. In attempting to fasten the coupling of the hose to the nitrolator, plaintiff dropped the hose. He grabbed the hose in his left hand and the valve handle in his right hand. When he grabbed the valve by his right hand, the valve opened and the ammonia sprayed into his face. Plaintiffs eyes were burned, and he suffered the loss of his left eye. The plaintiff brought an action to recover for his injuries alleging in part: “That . . . the Defendants furnished the Plaintiff with equipment on which to work as their employee, which was a dangerous instrument and on which Defendants failed to properly instruct Plaintiff as to its use; and as a result of the negligence of the Defendants, the equipment on which Plaintiff was working caused fertilizer to spray in the face of the Plaintiff, . . .” Defendants answered alleging assumption of risk and contributory negligence on the part of the plaintiff. The case was tried to the court. It orally announced its findings which we present in part: “. . . I am going to find the accident actually occurred in this manner; that the Plaintiff while handling the hose with the valve on the end of it, in getting ready to connect it, dropped it. This is a heavy hose and a heavy valve and in grabbing for it his hand touched the valve and opened it, . . . “I am going to find that the equipment used in this case was in good shape, was not defective, not substandard in any way. “I am going to find that Plaintiff knew and had been warned that there was danger about the handling of anhydrous ammonia, but I am going to find that he did not comprehend fully just how dangerous it was; that he did not comprehend this danger to the extent that he understood it and was intentionally taking the risk, . . . “I am going to find that in this case that anhydrous ammonia handled under high pressure with the complicated system of valving and hoses and pumps is an extremely dangerous compound; it is highly corrosive, it is used as a commercial solvent; it is a dangerous thing, and in this instance the pressure was such that it’s partially liquid and partially vapor, and I am going to hold that anyone who was using this and having their employees use it is under a duty to investigate, study it and know its properties and the dangers involved in it, and to carefully and specifically warn employees of that, and this is knowledge that the employer either has to have or should have. At least he has a duty to obtain it. For that reason I am going to hold that the employers were negligent in this case. ... I am going to find that all the plaintiff thought could happen to him he would have some ill effects from inhaling it, or he was told to turn his fa,ce because he might inhale it. I don’t think he comprehended this and in boiling it down I am going to say it was negligence in failure to adequately warn and I don’t believe that his dropping the hose constitutes an act that is contributory negligence which would bar his recovery. “The causation factor is this, if he had been adequately warned where he understood how rough this was and how dangerous it was, he would have used a lot more care. I mean moving all these hoses around one could be dropped and if he had dropped it he would have backed away from it rather than grab it. . . .” The trial court directed judgment for the plaintiff in the total amount of $13,500. The defendants have appealed. The appellants contend that the trial court erred in finding that (1) the appellee did not assume the risk involved; (2) the appellee was not guilty of contributory negligence, and (3) the proximate cause of the injury was the negligence of the appellants in failing to give adequate warning. We are forced to disagree with appellants’ contentions. There is really no basic dispute in the facts to which the law is to be applied. The law of assumption of risk and contributory negligence is well established. The dispute in most cases arises over the facts to which the rules of law are to be applied. We will present only in a general way the general principles of law applicable to the more detailed facts which control this controversy. While contributory negligence and assumption of risk are somewhat akin and grow out of closely related facts, the two doctrines of law are not synonymous. Contributory negligence arises from a tort while assumption of risk arises out of an implied contract. Both doctrines require some knowledge of the danger or risk. The doctrine of assumed risk rests upon the expressed or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for the resulting injury. To raise an implied agreement the risk assumed must be known to the employee, or it must be of such nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. It can never be said that one has agreed to assume responsibility for that of which he had no knowledge, or of the existence of which he is not chargeable with notice. The word “risk” in this connection includes more than a knowledge of conditions. It also includes a knowledge, or an opportunity for knowledge, of the peril of the employee arising from the conditions. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86; Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042; Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765; Anderson v. Cooper, 192 Kan. 723, 391 P. 2d 86.) We have defined contributory negligence as conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is the legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm. (Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470.) It is not in every instance where one exposes himself to known danger that he is denied recovery, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence would not subject himself to it. Mere knowledge of the danger of doing a certain act without a full apprehension of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. (Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649; Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482; Shufelberger v. Worden, 189 Kan. 379, 369 P. 2d 382; Webster v. Kansas Power & Light Co., 182 Kan. 626, 629, 323 P. 2d 643.) It is also a well established rule that knowledge of danger, or threatened danger, will not be imputed to a person who fails to look for danger which under the surrounding circumstances he had no reason to apprehend. (Bradley v. Allis Hotel Co., 153 Kan. 166, 109 P. 2d 165; Buck v. Miller Amusement Co., 166 Kan. 205, 200 P. 2d 286.) The burden is on the defendant to establish contributory negligence and whether contributory negligence exists presents a question for the finder of fact. A finding of fact supported by substantial competent evidence will not be disturbed on appeal. These rules are so well established that citation of authorities is not justified. With the above rules in mind we should examine the facts in more detail for the purpose of determining what instructions were given appellee by appellants or what knowledge he had of the risk or danger. The only instructions the appellants appear to have given the appellee regarding the dangers of anhydrous ammonia were that he should keep up wind when filling the tanks and language to the effect that “It’s powerful, it will knock the whaley out of you.” The appellee construed this to mean it would knock him down if he inhaled it. It would appear that the appellants did not know enough about the dangers of anhydrous ammonia to properly instruct the plaintiff, their employee. The appellant, J. Charles Jaeger, who hired and instructed the appellee, testified: “Q. In your opinion you regard yourself as qualified to handle anhydrous ammonia and this type of equipment, did you not? “A. I would say someone more directly knowledgeable in the equipment and the properties of anhydrous ammonia would say 'no you were no[t] at the time, 1964, qualified to operate this equipment’. “Q. Are you qualified now? “A. I feel like with my exposure to this unfortunate accident and information I have had that I have sought since then, I feel like I would be quite qualified to operate it.” The trial court properly concluded that anhydrous ammonia under high pressure was an extremely dangerous compound. In fact, the legislature has seen fit to authorize the State Board of Agriculture to promulgate regulations to insure the handling, storage and transportation of liquid fertilizer with safety. (K. S. A. 2-1212.) An employer placing this dangerous chemical in the possession of an employee for distribution by a complicated apparatus has the duty to inform himself of the danger and risk in order to be able to instruct the employee. The appellee did not know on October 20, 1964, that the fertilizer would burn his eyes. Neither the appellee nor the appellants knew, at the time of the injury, that water was the best antidote for anhydrous ammonia. ' Ammonia is a colorless pungent gas composed of hydrogen and nitrogen. Anhydrous simply means without any water. Anhydrous ammonia is a dry gas. It dehydrates that part of the body which it touches—absorbs the moisture-—hence the burning effect. The best antidote is, therefore, water to replace the dehydration. The State Board of Agriculture, under the authority of K. S. A. 2-1212, has passed regulations for the transportation and handling of liquid fertilizer. Kansas Administrative Regulations, Section 4-10-6 (E) (4), covering systems mounted on farm vehicles for transportation of liquid fertilizers, states: “All vehicles shall carry a can containing five (5) gallons or more of fresh water.” (The rule was the same in 1964 but designated as 4-10-6.5.4.) The mobile tank, from which the nurse tanks were filled, was subject to this regulation. Yet, the undisputed testimony discloses that there was no water at the scene of the operations. Had the appellants known of and observed the regulation and informed the plaintiff as to the use of water as an antidote, the injury might well have been avoided. We do not have here a case of the usual farm injury where the risk assumed is apparent—a cutting knife, blade or disk. We are forced to conclude that the appellee was not sufficiently informed and did not have knowledge of the danger and risk involved in handling and applying anhydrous ammonia, a liquid fertilizer. Neither was he informed, and he did not have knowledge. of the simple antidote in case he made bodily contact. Therefore, the appellee did not assume the risk and was not guilty of contributory negligence. The appellants were negligent in that they did not properly inform themselves and properly instruct the plaintiff as to the danger and risk involved. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Harman, C.: In this damage action arising from a rear-end automobile collision plantiff Tommy C. Atkins appeals from a judgment rendered against him upon an adverse jury verdict. Plaintiff, defendant Robert P. Bayer, defendant’s wife who was his passenger, and an investigating police officer were witnesses at the trial on the liability aspect of the case. Their testimony, viewed as it must be in the light most favorable to the prevailing party in the trial court, revealed the following: West Kellogg street on U. S. Highway 54 in Wichita is a four-lane divided highway with a speed limit of fifty miles per hour. There is an overpass bridge or viaduct where Kellogg goes over Seneca street. Near this viaduct the highway has connecting ramps and additional lanes for both entering and exiting ¡traffic using Seneca street. On July 6, 1966, at approximately 10:05 p. m. the plaintiff was driving a 1960 Corvair automobile west on Kellogg in the right hand lane at a speed of about forty-five miles per hour. There was moderately heavy traffic on the road. As plaintiff approached the east end of the viaduct he noticed a sign directing both northbound and southbound traffic exiting on Seneca street and an overhead sign stating “Rough Road Ahead.” He proceeded west and just beyond the first exit he saw a yellow blinking caution light. About half way between the exit and the entrance ramps he deaccelerated his automobile. He noticed flare pots, then a tree of flags which would block traffic coming up a ramp. Then he saw a barricade. Using his rear-view mirror he noticed cars behind him in both lanes of traffic. He “hit” his brakes and came to a sudden stop ten to twenty feet east of the barricade. He did not pump the brake pedal. East of this barricade another barricade was lying on its side. Evidently there had been some repair work in the area but the record does not reveal where or what kind. Some of the lights and flags referred ,to in the testimony were north of the road upon which plaintiff and defendant were traveling. Defendant was driving a small 1965 Chevrolet van about forty-five miles per hour in a westerly direction behind plaintiff’s vehicle. He became aware of plaintiff’s vehicle when he saw its brake lights come on, at which time defendant was about 125 to 150 feet behind plaintiff’s vehicle. Refore this he had seen nothing to indicate any hazard. He saw traffic in the lane to his left and applied his brakes, making skidmarks fifty-six feet in length prior to hitting the rear end of plaintiff’s auto. Defendant testified ,that immediately after the collision plaintiff stated “he was not aware of any trouble being there until he saw the shadow of this barricade, which he stopped in front of, either in the headlights of his car or the shadow of it from the overhead street lights.” Plaintiff testified he had no room to go around the barricade; the investigating police officer testified plaintiff would have had space to go around the barricade and proceed on west to the next barricade. Some of the flare pots along the highway were not lighted. We have difficulty in' determining from the record on appeal the exact physical situation. Plaintiff’s witnesses used a diagram of the highway in testifying, indicating, without verbal clarification, various positions and locations upon it. This diagram is not reproduced in the record and in some instances the testimony with reference to lights, warning signs, curbs, ramps, and exit and entrance lanes loses much of its meaning and leaves these matters open to conjecture. We should consider, first, plaintiff’s contention the trial court erred in excluding opinion testimony of an expert witness offered by him. The investigating police officer, after being qualified as an expert witness in traffic accident investigation, was asked a long hypothetical question which purportedly called for his opinion as to whether a person in defendant’s position would have seen plaintiff’s automobile in time to stop and avoid the collision. Defendant objected to the form of the question. The trial court sustained the objection, apparently on the basis any answer given would invade the province of the jury in determining the issue of negligence. Our law on expert and other opinion testimony is now codified (K. S. A. Chap. 60, Art. 4, ¶ G.). The part pertinent here provides: “(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” (K. S. A. 60-456 [d].) The question objected to here was put to the witness on the basis he had only to assume the truth of the facts therein stated. It did not require him to pass upon the weight or credibility of disputed evidence and thus in effect usurp the province of the jury. The facts hypothesized fairly well embodied plaintiff’s theory of the case. As such, although a trial court is vested with a wide discretion in receiving opinion evidence (Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395), we think the evidence could well have been received (see 2 Jones on Evidence, 5th ed., §§ 417-418). However, the fact that it was not does not require reversal. One seeking reversal of a judgment because of exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of. We think any error in the exclusion was rendered harmless because o£ other testimony given by the expert witness. The hypothetical question put to the witness necessarily called for his special knowledge as to the distance within which under given conditions a vehicle can be stopped by braking action after the driver has, or should have, become aware of danger. This aspect was within the proper sphere of expert testimony since laymen are not wholly familiar with the reaction time and braking distance normally involved, but that was the only aspect of the question which did call for expertise on the part of the witness. The distance within which defendant here could have stopped his vehicle was one crucial element in the case and plaintiff could well have been prejudiced in its omission. However, later on in his testimony the expert did testify as to reaction time and braking distances at various speeds, giving a formula, and without objection stated his opinion that an average vehicle traveling at forty-five miles per hour would take from 145 to 150 feet to stop. Thus the jury was apprised of the essential information the expert possessed on the issue in question so that it could as well draw any conclusion to be derived therefrom. We cannot say plaintiff suffered prejudice in the ruling complained of. Plaintiff’s other contentions upon appeal may be considered together. They are that the trial court erred in denying his motions for judgment and for directed verdict upon the issue of liability, there was no substantial evidence to support the jury verdict and the jury verdict was contrary to and in disregard of the evidence. Generally his argument is the evidence showed defendant was negligent as a matter of law in being unable to stop his vehicle within the range of his vision at night and further showed as a matter of law that plaintiff was not guilty of contributory negligence. The court did submit to the jury under the ordinary instructions the issues of negligence, contributory negligence and proximate cause. The instructions defined those terms and included correct statements of our law on the general duties of motorists with respect to lookout, following too closely, signaling in the event of stopping or suddenly decreasing speed, control of vehicle and speed. As indicated, the jury returned a general verdict for defendant. Plaintiff’s contentions with respect to the evidence all depend upon whether or not the issues as to liability were properly submitted to the jury. We need not further detail the evidence. It was contradictory in several respects, not all of which we have related inasmuch as the jury’s verdict has now resolved any conflict in defendant’s favor for' the purpose of appellate review. Without attempting any extended analysis of the evidence, we are of opinion it was such as to require submission of the issues of defendant’s negligence and plaintiff’s contributory negligence to the jury. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for that of the jury. On the issue of defendant’s negligence as a proximate cause of the collision the record is very indefinite as to the position of signs or lights which should have given him notice of danger on the portion of the highway he was Raveling, which was a through highway. There was evidence that immediately after the collision plaintiff stated that he himself was not aware of any danger undl he saw the shadow of the barricade in his own headlights or from overhead sReet lights. How much less then was defendant’s opportunity to be aware of danger? What about his failure to stop sooner after seeing plaintiff’s brake lights come on? Prior to this, defendant had no indication of any hazard on his thoroughfare. PlainRff had decreased the speed of his vehicle and then had suddenly stopped, all without previous signal. Defendant’s conduct is to be measured by that of the reasonably careful person under the same or similar circumstances. We think that minds of reasonable men could reach different conclusions in this assessment. Plaintiff would invoke the range of vision rule first broadly stated by this court in Fisher v. O'Brien, 99 Kan. 621, 162 Pac. 317, that it is negligence as a matter of law to drive an automobile at night at such speed that it cannot be stopped within the distance that objects can be seen ahead of it. The rule is not wholly inflexible. Many examples could be cited but one will suffice. The case of Hill v. Hill, 168 Kan. 639, 215 P. 2d 159, involved a rear-end collision in which it was contended the driver of the following vehicle was guilty of negligence as a matter of law. This court in rejecting that contention stated: "Appellant attempts to invoke the rule that a driver of a motor vehicle must so operate his vehicle that he can safely stop within the distance that he can clearly see any other vehicular traffic in the roadway ahead of him. That is a well established rule, but it does not apply to a situation where a sudden emergency arises, as by the sudden application of brakes and sudden stop without warning of another vehicle just ahead.” (p. 641.) On the issue of contributory negligence we think it was also jury work to determine whether plaintiffs conduct contributed to his predicament. Plaintiff’s testimony he had no room to go around the barricade safely was contradicted by the testimony of the investigating officer that he could have done so. Plaintiff was aware of the traffic on the through highway and the appropriateness of any evasive action open to him to avoid collision properly became a jury question. The case is analogous to the situation presented in Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990. In fact we are told the collision in Johnston occurred on the same highway at the same viaduct as the collision here. There the plaintiff’s decedent was apparently confronted with a dog crossing the highway and he suddenly stopped or decreased his speed to avoid hitting the dog with the result he was struck in the rear by the defendant’s vehicle. The trial court directed a verdict for plaintiff on the question of liability. Upon appeal this court reversed, holding that all issues as to liability should have been submitted to the jury. On the issue of contributory negligence on the part of plaintiff’s decedent we stated: “. . . we think it was jury work to determine whether there was any violation by decedent of the duty imposed by K. S. A. 8-547 (c) which provides: “ ‘No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.’” (pp. 529-530.) We discussed the use of mechanical brake signals as authorized by law and held: “K. S. A. 8-547 (c) construed and held to require the giving of an appropriate signal upon stopping or suddenly decreasing the speed of a vehicle, and held further, what constitutes an appropriate signal depends on the necessity for, and the driver’s opportunity to give, an effective warning commensurate with the probable hazards revealed under the circumstances of the particular case.” (Syl. ¶ 4.) We further held it was a jury question to determine whether an appropriate signal was given under the circumstances. The trial court properly submitted the issues as to liability to the jury. There was substantial competent evidence in support of the jury verdict and the judgment based thereon must be and is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by O’Connor, J.: This was an action instituted under the provisions of K. S. A. 60-1110 by O. K. Johnson Electric, Inc., a subcontractor, against Hess-Martin Corporation, Inc., the prime contractor, and its surety to recover for labor and materials furnished in the con struction of the White Lakes Shopping Center in Topeka. White Lakes Development, Inc., the owner of the shopping center, was made a third party defendant, and as a result of an indemnifying agreement with Hess, assumed the defense of the case. From an adverse judgment in the district court, Johnson has appealed. For clarity, the parties will be referred to in the opinion! as Johnson (appellant), Hess and White Lakes (appellees). In the fall of 1963 Hess contracted with White Lakes to build the shopping center. On October 24, 1963, Johnson entered into a cost-plus contract with Hess for the installation of electrical systems in the new center. The subcontract provided in part that Johnson was to be paid all of its “direct cost,” plus 17% of the “direct cost,” not to exceed $51,000. “Direct cost” was defined to include materials, labor and “payroll taxes and insurance, including workmen’s compensation insurance and union fringe benefits. (14% of labor).” The “total direct cost” was to be determined upon completion of the contract and was subject to the approval of Hess and the architect. Under the contract Hess agreed to make periodic payments to Johnson on or before the tenth of each month for all work done in the preceding month. Each monthly payment was to include Johnson’s gross payroll for the month, as well as labor, fringe benefits, payroll taxes and insurance, in support of which Johnson agreed to submit notarized payroll reports. The monthly payment was also to include a portion of the fixed fee due Johnson, computed by allowing a factor of 17% of all direct cost for the preceding month. When a total of 80% of the fixed fee had been paid, no further payments thereon were to be made until the project was completed. Other pertinent portions of the subcontract read: “8. . . . “C. . . . “Upon receipt of written notice that the work is ready for final inspection and acceptance, the Architect shall promptly make an inspection, and when he finds the work acceptable under this Contract and the Contract fully performed he shall promptly issue a final certificate, over his own signature, stating that the work provided for in this Contract has been completed and is accepted by him under the terms and conditions thereof, and that the entire balance found to be due the [sub-] Contractor, and noted in said final certificate, is due and payable. “Before issuance of final certificate the. Sub-Contractor [Johnson] shall submit evidence satisfactory to the Architect that all payrolls, material bills, and other indebtedness connected with the work have been paid. “D. The Contractor [Hess] through his agreement with the owner agrees to pay all material invoices that have been approved by the Contractor and the architect as aforesaid and all applicable sales and use taxes. Said payments shall be made direct and the Sub-Contractor shall be furnished with a non-negotiable copy of each check covering such payments. The Sub-Contractor agrees that it will furnish all material invoices to the Contractor in ample time to take advantage of all cash discounts. “9. The Sub-Contractor agrees to use the utmost diligence in buying material and shall use all leverage of his command to secure the lowest possible prices with good quality. Sub-Contractor agrees to furnish when requested by the Contractor, evidence that the prices paid for, or proposed to be paid for, materials purchased are the lowest reasonably to be expected compared to the current market prices for such materials. “10. The Sub-Contractor agrees to supply all labor that shall be necessary from time to time to meet the Contractor’s work schedule, but that it will not use any labor in excess of the amount necessary to meet said schedule. The Sub-Contractor agrees to comply with any reasonable requests o.f the Contractor regarding the amount of labor used from time to time in the performance of this contract.” (Emphasis added.) The work called for by the subcontract was performed by Johnson over a period of approximately one year. Upon completion of the job, including the corrections required by the architect to make the job satisfactory, Johnson was told by the architect a “certificate of acceptance” had been issued. Thereupon, Johnson submitted its final bill in the amount of $54,391.64. Meanwhile, in January 1965, an audit was made by an accountant of all the billings for “direct cost” submitted by Johnson. The accountant determined that $13,696.23 of the billings constituted excess charges over Johnson s actual expenditures for payroll taxes, insurance, and union benefits. This came about because all of Johnson s billings had included a flat 14% for these items. No question had been raised on any of the billings previous to that time. After the audit Johnson, for the first time, realized that Hess and White Lakes were placing a different interpretation on the “14% of labor” clause in the contract. Finally, on March 30, 1965, Johnson was paid,.and accepted, the sum of $39,750 without prejudice to any of the parties concerning the balance of its claim in the amount of $14,641.64. This lawsuit was filed August 20, 1965. Johnson’s claim was stated in two parts. The first was for interest on various payments under the contract which were made later than the tenth of the month. Judgment was entered in favor of Johnson in the amount of $2,664.41 for the interest item, and no appeal has been taken from that portion of the judgment. Johnson also claimed the $14,641.64 balance alleged to be due under the contract. Against this the appellees, Hess and White Lakes, asserted two defenses. A partial defense was that the “14% of labor” clause in the contract was ambiguous, and that Johnson was entitled only to actual taxes, insurance, and union fringe benefits instead of an arbitrary 14% of labor, which he had already been paid—a difference of $13,696.23. As to this defense, the trial court found that the contract was not ambiguous and that its express terms were controlling, regardless of the actual amount expended for these items. Appellees have not appealed from this ruling, and it is no longer an issue in the case. The second defense, and the one with which we are concerned in this appeal, was that Johnson’s “total direct cost” had not been approved by Hess or the architect, as required by the contract, and that such refusal was justified because Johnson had used labor in excess of that necessary in performing the job. The case was tried to the court without a jury. Mr. Johnson, in his testimony, acknowledged that from time to time he had received complaints from representatives of Hess and White Lakes about the electricians “loafing on the job.” There were also some labor difficulties which resulted in work stoppages. Johnson testified about the problems incurred when he added or took off men at the request of the general contractor, but that he attempted to comply with all demands. Normally there were about 35 or 40 electricians working, but at one time there were nearly 90 on the job. He stated that generally production per man decreases as more men are put on the job. In response to complaints that some men were observed not working, Johnson explained that under union rules there must be one nonworking foreman for every four to eight electricians. The appellees presented evidence that Hess refused to approve Johnson’s claim for labor because the electrical end of the job did not progress as it should, and on parts of the job Johnson was using excess labor; that loafing by the electricians had been observed; and that Mr. Johnson had admitted his electricians had not been operating at full efficiency. The architect, likewise, did not approve the claim for basically the same reasons as given by Hess. In the architect’s opinion, Johnson had used over 10% more labor on the job than was necessary. There was other testimony corroborating that of loafing and inefficiency on the part of Johnson’s employees, including statements to appellees’ representatives by Mr. Johnson that his labor efficiency was 20% to 30% less than normal, and because of this the electrical subcontract had cost an additional 20% to 25%. After noting the provisions of paragraph 10 of the subcontract relating to excess labor, the district court found: “11. During the course of the construction, a controversy arose several times in regard to the quantity of work performed by plaintiff’s workmen. In addition, more workmen were hired by plaintiff at the request of Hess Construction Co., Inc. in order to escalate the work under the prime contract. However, no formal action, other than several complaints, was taken by Hess Construction Company, Inc., in regard to the quantity of work performed by plaintiff’s workmen, and plaintiff attempted to comply with all requests, in regard to quality and quantity of work, made by Hess Construction Co., Inc. “13. The total direct cost incurred under said subcontract was not approved by Hess Construction Company, Inc., or the architects.” In its conclusions of law the court stated: “3. The parties agreed under . . . the subcontract the total direct cost was subject to the approval of the contractor and the architects. This is binding upon the parties, unless it be shown there was fraud, bad faith or gross mistake in failure to approve said direct cost. The burden of proof is upon the plaintiff to establish this fact. It failed to do so. “4. The Court finds plaintiff should take nothing upon his claim for work and labor done in the amount of $14,641.64, and judgment is hereby entered for defendants.” The nub of this case at trial centered on whether or not Johnson used excess labor in completing the job. This was an issue of fact, as shown in the pretrial order. No controversy existed about the work done by Johnson being acceptable or the job being completed according to plans and specifications. Appellees sought to prove by their evidence that excess labor was used, and for that reason Hess and the architect refused to approve “total direct cost” as required by the subcontract. The finality of their refusal constitutes the crux of the appeal. Appellees urge the trial court’s conclusion of law No. 3 must be upheld because under the terms of the subcontract the decision of the contractor and architect to withhold approval was binding, and Johnson did not establish any grounds for impeaching their decision. Johnson, on the other hand, challenges the trial court’s conclusion on the basis the contract does not contain the requisite plain and express language to make the decision of the contractor and architect regarding “total direct cost” final and conclusive, therefore, the principle of law upon which the trial court decided the case was inapplicable. We believe Johnson’s contention is sound, and reversal of the judgment is necessary. In building and construction contracts the parties frequently agree that the finding of an architect or other designated person in respect to quantity and character of work done shall be conclusive, in which case it can only be impeached upon the ground of fraud, gross mistake, bad faith, undue influence, or some other good cause. (Neale Construction Co. v. Topeka Toumship Sewer District No. 1, 178 Kan. 359, 285 P. 2d 1086; Wilson v. Drainage District, 113 Kan. 82, 213 Pac. 635; State v. Construction Co., 91 Kan. 74, 136 Pac. 905; Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520; Board of Education v. Shaw, 15 Kan. 33.) But the decision of the person designated on matters entrusted to him is deemed final and conclusive only where it appears from express terms of the contract, or from plain language therein, that the parties intended his decision have that effect. (Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. Ed. 811, 27 S. Ct. 535; Wilson v. Drainage District, supra; State v. Construction Co., supra; Flour Mills of America, Inc. v. American Steel Bldg. Co. (Okla.), 449 P. 2d 861; Delhi Pipeline Corporation v. Lewis, Inc. (Tex.), 408 S. W. 2d 295; 13 Am. Jur. 2d, Building, Etc. Contracts § 34; 17A C. J. S., Contracts § 498 [8a]; Annos. 54 A. L. R. 1255, 110 A. L. R. 137; 3A Corbin on Contracts § 652.) This court, in Wilson v. Drainage District, supra, was confronted with the following language in a contract for the construction of a ditch: “ ‘The engineer shall in all cases determine the quantities of the several kinds of work to be paid for under this contract, and he shall decide all questions as to lines, levels, etc.’” (p. 83.) At the trial of the case the district court directed a verdict for the plaintiff-contractor at the Conclusion of all the evidence. There was testimony by two of defendant’s witnesses that they had made measurements and calculated the amount of earth necessarily removed, which was substantially less than the engineer’s estimate upon which plaintiff’s claim was based. This court ordered a new trial, stating the witnesses’ testimony was sufficient to entitle the defendant to go to the jury upon the question of the quantity of earth excavated, inasmuch as the contract did not by express provision or plain language indicate an intention that the engineer’s decision on the matter was final and conclusive. Halvorson v. Blue Mt. Prune Growers Co-op., 188 Ore. 661, 214 P. 2d 986, speaks in a similar vein. There, the terms of a contract authorized the architect to compute the proper value of alterations or changes in the work in the event that the parties could not agree upon such value, and to determine the amounts to be deducted from the contract price for defective work. The court said: “. . . As to these matters, his authority, under the contract, was to ascertain certain facts, and not to determine ultimate legal liability. An agreement giving that type of authority to an architect is to be classified as a limited arbitration agreement or limited appraisal agreement . . . The decisions of the architect under a limited arbitration agreement are not conclusive, unless the parties, in plain and unequivocal language, have made them so, which, as we have said, they have not done in the present instance. . . .” (p. 673.) Nonetheless, just as in this case, the contention was also advanced that provisions of the contract had the effect of making the architect “the sole judge and arbiter,” whose decisions were binding in the absence of fraud or mistake, but this argument was similarly rejected. Appellees seek to sustain their position by relying on several cases where the decision of the architect as to certain matters was held to be binding on the parties, even though the contract did not specifically provide the decision would be final. (See, State v. Construction Co., supra, and Board of Education v. Shaw, supra.) We think the cases are readily distinguishable because, unlike here, the plain language of the contract in each instance clearly manifested the intention of the parties that finality was contemplated. The “subject to approval” clause now under consideration lacks plain and unequivocal language indicating a binding, conclusive effect was to be given any decision rendered by Hess and the architect. Although we are not called on to determine the conclusiveness of the architect’s certificate of completion and acceptability under paragraph 8 C of the subcontract, we are by way of contrast impressed by the strength of the language there used indicating a clear intention by the parties that his decision (as sole arbiter) be regarded with an aura of finality. Likewise, we find no express language conferring on the persons designated the broad power to decide all questions which may arise in regard to the fulfillment of the contract such as in Neale Construction Co. v. Topeka Township Sewer District No. 1, supra. The provision here limited the authorized action of the contractor and architect to the approval of “total direct cost,” which was defined in paragraph 3 of the contract as including labor, material, and other items not here important. Even if their decision concerning the approval or disapproval of “total direct cost” could be considered final and conclusive, we have grave doubt that the “subject to approval” clause found in paragraph 2 of the contract contemplated the giving of the broad authority suggested for the contractor and architect to pass on any question relating to excess labor under paragraph 10. The “excess labor” provision contains no specific language to the effect that any issue of excess labor is to be determined by or is “subject to approval” of Hess and the architect in relation to their approval of “total direct cost.” While in the exercise of their limited authority they may have discovered facts which in their opinions would substantiate a defense of excess labor, they lacked authority to make the ultimate legal determination of liability arising from that phase of the contract. The decision of the architect, or other designated person, cannot be considered binding and conclusive when it concerns a matter not contemplated by the contract. In other words, the subject matter which the third person is empowered to decide is limited by the terms of the contract. (Shine v. Hagemeister Realty Co., 169 Wis. 343, 172 N. W. 750; Gerisch v. Herold, 82 N. J. L. 605, 83 Atl. 892; Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242.) A further indication that the parties themselves never intended the decision of the contractor and architect to be final and conclusive is that “total direct cost” was to be approved by two designated persons, one of whom was a party to the contract. Had Hess and the architect disagreed between themselves on whether to approve or disapprove “total direct cost,” an impasse would have resulted. The possibility of such a result demonstrates the parties did not contemplate that any decision of Hess and the architect be taken as correct and binding. This is not the ordinary situation where in clear and unequivocal language a designated third person or group of persons is constituted the “sole arbiter” of specified matters or disputes arising out of a contract, and whose decision is deemed conclusive in the absence of proof of fraud, gross mistake, or other good cause. For Hess to now maintain it occupied the role of an arbitrator under the terms of this contract is difficult for us to comprehend. The ‘subject to approval” clause was undoubtedly inserted to insure that labor actually performed by Johnson and its employees went into the job and was in accordance with the plans and specifications. Although the architect was obviously in the best position to make this determination, nevertheless any decision by him was also subject to Hess’ approval. The subcontract required Johnson to submit notarized payroll reports in order to receive monthly payments from Hess. In addition, Johnson was to submit satisfactory evidence that all payrolls, material bills, and other indebtedness connected with the work had been paid before the architect issued his final certificate. Regardless of what action the architect took in respect to labor costs, Hess could still raise a question of excess labor and refuse payment, in which case its decision would bear no greater finality than that of any other party to the contract. For the reasons discussed, we conclude that Hess’ refusal to approve Johnson’s direct cost, as well as the refusal of the architect, is entitled to no more weight than the refusal of a party to pay according to the terms of a contract because the other party has breached a particular provision thereof. For disposition of this case Johnson urges that it is entitled to judgment because finding No. 11 by the trial court resolved the question of excess labor in Johnson’s favor. We cannot agree. The finding, in our opinion, is vague and inconclusive; the issue remains undetermined. Since the trial court erroneously decided the case on the theory that the decision of Hess and the architect was binding and had not been impeached, a new trial must be had on the issue of excess labor. Accordingly, the judgment of the district court is reversed with directions to grant a new trial.

The opinion of the court was delivered by Fatzer, J.: This action was filed by the appellants to enjoin the Board of County Commissioners of Marion County from establishing Hospital District No. 1, Marion County, pursuant to the Hospital District Act (K. S. A. 80-2178 et seq., as amended). As the provisions of the Act were interpreted by the appellants, they were entitled to judgment holding the statute unconstitutional for the reasons alleged in their amended petition; as interpreted by the appellees, such a decree was not authorized. The district court agreed with the appellee’s construction of the statute, and the plaintiffs have appealed. The appellees have cross-appealed from the district court’s order denying their motion to dismiss the action upon the ground the plaintiffs were not proper parties and lacked legal capacity to maintain the action. The parties will be referred to as they appeared in the district court. The pertinent facts and proceedings are summarized. On February 26,1968, and pursuant to K. S. A. 1967 Supp. 80-2180, petitions were filed with the Board of County Commissioners setting forth the boundaries and requesting the formation of Hospital District No. 1, Marion County. The petitions were signed by not less than 51 percent of the qualified electors of said proposed district who reside outside the limits of incorporated cities of the second class, and by not less than 51 percent of the qualified electors who reside within the corporate limits of cities of the second class within said proposed district. On March 4, 1968, the plaintiffs, John DeForest and Charles K. DeForest, commenced this action in the district court pursuant to K. S. A. 60-907, and alleged they represented the taxpayers in the proposed hospital district and that they brought the action on their own behalf and on behalf of all other persons similarly situated. They alleged the defendant Board of County Commissioners had threatened to and was about to establish a hospital district in Marion County, the boundaries of which were shown by an attached map; that the defendant board claimed authority to establish said hospital district pursuant to 80-2178 et seq., as amended, and that tire said board had violated or would violate the plaintiffs’ constitutional rights if such hospital district was es tablished for the reasons (1) the Hospital District Act unlawfully permits the taking of property arbitrarily and without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States; (2) that the Act and particularly Section 80-2180, as amended, unlawfully delegates legislative power to private individuals and to the defendant board in violation of Art. 2, Sec. 1, of the Constitution of Kansas; (3) that the Act permits the defendant board to establish corporate power in violation of Art. 2, Sec. 17 of the Constitution of Kansas, and (4) that the Act contains provisions which are ambiguous, arbitrary, capricious and unreasonable. The prayer was that the defendant board be enjoined from violating the plaintiffs’ constitutional rights and from proceeding under the Hospital District Act. On the same day, March 4, 1968, a hearing was held before the judges of the Eighth Judicial District sitting en banc, at Junction City, upon the plaintiffs’ application to temporarily restrain the defendant board from acting upon the petitions to establish a hospital district. The temporary restraining order was denied. Later that same day, and at approximately 4:00 p. m., the Board of County Commissioners convened in Marion County, and pursuant to 80-2180 of the Act, as amended, considered the sufficiency of said petitions and found them to be regular and in due form as provided in the statute, and entered its order establishing said hospital district. The order declared the territory described in the petitions to constitute a public corporation and the inhabitants within such bounds to be incorporated as Hospital District No. 1, Marion County. On May 23, 1968, the district court heard three motions. The first motion was filed by the defendants for judgment on the pleadings, which was overruled. The second motion, also filed by the defendants, sought dismissal of the action for the reason Hospital District No. 1 was established March 4, 1968, and the issues raised in the action were moot; further, that the plaintiffs’ petition failed to state a cause of action or claim for relief because they were not proper parties to bring the action and were without legal capacity to maintain the same. The motion was overruled, and, as indicated, the Board of County Commissioners perfected their cross-appeal from that order. The third motion was filed by the plaintiffs and sought to amend their petition to include the Board of Directors of Hospital District No. 1, elected May 3, 1968, and the county clerk of Marion County, as additional parties defendant, which motion was sustained. Subsequently, and in accordance with the foregoing order, the plaintiffs filed their amended petition and made service upon all parties defendant to the action. The amended petition alleged the named plaintiffs represented the taxpayers in Hospital District No. 1, and that they brought the action on their own hehalf and on behalf of all other persons in the hospital district similarly situated; that on March 4, 1968, the Board of County Commissioners of Marion County entered its order establishing and organizing Hospital District No. 1; that on May 3, 1968, the hospital district held its first annual meeting and elected five citizens to fill the positions as directors of said district; that the hospital district board was authorized to determine and fix an annual tax to be levied and to certify such rate of levy to the county clerk, and of the county clerk’s duty to extend such rate of levy upon the taxable tangible property in the district for the purposes stated in the Act; that the defendants claim authority to establish, maintain, operate, levy and collect taxes pursuant to K. S. A. 80-2178 et seq., as amended, and have violated or will violate the plaintiffs’ constitutional rights in the manner and for the same reasons as alleged in the original petition. It was not alleged the defendants failed to comply with any procedural requirements of the Act, nor were there any allegations of fraud on their part, or of conduct so oppressive, arbitrary or capricious as to amount to fraud. The prayer was that the court determine the Hospital District Act to be unconstitutional and enjoin the defendants and all of them from violating the plaintiffs’ constitutional rights and from proceeding under the Hospital District Act, further, that the county clerk be enjoined and precluded from collecting any tax from the plaintiffs based on said Act. Issues were formed by the parties’ pleadings, and on July 9, 1968, the case was tried to the district court sitting en banc at Marion, upon the parties’ stipulation of facts. The district court made findings of fact and concluded the plaintiffs were proper parties to bring the action since they owned real estate within the designated hospital district which was subject to taxation for the support of said district. It further concluded that K. S. A. 80-2178 et seq., as amended, did not unconstitutionally delegate legislative authority and the Hospital District Act did not violate Art. 2, Sec. 1, of the Kansas Constitution and did not violate the due process clause of the Constitution of the United States, and was not ambiguous, arbitrary, capricious or unreasonable, and did not violate Art. 2, Sec. 17 of the Constitution of Kansas. Based upon its conclusions of law, the court denied the injunctive relief prayed for. Thereafter, both parties duly appealed to this court; the plaintiffs from the court’s judgment that Hospital District No. 1, Marion County, was constitutionally organized under the Constitution of Kansas and the Constitution of the United States, and the defendants from the court’s order adjudging the plaintiffs’ petition stated a cause of action or claim for relief, and that they were proper parties and had legal capacity to maintain the action. As the issues are here presented, the only question necessary to be decided is whether the plaintiffs were proper parties to attack the legality of the organization of the hospital district. For reasons hereafter stated, we conclude they were not. As indicated, the district court concluded the plaintiffs were proper parties to bring the action since they owned real estate within the hospital district which was subject to taxation for the support of the hospital. However, the plaintiffs’ action was filed pursuant to K. S. A. 60-907 and their original and amended petitions directly attacked the constitutionality of 80-2178 et seq. as amended, under which Hospital District No. 1 was organized. There were no allegations of fraud on the part of the defendants, or of conduct on their part which was so oppressive, arbitrary or capricious as to amount to fraud, nor was it alleged that any tax levied by the district was unlawful in any manner, and, as the district court’s memorandum decision states, the sole question presented by the action was "the constitutionality of Section 80-2178 of the Kansas Statutes, Annotated.” Section 60-907 is the successor to G. S. 1949, 60-1121, and its provisions follow those of the latter statute except they have been paragraphed for clarity and somewhat condensed and simplified, but no change of procedure or substance was intended. (Schulenberg v. City of Reading, 196 Kan. 43, 48 P. 2d 324.) The statute grants to individuals the right of injunctive relief to enjoin the illegal levy of any tax, charge or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from doing any act not authorized by law that may result in the creation of an additional levy of a tax, charge or assessment, and authorizes any number of persons whose property is or may be affected, or whose taxes may be increased, to join in the petition for injunction. Our decisions which have construed the provisions of G. S. 1949, 60-1121, authorize individual taxpayers to make direct attacks on illegal levies, but limit the actions to those which admit corporate existence of the taxing district or municipality which levied the taxes. The point was fully covered in Bishop v. Sewer District No. 1, 184 Kan. 376, 336 P. 2d 815. There, individual taxpapers sought an injunction to enjoin the sewer district and its officers from levying a proposed tax on their property, and, as here, they directly attacked the constitutionality of G. S. 1957 Supp., 19-2787 et seq. under which the sewer district was organized. It was held: “An action questioning the validity of the proceedings of a board of county commissioners in incorporating a sewer district under the provisions of G. S. 1957 Supp., 19-2787 et seq. cannot be maintained by a private individual. Such an action can only be prosecuted at the instance of the state through its proper officers. “The provisions of G. S. 1949, 60-1121 do not grant to private individuals as taxpayers, or otherwise, the right to maintain an action challenging the legality of the organization of a quasi-municipal corporation or the modification of its boundaries.” (Syl. ¶¶ 1, 2.) and in the opinion it was said: “It has long been the established rule in this jurisdiction, as elsewhere, that the legality of the organization or reorganization of a municipal corporation cannot be questioned in a collateral proceeding or at the suit of a private party. Actions to inquire into the validity of proceedings creating a municipal corporation or affecting the existence of the corporation may be prosecuted only in a direct proceeding by the state acting through its proper public officers. (Citations.)” (l. c. 379.) * * * “Undoubtedly, 60-1121 grants individuals the right to enjoin the levy or collection of illegal taxes, or to enjoin illegal acts which may result in the creation of any public burden or the levy of any illegal tax. It is clear that 60-1121 is limited to attacks which admit the fact of corporate organization and does not grant private individuals the right to attack the existence or organization of the municipal corporation whose acts are directly challenged. Provisions substantially similar to 60-1121 are found in the Kansas statutes as long ago as G. S. 1868, Ch. 80, § 253. With these provisions on the books our decisions have been uniform in denying taxpayers the right to question the legality of the organization of municipal corporations in actions brought to enjoin the levy or collection of taxes. (Citations.)” (l. c. 380.) * * * “In view of the foregoing, we are of the opinion that plaintiffs were without legal capacity to attack the legality or regularity of the organization of the sewer district . . . “Plaintiffs were also barred from challenging the constitutionality of G. S. 1957 Supp., 19-2787 et seq. for the same reason. It is clear that a challenge to the constitutionality of the basic law by which a municipal corporation is organized is an attack on the legality of the organization of the district which, as has been demonstrated, is beyond the capacity of an individual litigant to challenge . . .” (l. c. 381.) (Emphasis supplied.) This court has construed the provisions of 60-907 to the same effect as it previously construed the provisions of G. S. 1949, 60-1121, that an individual taxpayer may avail himself of the injunctive remedy to question the right to levy or enforce a tax because of some lack of valid legislative authority, or unlawful acts under a valid statute, or because action under a valid statute is so arbitrary, capricious, unreasonable and subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power, but he cannot use it to test the existence or organization of a political subdivision or municipality either de jure or de facto which is functioning as a corporate entity. It was specifically held in Schulenberg v. City of Reading, supra, that 60-907 does not grant individual taxpayers the right to question the legality of corporate existence of political subdivisions or municipal corporations in actions brought to enjoin the levy or collection of taxes. See, also, Babcock v. City of Kansas City, 197 Kan. 610, 612, 419 P. 2d 882; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982, Syl. ¶ 10; Mullins v. City of El Dorado, 200 Kan. 336, 340, 436 P. 2d 837, Syl. ¶ 1; Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5, Syl. ¶ 3. Upon the establishment of the hospital district, the territory and the inhabitants residing therein and their successors constituted a body politic under the corporate name of Hospital District No. 1, Marion County. (80-2178 et seq., as amended.) In a legal sense, the hospital district was a political subdivision or quasi-municipality and had the right to sue and be sued, enter into contracts, adopt budgets, levy taxes, and exercise many other powers with respect to the construction, maintenance and operation of a public hospital. In substance, the amended petition alleged the district was a functioning corporate entity, and its corporate existence was not subject to attack by the plaintiffs under 60-907 and their attempt to challenge the constitutionality of the basic law by which the district was organized may not be maintained. (Bishop v. Sewer District No. 1, supra; Schulenberg v. City of Reading, supra.) Such an action must be prosecuted by the state acting through its proper officers. (Babcock v. City of Kansas City, supra.) Other points have been raised by the parties, but in view of what has been said and held, it is unnecessary to discuss and decide them. The judgment of the district court is reversed as to the appellees’ cross-appeal with directions to dismiss the action. It is so ordered. Fontron, J., dissents.

The opinion of the court was delivered by Fromme, J.: The appellant, James L. Aldridge, was convicted by a jury and sentenced for second degree burglary (K. S. A. 21-520) and larceny in connection therewith (K. S. A. 21-524) as an habitual criminal (K. S. A. 21-107a). On direct appeal he now seeks to have the sentence set aside because of alleged trial errors. All errors specified on appeal relate to the admission of evidence and may be compressed into two categories, those which relate to the pre-trial identification and those which relate to the cross-examination of the appellant. Although appellant does not contend his conviction was based upon insufficient evidence a summary of the evidence is necessary to understand the questions presented. The Huffman Grocery Store in Lane, Kansas, was burglarized the evening of April 5, 1968. The town of Lane is located in a rural community with a population of 300. Mr. Huffman closed and locked his store at 6:00 o’clock p. m., his usual closing time. At 9:00 p. m. Mr. Willey, a local townsman, was walking past the Huffman store building when he heard something fall inside the building. The inside of the building was illuminated by a light burning in the store and by a street light close to the front of the building. Mr. Willey looked inside and saw a stranger standing beside a bread display rack. He continued to watch this man as he walked along in front of the Huffman store. As Mr. Willey approached the far comer of the building the stranger noticed him and fell to the floor. Mr. Willey ran and notified the Huffman family. They called the sheriff and notified him there was a burglary in progress. In response to the sheriff’s radio communications law enforcement officers from all four surrounding counties converged on the town of Lane. As one of the officers approached the town he came upon a pickup truck travelling north and bearing a Missouri license. It was going away from the town of Lane. The officer stopped the truck at 9:15 p. m. two and a half miles north of the town. Marvin G. Brown was riding in the truck which was owned and driven by the appellant. Shortly thereafter other law enforcement officers arrived. The appellant and Brown were given the full “Miranda” warning of their constitutional rights and they were searched. Small coins totalling $9.55 were taken from the pockets of the appellant. The appellant’s companion had $16.85 in small coins on his person. Three packages of “Rolaids” were removed from the glove compartment of the truck. One of the officers who had been making an investigation of the burglary at the Huffman Grocery Store brought Mr. Willey to where the suspects were being held in the country. Mr. Willey there identified Marvin G. Brown as the man he had surprised in the grocery store one hour earlier. A further investigation revealed that the store had been entered by prying open a back window. Fourteen boxes of groceries had been removed from the grocery shelves. Ten boxes were found by the back door which led into the alley. Four boxes were found in the alley near a gas meter. A coin operated “pop” machine was broken open and coins were missing. A carton of “Rolaids” in the store had been opened and some of the packages had been removed. Footprints were discovered in the alley. They led through an area of tall grass, down a railroad right-of-way and to a field driveway. Two distinct paths were visible in the tall grass which was wet from a heavy dew. Pickup tire tracks were apparent in the mud of the driveway where the footprints ended. Plaster casts of these tire tracks matched the tread on the tires of appellant’s truck. The packages of “Rolaids” taken from appellant’s truck bore special identification similar to those which remained in the broken carton in the Huffman store. During the trial counsel for appellant strenuously objected to evidence of the pre-trial identification of Marvin G. Brown which tended to fink the appellant to the burglary by association. Appellant specifies it was error to permit Mr. Willey to testify that he identified Marvin G. Brown as the stranger he observed in the Huffman store the night of the burglary. His testimony at the trial was that he identified Brown with the burglary when he saw the appellant and Brown in handcuffs standing beside the pickup along the highway north of Lane, Kansas. Appellant contends this pre-trial identification constituted an illegal “line-up” in violation of his constitutional rights as set forth in United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 and State v. Sanders, 202 Kan. 551, 451 P. 2d 148. We believe the appellant misconstrues and misapplies what was said in Wade, Gilbert and Sanders. The constitutional rights sought to be protected in Wade and Gilbert were not violated in the present case. In Wade and Gilbert the high court was concerned with the accused’s rights to counsel under the Sixth Amendment. In each of those cases the accused was under indictment for a crime and was represented by counsel. The accused in each of those cases was required to participate in a stationhouse lineup without notice to his counsel. At trials which followed in-court identification of the defendants was made by the witnesses. The records on appeal did not disclose the manner or the source of information used by the witnesses to make the identifications. The cases cited are readily distinguishable from the present case. Appellant was not required to appear in a stationhouse lineup. He was not the person identified by the witness prior to trial and he was not identified in court by the witness. Appellant was not represented by counsel when the pre-trial identification of Brown occurred. Both were advised of their rights to counsel under the Miranda guidelines. Neither of them requested that counsel be present. Circumstances dictated that they be confronted by the witness as quickly as possible. If they were innocent of the crime they could expect an immediate vindication by this witness and they would be sent on their way. Counsel for appellant further attacks the circumstances under which the pre-trial identification was made independently of the “right to counsel” claim in Wade and Gilbert. He objects to his indirect identification with the crime, which followed when he was found in the company of Marvin G. Brown fifteen or twenty minutes after the crime was committed. We find nothing in the record to indicate the method and manner of Browns identification were unduly suggestive. Under the totality of the circumstances of this case the confrontation with the lone eyewitness was rationally conducted by the law enforcement officers. It was arranged within an hour after the witness had viewed the burglar. The appellant and Brown if innocent of the crime were as vitally interested in obtaining a confrontation with the witness as were the police. There was nothing required of the appellant or Brown which was suggestive or conducive to causing the witness to mistake the identity of the man he watched in the Huffman store. The presence of counsel at this time and place would not have assisted counsel in the fact-finding process at trial. Evidence of the identification of an associate and the presence of that associate at the place of the burglary is relevant evidence. (State v. Hoerr, 88 Kan. 573, 129 Pac. 153.) Appellant testified that Marvin G. Brown was riding in his pickup truck when he was stopped by the officers. He further testified that Brown was a hitchhiker to whom he had given a lift. The verdict indicated the jury did not accept this explanation of their acquaintanceship. We find no error in the pre-trial identification of Brown or in the testimony connecting appellant with the crime. One final contention by appellant should be mentioned. It relates to the extent of the cross-examination of the appellant. Appellant testified he left Kansas City at 4:00 p. m., drove to the “Country Inn” in Topeka, at 8:00 p. m., he left Topeka and headed for Osawatomie by way of Lawrence. He wanted to see his mother. He took a wrong road south of Rantoul. He picked up the hitchhiker, Brown, and was retracing his route north toward the “John Brown Highway” when he was arrested by the officers. Brown was a stranger to him. On cross-examination appellant testified over the objection of his counsel that at the time he was arrested his shoes were wet but his trousers were not wet. On rebuttal for the state an arresting officer testified that the appellant’s shoes and trousers were wet up to his knees at the time of his arrest. In view of prior evidence introduced by the state concerning the heavy dew and the footprints in the tall grass, the question was relevant. This evidence was proper since appellant’s testimony placed him in his pickup from 4:00 p. m. until his arrest, except for his visit to the “Country Inn” in Topeka. When the defendant in a criminal case takes the stand as a witness his integrity as a witness is subject to scrutiny and he cannot complain because he is subjected to the same inquiries and tests as other witnesses. (State v. Jackson, 201 Kan. 795, 443 P. 2d 279; State v. Schroeder, 201 Kan. 811, 820, 443 P. 2d 284.) Generally speaking, the extent to which cross-examination of a witness may be allowed rests largely in the judicial discretion of the trial judge and his ruling will not be disturbed unless an abuse of discretion is made to appear. (State v. Pierson, 202 Kan. 297, 302, 448 P. 2d 30.) There is nothing to indicate the trial judge abused his discretion in this case and the appellant’s contentions cannot be sustained. The judgment and sentence are affirmed.

The opinion of the court was delivered by O’Connor, J.: Thomas Lynch (defendant) has appealed from a $12,500 judgment entered on a jury verdict in favor of Harry Duckers (plaintiff) for personal injuries Duckers sustained as the result of a fall on November 16,1964, while a social guest in Lynch’s home. Although several points are raised, the pivotal question which disposes of the appeal is whether the trial court erred in failing to sustain defendant’s motion for directed verdict based on the insufficiency of evidence to establish liability on the part of defendant. The fall climaxed a day of social activity which commenced with Duckers attending a Saturday afternoon football game at K. U., followed by a seven o’clock dinner party, in company with his wife, at the home of friends. The guests remained after dinner for quite some time and, with a bartender attending to their libational needs, spent the ensuing hours conversing, and singing songs. During the evening one of the Duckers’ sons came and asked to use the car, and Mrs. Duckers left the party with him. Duckers, however, re mained at tibe party until after midnight, when he left with his neighbors, Dr. and Mrs. Paul Carpenter. After the trio got into the Carpenter automobile one of them suggested, “Let’s go by and talk football with Tom,” and they drove to Lynch’s house. Duckers, Lynch and Carpenter had been good friends for several years and thought nothing of dropping in, on occasion, at one another’s home late at night. Upon the group’s arriving at the Lynch residence, Dr. Carpenter knocked on the door. When the Lynches answered the knock at the- door their appearance strongly suggested they had already retired, but they invited the three to come in. The hosts and their guests then walked through the living room and along a hallway to a combination kitchen-family room at the back of the house where they all sat down at a large, round table and began to chat. Lynch inquired, “Would you all care for a drink?” and his guests replied, “That would be fine.” While Lynch was mixing the drinks, and the others were engaging in conversation, Duckers, without saying anything to or asldng direction of anyone, got up from the table to go to the bathroom. He thought he knew where the bathroom was, having been in Lynch’s home and having been to that particular bathroom before. The door to the bathroom was identical to the door to the basement. Both were side by side (about one foot apart) on the north wall of the hallway between the kitchen and living room. The hallway was described as being about three feet in width and relatively short, without doors at either end. The bathroom door opened out into the hallway; the other, into the stairway down to the basement. Both doors were closed, but neither was hooked or locked, nor was there a light burning in either the bathroom or the basement. Duckers walked from the table, down the hallway— a distance of about twenty-two feet—past the bathroom door, turned the knob of the other door, and stepped into what he discovered too late was the stairway to the basement. Although there was no light in the hallway, the area was sufficiently illuminated from lights in the living room and the kitchen so that Duckers was able to see the door he actually opened. The stairs were wooden, steep, and dark, and descended five steps to a landing, then turned and descended seven more steps to the concrete basement floor. There were no handholds or railings, and no side wall. Duckers hung on to the doorknob with his left hand, having lost his right arm in a farm accident years ago, and as the door swung around it “bounced him off” and he landed on his feet on the landing, then went over backwards and landed on his feet at the bottom on the concrete floor, breaking his hip. As a result he was hospitalized for thirty days, incurred substantial medical expense, and was unable to return to his job as county agricultural agent until February 1965, and then only on crutches. About six or eight months prior to Duckers’ experience Mrs. Breitenstein, a neighbor of the Lynches, had fallen down the same basement stairs when she, too, attempted to go to the bathroom and opened the wrong door. Luckily she was able to break her fall by grabbing the “doorknobs” with both hands and was not injured. After Mrs. Breitenstein’s fall Mr. and Mrs. Lynch talked about putting up handrails on the basement stairs or seeing if there was “some form of a light or something to put there to distinguish the doors.” Nothing, however, was done with respect to carrying out these ideas. There also had been several other occasions when meter readers and another neighbor had started through the wrong door. At the conclusion of plaintiff’s evidence defendant offered no evidence but moved for a directed verdict, which was overruled. The motion was later renewed in post-trial proceedings and was again denied. The case was submitted to the jury under instructions to the effect that plaintiff’s status as a social guest was that of a licensee, and the only duty owed by defendant was to refrain from “wantonly or recklessly” injuring him. Both parties concede that the duty owed plaintiff by defendant was no greater than that owed any other licensee. (See, Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862.) Under the law in this jurisdiction an owner or occupier of property owes no duty to a licensee except to refrain from willfully, intentionally or recklessly injuring him. (Smith v. Board of Education, 204 Kan. 580, 464 P. 2d 571; Lemon v. Busey, 204 Kan. 119, 461 P. 2d 145; Roberts v. Beebe, 200 Kan. 119, 434 P. 2d 789; Ralls v. Caliendo, supra; Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750; Blackburn v. Colvin, 191 Kan. 239, 380 P. 2d 432; Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P. 2d 748.) Negligent injury of a licensee will not give rise to a claim for relief. A mere licensee takes the premises as he finds them and assumes all risks incident to their condition. (Graham v. Loper Electric Co., supra.) The explanation usually given by the courts for classifying social guests as licensees is that the guest is expected to take the premises as the host himself uses them, and does not expect, and is not entitled to expect, that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the host does not prepare or take precautions for his own safety, or that of members of his family. (2 Restatement of Torts 2d, § 330, Comment h. 3.) The contrast between the duty owed a licensee and an invitee was sharply drawn in Graham v. Loper Electric Co., supra, by the following language: “The owner or occupant of premises owes a much higher degree of care to avoid injury to an invitee than to a mere licensee. The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee’s safety. The duty to exercise ordinary care is active and positive, and no element of wilfullness or wantonness need be present. The inviter has the duty to protect an invitee against any danger that may be reasonably anticipated. The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonably] safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence. (Seymour v. Kelso, 136 Kan. 543, 16 P. 2d 958; Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P. 2d 427; George v. Ayesh, 179 Kan. 324, 295 P. 2d 660; Gardner v. Koenig, 188 Kan. 135, 360 P. 2d 1107.)” (pp. 561-562.) Plaintiff based his claim for relief on what he alleged was wanton and reckless conduct of the defendant in the following respects: (1) In permitting the existence and use of two adjacent doors in the same hallway, one to the bathroom and one to the basement; (2) failure to maintain adequate lighting in the hallway; (3) failure to install a light or other device on the basement door; (4) failure to light the basement steps; (5) failure to install a railing on the basement steps; (6) knowledge that the condition of the premises was dangerous; and (7) failure to warn plaintiff of said dangerous condition. When describing conduct as being either “wanton” or “reckless,” we discern little or no difference to be attached to the meaning of these terms. In either case we are dealing with conduct which is something more than ordinary negligence, yet something less than willful or intentional injury. This is demonstrated by the marked similarity found in the commonly accepted definitions. To con stitute “wantonness,” the act must indicate a realization o£ the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result. (Saunders v. Shaver, 190 Kan. 699, 378 P. 2d 70.) As characterized in Blackburn v. Colvin, supra, for conduct to be “reckless,” it must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of othérs, although no harm was intended. (Also, see, PIK 3.02 and 3.03 and comments thereto.) Our recent decision in Ralls v. Caliendo, supra, is of compelling significance inasmuch as the facts are comparable in many respects. Mrs. Ralls, an elderly relative of the Caliendos, slipped on some water on the floor near the refrigerator and injured herself while a guest in the Caliendos’ home. The evidence disclosed that prior to the accident, as well as on many other occasions, ice cubes which had fallen on the floor near the refrigerator were kicked under it by different members of the family and left to melt—the water, in turn, running out over the floor. The Caliendos were aware of this practice and knew thére had been water on the floor in this same area many times, not only from melted ice cubes, but from the spilled contents of their dog’s water pan which was located near the refrigerator. Mrs. Caliendo was cognizant of the fact there was water on the floor in the area before Mrs. Ralls fell, but did not stop to mop because she was preparing Christmas dinner. Mr. Caliendo, who had previously fallen in the same place because of water on the floor, described the appearance of the area as a “dangerous condition.” This court, in affirming the trial court’s sustaining of defendants’ motion to dismiss at the close of plaintiff’s evidence, said: “The plaintiff makes no claim the defendants were guilty of willful or wanton negligence; it is claimed only the factual circumstances were such the plaintiff was entitled to a jury’s consideration whether the defendants’ conduct was reckless, that is, whether it was such as to evince disregard of or indifference to consequences involving danger to the plaintiff. It is argued the defendants had created the condition or circumstances and knew of its presence; that they failed to momentarily warn the elderly plaintiff of its presence or assist her in any manner prior to her fall, notwithstanding the fact one of them had previously fallen in the area for similar reasons, and it was considered a dangerous condition. “Based upon the standard of proof announced in Blackburn, supra, we are of the opinion the evidence was not such as to authorize a jury to consider the defendants’ acts or omissions as that entire want of care which would raise the presumption of a conscious indifference to consequences, justly characterized as reckless. It is unnecessary to restate the evidence. At most, the defendants’ conduct constituted nothing more than, as the district court concluded, ordinary negligence which is not sufficient to permit the plaintiff to recover or to have her cause submitted to a j'ury.” (Emphasis added.) (p. 88.) Viewing the evidence and all reasonable inferences that may properly be drawn therefrom in the light most favorable to the plaintiff, we are of the opinion the trial court erred in failing to sustain defendant’s motion for directed verdict. In short, there was insufficient evidence to establish wanton or reckless conduct on the part of defendant within the context of the rules discussed. The entire strength of plaintiff’s case rests upon the proposition that there lurked upon defendant’s premises a dangerous condition of which he was fully aware, and consequently, he had the duty to make the premises safe, or at least warn his guests of the condition. Rreach of the duty in either respect, plaintiff argues, constituted wanton and reckless conduct, rendering the defendant liable. There are several reasons which make plaintiff’s argument untenable. The various acts plaintiff claims defendant failed to do in making the premises safe, as well as his failure to warn of a dangerous condition which was known to him, at most were acts of ordinary negligence, which, under Kansas law, do not render a host liable to a guest. Moreover, they were acts of omission which by their very nature were passive in character. Ordinarily, passive negligence cannot amount to willful, intentional or reckless conduct sufficient to enable recovery by a licensee from the owner or occupant of the premises. (Lemon v. Busey, supra.) Plaintiff seeks to support his contention that defendant was under a duty to warn about or make safe a dangerous condition by relying on the rule of general liability of property owners to licensees as set forth in 2 Restatement of Torts 2d, § 342. In essence, under this rule, when a host knows or has reason to know of a condition that involves an unreasonable risk of harm to a guest, the host is under a duty to exercise reasonable care to make the condition safe, or to warn tire guest of the condition and the risk involved, if the host has reason to believe the guest does not know or will not discover the dangerous condition. As made plain by Mr. Justice Fatzer in his dissenting opinion in Ralls v. Caliendo, supra, the majority of this court has declined to accept the higher duty imposed on a host by the Restatement rule. The law in this jurisdiction imposing a duty upon the owner to exercise reasonable care in keeping the premises in a reasonably safe and suitable condition, or of warning of concealed perils, extends to invitees, not to licensees or social guests. (See, Graham v. Loper Electric Co., supra, and cases cited therein.) Furthermore, plaintiff’s argument, even if otherwise feasible, presupposes the condition of defendant’s premises was such as to constitute a concealed danger, or at least posed a condition involving an unreasonable risk of harm. We cannot agree. In those jurisdictions taking the more charitable view toward a guest, the host has a duty to warn only where the condition causing injury or the risk therefrom is so hidden that the guest cannot reasonably be expected to learn of it for himself. (Anno. 55 A. L. R. 2d 525 § 3.) As stated by some authorities, the host is under a duty to warn a guest of any concealed danger, pitfall or trap from which the guest could not avoid injury by reasonable care and skill. (Johnson v. Goodier, 182 Neb. 172, 153 N. W. 2d 445; Baer v. Van Huffell et ux, 225 Ore. 30, 356 P. 2d 1069.) Hence, a host is under no duty to give warning of a condition which should be obvious to tihe guest. Defendant had moved into his present home in 1953. The door to the basement, the stairs, and the landing were in the same position and general condition at the time he moved in as when plaintiff’s fall occurred. Defendant had installed new lighting in the kitchen, but there never had been a light in the hall, inasmuch as the area was illuminated from lights in the kitchen and the living room. For all practical purposes, the condition of defendant’s home, and the area with which we are concerned, had remained the same since 1953. Ordinarily, a condition in a home which consists of an unlocked door opening into a basement stairway is not a dangerous condition amounting to a pitfall or trap which would require a warning from the host to a guest. (See, Johnson v. Goodier, supra; Baer v. Van Huffell et ux, supra; Tempest v. Richardson, 5 Utah 2d 174, 299 P. 2d 124.) Nor do we believe under the facts here there was anything so deceptive as to present a concealed danger by two similar doors being located side by side and leading to different destinations. Basements with inside stairs closed off by a door at an upper level are commonly found in residences. General knowledge should warn every guest in a home that such a stairway may exist. By the same token, bathrooms are normally closed off from adjacent areas by a door. The exercise of reasonable care for onefs own safety would require a guest, on opening any door, to investigate before stepping across the threshold. By plaintiff’s own testimony, he had been to the bathroom on a prior occasion when in defendant’s home, and thus, was familiar with its general location. He told no one where he was going, and there is no evidence defendant was aware he intended to go to the bathroom. Confronted by two doors as he proceeded on his journey, plaintiff was put on notice that only one could lead to the bathroom. Plaintiff obviously thought he knew which was the proper door. Unfortunately, he was mistaken. But his misfortune was not due to the existetace of a pitfall or trap fostered by the two similar doors; rather, it was the result of an unwise reliance upon his own memory. Plaintiff simply allowed self-assurance to displace caution. Plaintiff’s effort to support his position by our decision in Blackburn v. Colvin, supra, is of no avail. In the first place, the question of whether the evidence was sufficient to justify submission of the case to the jury on the issue of defendant’s willful, intentional reckless conduct was not squarely before this court because of a defective notice of appeal. Secondly, plaintiff’s contention that this court specifically approved an instruction stating that failure to warn might be considered an element of willful, intentional or reckless conduct is not substantiated by a careful scrutiny of the decision. That portion of the instruction was not questioned; rather, the part containing words referring to whether defendant knew “or should have known” of the dangerous condition created by him was the bone of contention. In view of our conclusion that the evidence was insufficient to make out a submissible case, consideration of other points is unnecessary. The judgment is reversed with directions to sustain the motion for directed verdict and enter judgment for the defendant. Schroeder and Fhomme, J. J., not participating.

The opinion of the court was delivered by Fatzer, J.: The sole question presented is whether the appellant was in lawful custody on June 26, 1967, at the time he actually departed from the Pomona Reservoir Honor Camp, located within Osage County, and thereby unlawfully gained his liberty contrary to the provisions of K. S. A. 21-734. On April 14, 1966, the appellant entered his plea of guilty in the district court of Marshall County, to the crime of attempt to commit burglary in the second degree in violation of K. S. A. 21-520, and was sentenced to the Kansas State Penitentiary for a term less than life. Later, and on December 12, 1966, while the appellant was serving the sentence imposed on April 14, 1966, he was transferred by order of the Director of Penal Institutions pursuant to K. S. A. 76-2442 and K. S. A. 76-2442a from the penitentiary to No. 51 Detail-Mobile Unit Honor Camp at Pomona Reservoir to perform labor on state property. The appellant remained at the Honor Camp until June 26, 1967, when he escaped therefrom without breaking the prison of the penitentiary. In State v. Carreiro, 203 Kan. 875, 457 P. 2d 123, it was decided that a prisoner committed to the State Penitentiary under a sentence confining him at hard labor for a term less than life, and who is transferred by order of the Director of Penal Institutions pursuant to K. S. A. 76-2442a to the Pomona Reservoir Honor Camp to perform labor on state property, the prisoner is in lawful custody pursuant to the sentence and order of commitment entered by the district court, and where he thereafter gains his liberty by voluntarily departing therefrom, he is guilty of the crime of escape as defined in K. S. A. 21-734. We adhere to the decision of State v. Carreiro, supra, and the judgment of the district court is affirmed.

The opinion of the court was delivered by Hatcher, C.: This is an appeal from an order dismissing an action to set aside an agricultural lease or in lieu thereof to reform the lease to do equity between the parties. The motion to dismiss challenged the right to maintain the action on two grounds—(1) res judicata and (2) estoppel by acceptance of rental payments. As the doctrine of res judicata disposes of the controversy we will devote our attention to the facts material to this issue. On April 28, 1965, the heirs at law of C. F. Wells, deceased, filed a petition in the District Court of Meade County, Kansas, against the present appellees for relief from a farm lease. The pertinent part of the petition reads as follows: “That said lease was executed at a time when the lessors were unable, due to age and infirmity, to transact business and at the time of the execution of this agreement had no opportunity to consult' with other members of their family who had been advising lessors and assisting them with all their business transactions for several years. That the rental provided in said farm lease agreement is grossly inadequate and because of the circumstances surrounding its execution, the same should be by the court reformed so as to do equity between the parties.” The petition prayed for judgment reforming the lease to do equity between the parties. This case will be referred to as the first case. The lease was dated January 23, 1963, and C. F. Wells and Sarah Wells, his wife, were lessors. C. F. Wells died September 11, 1964. On April 30, 1965, defendants filed a motion against this petition which was heard by the court on May 4, 1965. On May 28, 1965, the court ruled that the petition did not state a cause of action for reformation and dissmissed the action. Plaintiffs filed their notice of appeal and statement of points. On June 10, 1965, the same plaintiffs filed a new action in the Meade County District Court which will be referred to as the second case and is the case appealed in this matter. The petition contained the same allegations as the petition in the first case except plaintiffs added the following allegation: “At the time of the execution of said lease and at all times subsequent thereto, the said lessors were mentally incompetent.” and changed Paragraph 4 by adding that the lease was obtained surreptitiously and that it should be set aside. The prayer asked that the lease be set aside or if the court found that by reason of moneys expended by the defendants it would be inequitable to set aside the lease, that the court reform the lease to do equity. On June 25, 1965, defendants filed a motion against this petition raising among other questions the court’s lack of jurisdiction over the subject matter and the defendants. On September 30, 1965, Fred Wells, who was one of the original plaintiffs, was appointed administrator of the estate of his father, C. F. Wells. On October 4, 1965, without application to or leave of the court an amended petition was filed in case number 6058 naming only the administrator as plaintiff. The allegations were the same as the petition filed June 10, 1965, except that Paragraph 1 was changed to read as follows: “That the plaintiff is the duly authorized, qualified and appointed administrator of the estate of Cyrus Fry Wells, deceased.” On December 22, 1965, the appeal in the first action was dismissed by the Supreme Court for failure of the appellants to file a brief. The trial court later dismissed the second action on defendants’ motion. The plaintiff has appealed. The doctrine of res judicata is a rule of public policy. It is to the interest of the state that there be an end to litigation and an end to the hardship on an individual being vexed more than once for the same cause. The doctrine is, therefore, to be given a liberal application but not applied so rigidly as to defeat the ends of justice. The doctrine means that, if an action is brought, the merits of the question are discussed and a final judgment is obtained by either party, the parties are concluded and cannot again canvass the same question in another action. In Kenoyer v. Board of Barber Examiners, 176 Kan. 424, 271 P. 2d 267, we stated: “This state has long followed the rule that to make a matter res judicata there must be a concurrence of four conditions, namely, (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action, and (4) identity of the quality in the persons for or against whom the claim is made. (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; Hofstetter v. Myers Construction, Inc., 170 Kan. 464, 227 P. 2d 115.)” (p. 427.) Appellant calls our attention to the above statement and without challenging the validity and finality of the first judgment contends that it was not res judicata because (1) lack of identity of causes of action and (2) lack of identity of parties. We cannot agree with appellant’s contentions. It must be conceded that the two actions involve the same subject matter—an agricultural lease. We are given tests of identity of cause of action in 46 Am. Jur. 2d, Judgments, § 406, p. 574, which reads: “The term ‘cause of action’ is not easily defined, and the authorities have laid down no thoroughly satisfactory and all-embracing definition; it may mean one thing for one purpose and something different for another. A fundamental test applied for comparing causes of action, for the purpose of applying principles of res judicata, is whether tire primary right and duty, and delict or wrong, are the same in each action. Under this test, there is but one cause of action where there is but one right in the plaintiff and one wrong on the part of the defendant involving that right. In general, it may be said that under the doctrine of res judicata, a judgment bars relitigation of the same contro versy. Two actions have also been regarded as being based on the same cause of action where the issues in the first action were broad enough to comprehend all that was involved in the issues of the second action, or where the two actions have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the judgment in the first.” There was but one relief desired in both actions—relief from an agricultural lease. The appellant suggests that the facts pleaded in the second action are different. We do not find a material difference. In the first action it was alleged “that said lease was executed at a time when the lessors were unable, due to age and infirmity to transact business.” In the second case there was added to the language above the phrase “and said lease was obtained surreptitiously.” There was also inserted in the petition in the second action the allegation: “At the time of the execution of said lease and at all times subsequent thereto, the said lessors were mentally incompetent.” We cannot see where in the second action the allegations changed the nature of the cause. As suggested by appellees, they differ only in choice of descriptive words relative to mental incompetency, inadequacy of consideration and obtaining the lease secretively. If the appellant sought to change its cause of action to one of actual fraud, his efforts were unavailing. Fraud is a special matter that must be specifically pleaded. K. S. A. 60-209 (b) provides: “Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” We turn next to appellant’s suggestion that the identity of the parties is not the same. The first action was prosecuted by the heirs of C. F. Wells against the two lessees. The second action was brought by the heirs of C. F. Wells and sometime thereafter one of the heirs, Fred Wells, was appointed administrator of the estate of C. F. Wells and an attempt was made to substitute the administrator in the second case for the heirs of C. F. Wells by the filing of an amended petition. Appellees challenge the validity of the substitution because the amended petition was filed without application to or leave of the court. We do not think the question is material here. Neither do we think a lengthy discussion of parties in privity is necessary. The case of Rost v. Heyka, 133 Kan. 292, 299 Pac. 969, gives us the answer to the question. We stated: ". . . The remainder of the estate belongs to the heirs and, as we have seen, all the heirs were parties in the former action when the questions involved were litigated. In his capacity as administrator he was a representative of the heirs to whom the estate was to be partitioned and was in fact in privity with them and the judgment against him in his capacity as heir is conclusive against him in his capacity as administrator. (Donifelser v. Heyl, 7 Kan. App. 606, affirmed in 59 Kan. 779.) In Harris v. Morrison, 100 Kan. 157, syl. ¶ 2, 163 Pac. 1062, it was held that— “ ‘ In an action to determine the ownership of the residue of property left after paying the debts of the deceased person, which action is prosecuted by one to whom the deceased person had contracted to leave the property at his death, against the beneficiary under the will executed by the deceased person, a judgment against the beneficiary is final and conclusive and will be binding on the executor in the final distribution of the estate.’ (See, also, cases cited on the point.) “The general rule is that a judgment binds not only the parties to the action but also those who are in privity with them in the estate, and in the situation mentioned the administrator was so far in privity with the heirs as to be concluded by the determination in the first action. Cases somewhat in point are: Ervin v. Morris, 26 Kan. 664; Hoisington, Sheriff v. Brakey, 31 Kan. 560, 3 Pac. 353; Ellis v. Crowl, 46 Kan. 100, 26 Pac. 454; McEntire v. Williamson, 63 Kan. 275, 65 Pac. 244; Hayes v. Insurance Co., 104 Kan. 230, 178 Pac. 432; Lodge v. Order of United Commercial Travelers, 125 Kan. 26, 262 Pac. 598; Hardy v. Miller, 131 Kan. 65, 289 Pac. 952. “It is unnecessary to cite cases in support of the rule that a fact brought in issue and judicially determined by a court of competent jurisdiction is conclusively settled by the judgment therein as to the parties to the action and those in privity with them and cannot be relitigated in a later action. The judgment rendered against Frank W. Rost in the former action must be held to be conclusive against him not only as heir but also in his capacity as administrator.” (p.295.) We are forced to conclude that the doctrine of res judicata was applicable and the judgment in the first action was a bar to the second. The judgment is affirmed. APPROVED BY THE COURT.

The opinion o£ the court was delivered by Schroeder, J.: This is an action to recover damages for a nuisance alleged to have been created by the city of Kansas City acting in concert with another in the operation of a trash dump adjacent to the plaintiffs’ home. On the trial of the case the jury returned a verdict in the sum of $20,000 for the plaintiffs, and the city has duly perfected an appeal from the judgment entered thereon. The city raises two points on appeal. It contends the trial court erred in refusing to declare a mistrial and in the giving of erroneous instructions. Clyde C. Davis and his wife brought this action for themselves and on behalf of their two minor children (plaintiffs-appellees) alleging that for a period of at least one year immediately preceding July 30, 1964, and continuing to the date the petition was filed (November 20, 1964) the city of Kansas City, Kansas, (defendant-appellant) and Carl C. McClintic (defendant) through their agents, servants and employees carelessly and negligently allowed the city dump site to burn and emit smoke carrying noxious and offensive fumes onto and over their home; that they failed to cover refuse with dirt, thereby permitting the refuse to be scattered onto and upon their property; and that they failed to provide for proper grading and drainage. The petition further alleged: “6) As a result of the negligence and carelessness of the defendants, their agents, servants and employees, the plaintiffs’ home has been rendered unfit, unsafe and unpleasant for habitation; rats and packs of dogs have been attracted to the dump site; the foul and noxious smoke and odors have permeated the furnishings within plaintiffs’ home; the health and peace of mind of plaintiffs have been endangered, and the market value of plaintiffs’ property has been diminished, all to their damage in the sum of $25,000.00.” The petition further alleged the giving of the proper statutory notice of claim which the city refused to allow. As to parties defendant the petition alleged McClintic was, at all times herein material, a contractor responsible for collecting trash within the city limits of Kansas City, and that the defendants shared the control and operation of the dump site specifically described in the petition. The city in its answer admitted McClintic was the contractor responsible for the collection of trash within the city, but denied that it controlled or shared the control with McClintic in the maintenance, use and operation of the dump site. McClintic, among other things, alleged the dump site at all times material was under the control of and operated by “Sanitary Disposal, Inc.,” a corporation duly organized and existing under and by virtue of the laws of the state of Kansas. The evidence discloses the plaintiffs purchased their home in 1956 at which time no dump existed near it. Several year later, in 1960 or 1961, the plaintiffs became aware that refuse and garbage were being dumped in the hollow adjacent to their home. Smoke and ashes from fires commenced blowing across their property, and a sickening odor developed. Thereafter rats, dogs and various types of insects commenced to congregate in the vicinity of the dump and came upon the property of the plaintiffs. Fires in the dump occasionally raged out of control and burned into the plaintiffs’ yard; a wooden fence and an outbuilding were damaged by such a fire. The constant smoke and odor, and mosquitoes which bred in the stagnant pools of water in the dump, created conditions that denied the plaintiffs the enjoyment of then- home, which was located in a rustic, sparsely populated area. In summer months the plaintiffs frequently left their home in order to escape these conditions. There was testimony that the plaintiffs had made various improvements to their home at various times after its acquisition. On the 20th day of October, 1955, the city by an agreement with Georgia R. Jenkins obtained an easement for a period of twenty years for a large parcel of land bordering the plaintiffs’ home for the purpose of providing a refuse dump for the city. The terrain on this property is hilly, and the agreement provided that the city “may use said ravines as a public dump.” (Emphasis added.) On the 28th day of November, 1961, the city entered into a contract with C. C. McClintic, wherein McClintic agreed to collect trash within the city limits of Kansas City, Kansas, for a period of two years beginning January 1, 1962, and ending December 31, 1963. The contract was delineated in some detail calling for the payment of $240,000 in weekly installments over a period of two years. It provided that McClintic was to transport all trash to a dump site to be furnished and operated in a lawful manner by him in strict compliance “with city, county and state laws, health regulations and zoning regulations.” While the contract provided that it was McClintic’s responsibility to “furnish, equip, control and finance the dump site, the dump maintenance and operation,” it further provided that McClintic was to collect all trash according to a schedule prepared by the commissioner of finance, health and public property for the city; that: “The collection of trash shall be at all times under the supervision of the Commissioner of Finance, Health and Public Property, who shall have authority to make additional rules and regulations, not inconsistent with the terms of the contract, requiring that the business of collection, of trash shall be conducted in such manner as not to endanger the public health, or be an annoyance to the inhabitants of said City.” The contract further provided that in the event of any dispute or disagreement as to the collection of trash, “the Commissioner of Finance, Health and Public Property shall be the sole judge and arbitrator of said dispute or disagreement, and his decision thereon shall be final.” The contract further provided in part: “This contract shall include in its terms, by reference, the provisions of ordinances of Kansas City, Kansas, and the health and sanitation ordinance of the city; and shall bind the contractor to abide by the orders of the Board of Commissioners. . . . “The Board of Commissioners shall reserve the right to, at any time after due notice and an opportunity to be heard has been given said contractor, cancel and revoke the said contract for failure to comply with its terms. “Said Contractor or second party shall save the City harmless from any loss or damage on account of said contractor’s conduct of said business and shall execute a bond to the City, to be approved by the Board of Commissioners, in the sum of $25,000, with surety by some responsible surety company, conditioned upon the faithful performance of all the terms of said contract, and save the City harmless from any loss or damage on accotmt of said contractor’s conduct of said business.” The bond given pursuant to the foregoing agreement recites: “The condition of this obligation is such that whereas the said C. C. McClintic has entered into the contract with the City of Kansas City, Kansas, and is duly appointed and designated City Trash Collector for a term beginning January 1, 1962 and ending December 31, 1963, and charged with the duty of collecting and disposing of trash and furnishing the equipment so to do according to the provisions of Ordinance Number 39216, and amendments thereof, and a contract between the City of Kansas City, Kansas, and C. C. McClintic, dated November 28, 1961; . . .” (Emphasis added.) It further recites: “Now, Therefore, if the said principal in the collection and disposal of trash shall perform all the covenants as required in the contract dated November 28, 1961, and hold the City harmless in any and all suits, claims, losses and damages for which the City might be liable in collecting and disposing of trash from within the limits of the City of Kansas City, Kansas, then this obligation shall be void otherwise to remain in full force and effect.” (Emphasis added.) Thereafter on the 29th day of October, 1963, the city entered into another contract with C. C. McClintic for a period of three years beginning January 1, 1964, and ending December 31, 1966, for the collection of trash within the city limits of Kansas City, Kansas, for the sum of $360,000. This contract in all other respects was executed identical to the previous contract the city had with McClintic, and two bonds, one for the year 1964 and the other for the year 1965, were executed identical in all material respects to the previous bond. The record discloses a resolution by the city of Kansas City (the date of which is not indicated) reciting that it “will discontinue the operation of the disposal area after December 31, 1961,” and that the easement it had with Georgia B. Jenkins dated the 20th day of October, 1955, would no longer be necessary for the purposes of the city after December 31, 1961. As of that date the resolution recites the easement “is hereby released,” and the city “will discontinue all operations on said area for dumping purposes.” The city did, however, reserve the right until January 31, 1962, to go upon the described premises for the purpose of depositing earth over the disposal area used by the city. There is no evidence in the record that the city ever entered upon the premises and covered earth over the disposal area. Presumably the release of the city’s easement authorized McClintic to acquire the easement, because he testified he “entered into an easement with the owners Jenkins of the area.” On the 11th day of September, 1964, the plaintiffs filed a statement of claim with the city of Kansas City pursuant to K. S. A. 12-105. Thereafter, on November 20, 1964, this action was instituted in the district court for the recovery of damages resulting from the operation of the dump. The action proceeded to trial on the theory that a nuisance had been created and maintained by the city and McClintic acting in concert. Evidence was introduced of the conditions which existed in the dump and its vicinity from the time the plaintiffs first became aware of the conditions up to the time of trial. Although the trial court limited the recovery against the city to those damages which befell the plaintiffs during a three-month period immediately prior to September 11, 1964, evidence of conditions before and after that period was admitted as against the defendant McClintic. At the close of the presentation of the plaintiffs’ case, the plaintiffs moved to dismiss the action as to McClintic, and the trial court granted the motion. McClintic is not a party to this appeal. The appellees indicate in their brief they filed the motion to dis miss McClintic because there was testimony from McClintic that he had not been conducting his business as an individual but as “All-Purpose Sanitary Disposal, Inc.,” concluding thereby that McClintic personally was not a proper party. The appellant city assigns as its first point that the trial court improperly refused to declare a mistrial at the close of the plaintiffs’ evidence, and after dismissal of the action against McClintic by the plaintiffs, because voluminous testimony had been admitted over objections by the city against McClintic that was inadmissible as to the city, and that the evidence so admitted was incapable of separation by the jury from the evidence admissible as to the city. During the presentation of the plaintiffs’ case the trial court admitted voluminous testimony by the plaintiffs over objection of the city on the ground that such testimony was admissible against the defendant McClintic. This testimony covered a period of time giving rise to the nuisance from the year 1961 to the time of trial. In overruling the city’s objections the court stated it would cover the matter by instructions, which it did. The trial court specifically instructed in No. 11 as follows: “Plaintiffs filed such a notice of their claim with the City Cleric on September 11, 1964. So here the plaintiffs can recover, if at all, from the defendant City, only for such damages to their persons or property as they establish by a preponderance of the evidence were sustained between June 11, 1964, and September 11, 1964.” Ry instruction No. 12 the court informed the jury the plaintiffs were required to establish by a preponderance of the evidence the following essential elements of their cause of action in order to recover against the city: (1) that the city created, maintained or permitted the nuisance to exist in the near proximity of the plaintiffs’ property; and (2) that “between those dates plaintiffs sustained damages due to such nuisance.” The jury was also instructed in No. 17 to disregard the plaintiffs’ claims against the defendant McClintic. In instruction No. 18 it was stated that if the jury found the plaintiffs were entitled to a verdict against the defendant city, it should consider the amount to which the plaintiffs were entitled. Furthermore, Mr. and Mrs. Davis should be allowed such amount as would fairly and adequately compensate them for the diminution in the value of their real estate during the three-month period immediately prior to September 11, 1964, if any is shown, due to a nuisance created, maintained or permitted by the city, and for such amounts as would fairly and adequately compensate each of the four plaintiffs for their annoyance, discomfort, inconvenience and endangerment of their health and peace of mind during said period of time, and due to such nuisance. These instructions properly stated the law and are founded upon the decisions of Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474; and Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829. The city argues in view of the verdict which the jury rendered in the amount of $20,000 ($10,000 for damage to real estate and $2,500 each for the plaintiffs), it is apparent the jury was unable to limit its assessment of damages to those occurring from June 11, 1964, to September 12, 1964, as required under the court’s instructions; and that it was unduly influenced by the extraneous and inadmissible evidence presented against McClintic. The city argues in its brief that confining the evidence to the above ninety-day period of time, there was no substantial evidence to support the verdict. (Citing, Newcomb v. Brettle, 196 Kan. 560, 413 P. 2d 116; and Curry v. Stewart, 189 Kan. 153, 368 P. 2d 297.) A review of the record discloses that while the plaintiffs had difficulty in pinpointing dates with respect to specific occurrences, there was no doubt from their testimony the conditions giving rise to the nuisance were a constant occurrence, and in the summer of 1964 they became so severe they sought legal advice. We have no hesitance in stating the record discloses substantial evidence to sustain the verdict against the city for permitting a nuisance to exist in the near proximity of the plaintiffs’ home for the ninety-day period in question in accordance with the standards set forth in Adams v. City of Arkansas City, supra. The fact that McClintic was dismissed from the case at the close of the plaintiffs’ evidence was no ground for granting a mistrial, because the evidence at the time of its admission was properly received. The jury was properly instructed after the case was dismissed as to McClintic. A similar situation was presented in Steifer v. City of Kansas City, supra. That action involved a claim for damages resulting from nuisance in the operation of a city dump on premises leased from Georgia B. Jenkins and her husband, the same owners as here. There the trial court over objection permitted the introduction of evidence of the conditions of the dump outside the three- month period for the purpose of determining the nature of injunctive relief which the plaintiffs sought in addition to the damages claimed. This court said in its opinion: “. . . The court in its instructions to the jury made it clear that plaintiffs’ right to recover damages was limited to a period of three months preceding the filing of their claim with the city, and defendant’s contention of error in this regard is without merit.” (p. 799.) The situation here presented is contemplated in K. S. A. 60-406, which provides: “When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” On the record here presented the trial court properly followed the law in permitting the introduction of the evidence concerning which complaint is made, and it did not err in so doing, or in its refusal to declare a mistrial. The second point urged by the appellant city for a reversal is that the trial court’s instructions improperly and prejudicially stated the law with reference to the liability of a municipal corporation for the acts of an independent contractor in creating a nuisance outside the corporate limits of the municipal corporation, where the individual contractor performed the majority of the acts complained of for persons other than the municipal corporation» The appellant city in its answer denied that it operated the dump and contends that no evidence was introduced to show that the city improperly operated or controlled the dump after December 31, 1961. The appellant argues McClintic or the All-Purpose Sanitary Disposal Company operated the dump as a private commercial enterprise from the contract for trash collection with the city; that McClintic did dispose of city trash at the dump prior to September 15, 1963, but the city trash consisted of less than twenty percent of the trash handled at the dump. The appellant argues it did not hire or contract with McClintic or the All-Purpose Sanitary Disposal Company to maintain this dump; and that no city trash was disposed of at the dump in question within ninety days prior to the filing of the plaintiffs’ claim with the city. McClintic testified in the trial of the case that he was run off the premises at the dump site by the owners in September, 1963, and that the “All-Purpose Sanitary Disposal, Inc.” was formed as a corporation after 1962, although he did not remember the exact date. It is to be noted from the contracts introduced in evidence and the bonds given pursuant thereto that the city was dealing only with C. C. McClintic, never with the All-Purpose Sanitary Disposal, Inc. In fact, the city was still dealing with C. C. McClintic in the bond given for the calendar year 1965 which the city approved. The second contract McClintic entered into with the city was dated October 29, 1963, more than one month after McClintic claims he was run off the premises of the dump site in question. The plaintiffs’ evidence disclosed the nuisance created by the conditions at the dump was most severe during the ninety-day period for which the jury awarded damages. Under the circumstances presented by the record the jury was entitled to discredit such of the testimony as it disbelieved. The city takes the position it was insulated from liability by the contract it had with McClintic. It relies on Reilly v. Highman, 185 Kan. 537, 345 P. 2d 652, and cases cited therein, for the general rule that where the relationship of employer and independent contractor (contractee and contractor) exists, the employer is not liable for the negligence of the contractor in the performance of the work. There are, however, well established exceptions to the foregoing rule. One of these exceptions is that the employer .is liable where the employer retains the right to exercise authority as to the manner and method in which the work shall be performed by the contractor. (Railroad Co. v. Madden, 77 Kan. 80, 93 Pac. 586; and see Henderson v. Sutton’s Food City, 191 Kan. 145, 379 P. 2d 300.) We hasten to add the gravamen of the offense in actions of this nature is not necessarily negligence but nuisance, and is dealt with by the law of nuisance, whether the nuisance is negligently caused or otherwise. (Adams v. City of Arkansas City, 188 Kan. 391, 400, 362 P. 2d 829.) The exception heretofore noted also obtains where a nuisance has been created. In other words, where the conduct of the contractor gives rise to a nuisance and the employer retains the right to control the manner and method of the contractor’s performance of the contract, the employer is liable for the nuisance. Here the city by its contract retained control of McClintic by specific provisions in the contract, whereby it retained the right to control both the collection and disposal of the trash from the city. This is indicated by the city’s own construction of its contract with McClintic as reflected by the provisions of the bond which it required of McClintic to save the city harmless “in any and all suits, claims, losses and damages for which the City might be liable in collecting and disposing of trash from within the limits of the City.” The city, having retained the right to control McClintic in the disposal of trash from within the limits of the city, cannot now assert that it is immune from liability because McClintic was an independent contractor. The primary instruction concerning which the city complains is instruction No. 9. It reads: “By reason of the nature of trash collection, handling and disposal, a municipal corporation cannot escape its duty by contracting it away, and if in fact a nuisance existed in close proximity to plaintiffs’ property, and this nuisance was due to the improper and careless handling of the trash and rubbish by defendant McClintic, or others, to plaintiffs’ damage, then the City is here liable as if McClintic was not in the picture and as if the disposal site was in fact being operated directly by City employees.” Whether the nature of trash collection and disposal is such that a municipal corporation cannot escape its duty by contracting it away, is a point we are not called upon in this case to decide. (See K. S. A. 12-2102; and Steifer v. City of Kansas City, supra.) Here the city by retaining control over the disposal of trash did not contract away its obligation, and the variance indicated by the instruction and the facts was not prejudicial to the city. The appellant argues not only does the instruction make the city liable for the improper disposal of trash by McClintic, but also for the improper disposal of trash by “others.” McClintic testified that only fifteen or twenty percent of all the trash disposed of at the dump in question constituted trash collected in accordance with his contract with the city. He testified that he serviced industries, Wyandotte County citizens, Johnson County citizens and other individuals at the dump. While the record on this point is not all that it should be, the foregoing testimony is misleading. In the first place, it was argued before this court that the only trash McClintic was re quired to collect under the contract with the city was the trash which he picked up from residential properties within the city limits of Kansas City, Kansas. It was further disclosed that a much greater portion of the trash came from industrial enterprises and commercial businesses within the city limits of Kansas City, Kansas. This trash was not covered by McClintic’s contract with the city. Nevertheless, the trash did arise from within the city limits of Kansas City and went, presumably under private contract, to the dump in question. For this reason, the trial court in its instruction No. 9 used the expression “McClintic, or others.” Nowhere in the record has the city attempted to follow up the testimony of McClintic to show the extent of trash disposed of at the dump by Johnson County citizens or Wyandotte County citizens, nor is there any indication that the Wyandotte County citizens lived outside the limits of the city of Kansas City. It is incumbent upon the appellant to make it affirmatively appear from the record that the trial court committed reversible error. In this the appellant has failed. Other instructions given by the trial court over objection of the city at the trial are not argued or asserted on appeal for a reversal of the judgment. While this opinion should not be construed as approving instruction No. 9, as heretofore quoted, we cannot say from the record presented the appellant was prejudiced by the giving of instruction No. 9. We find no reversible error. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Nuss, J.: This appeal concerns two workers compensation cases which have been consolidated. Employer Schmidtlien Electric, Inc., together with its insurance carrier Trinity Universal Insurance Company (Trinity Universal), and employer Northminster Presbyterian Church, together with its insurance carrier Brotherhood Mutual Insurance Company (Brotherhood Mutual), appeal from the trial court’s dismissal of their petitions for writs of mandamus. In both petitions, plaintiffs sued the Director of the Kansas Division of Workers Compensation (Director) under K.S.A. 44-534a seeking reimbursement of benefits they had paid to their injured employees (claimants). This court transferred the case from the Court of Appeals for review and determination, pursuant to K.S.A. 20-3018(c). The issues on appeal, and this court’s accompanying holdings, are as follows: 1. Did the trial court err in holding there was not a full hearing on employee Biyan Kent’s claim? Yes. 2. Did the trial court err in holding there was no administrative determination that plaintiffs paid more in benefits than those to which claimants were entitled? Yes. 3. Did the trial court err in refusing to issue the writs of mandamus? Yes. Accordingly, we reverse, remand, and order the trial court to issue writs of mandamus ordering the Director to carry out her statutory duties, i.e., to determine the amount of compensation paid by the insurance carriers to claimants and to certify to the Commissioner of Insurance the amount so determined for their reimbursement. FACTS Kristen Anderson was employed by Northminster Presbyterian Church, which was in turn insured by Brotherhood Mutual. Biyan Kent was employed by Schmidtlien Electric, Inc., which was in turn insured by Trinity Universal. Both Anderson and Kent became injured, and their employers’ insurance carriers paid them temporary disability benefits and medical expenses. Their respective workers compensations claims are set forth separately below. Claimant Anderson According to an Agreed Award dated February 10, 2003, the parties stipulated to the following facts: “1. [Anderson] claims personal injury by accident in Reno County, Kansas. “2. [Anderson] claims said accidental injury occurred on or about July 19, 1998. “3. Respondent/insurance carrier admit [that Anderson] met with personal injury by accident on or about the alleged date of accident. “4. Respondent/insurance carrier admit the relationship of employer-employee existed on the date of the accidental injury. “5. Respondent/insurance [carrier] admit that the parties are governed by the Kansas Workers Compensation Act. “6. Respondent/insurance carrier admit that proper notice of the alleged accident was made. “1. Brotherhood Mutual Insurance Company was the insurance carrier for the respondent on the date of accidental injury. “8. The parties stipulate that the average weekly wage on July 19, 1998, was $403.85. “9. Medical treatment has been furnished in the total amount of $24,388.16. There is no claim by Anderson for any past due or out-of-pocket medical reimbursement. ‘TO. Temporary disability compensation has been made in the amount of $3,794.23_” According to the Agreed Award, the parties acknowledged that the following four issues remained in dispute: “(1) 'Whether [Anderson’s] accidental injury arose out of and in the course of her employment with [the church]? “(2) Whether timely written claim was served? “(3) What is the nature and extent of [Anderson’s] disability and the appropriate compensation, if any? “(4) Whether timely Application for Hearing was filed with the Director pursuant to K.S.A. 44-534(b)?” (Emphasis added.) Under “FINDINGS,” the administrative law judge (ALJ) found regarding issues two and four that the parties acknowledged timely written claim was not served and that an application for hearing was not timely filed. He also found: “The parties have requested that the Court enter a final determination denying compensability based upon finding ail disputed issues against claimant and in favor of respondent/insurance carrier.” (Emphasis added.) Accordingly, under the heading “AWARD,” the ALJ stated in relevant part as follows: ' “The Court accepts the findings of the parties and adopts them for purposes of the Court’s final determination in this matter. Accordingly, claimant’s claim is denied. “This Agreed Award should he treated as any other award as if this matter was fully litigated. All other rights of the parties in this matter have been adjudicated except that the respondent/insurance carrier’s right to proceed on securing the reimbursement from the Kansas Workers’ Compensation Fund.” (Emphasis added.) The Agreed Award was signed by the ALJ, by attorneys for both sides, and by claimant Anderson. It was eventually filed with the Director, Philip Harness. Brotherhood Mutual then sought reimbursement of its $28,182.39 from the Director. In a letter dated March 10, 2003, Harness essentially held that reimbursement would be denied because Anderson had originally been entitled to the benefits, and her later failure to file timely claims and applications did not eliminate her right to benefits earlier received. “The February 10, 2003 Agreed Award correcdy states that the claimant is entitled to no award of benefits due to late written claim or late application for hearing. However, the claimant’s entitlement to benefits do [sic] not depend on the existence of an award. “In this case, the defenses of late written claim or late application for hearing would not have existed until 200 days [K.S.A. 44-520a] or 2 years after the last payment of benefits [K.S.A. 44-534(b)]. The claimant was entitled to the benefits when paid, and the claimant’s failure to timely pursue the case after receiving the benefits in no way dissolves the claimant’s right to benefits already received. “It does not appear that the employer or its insurance carrier paid any amounts that the claimant was not entitled to. Therefore, I cannot certify any amounts for reimbursement from the fund.” Brotherhood Mutual then sought reconsideration of Harness’ denial, to which he replied in a letter dated March 25,2003. Among other things, he essentially repeated the theme that reimbursement would be denied because Anderson had originally been entitled to the benefits and her later failure to file timely claims and applications did not eliminate her right to benefits earlier received. He also opined that the ALJ’s determination denying compensability was not factually supportable: “The February 10, 2003, Agreed Award did contain a finding that the claim was not compensable. There were two findings in the Agreed Award: “1. Acknowledgment that written claim and application for hearing were not timely filed. “2. Request for final determination denying compensability. “[However,] [a] finding in the form of a request does not amount to a factual determination; but furthermore, the Agreed Award contains no stipulated facts on which to base a finding that the claim was not compensable. “. . . Late written claim and application for hearing are the only apparent reasons for the denial of the claim. “A claimant’s entitlement to benefits does not depend on the existence of an award. K.S.A. 44-512b assesses a penalty in the form of interest where the employer or insurance carrier fails to pay benefits prior to an award without just cause. K.S.A. 44-5,120 states that such a failure to pay benefits is a fraudulent or abusive act, subject to civil penalty. Clearly, the Workers Compensation Act recognizes a claimant’s entitlement to benefits prior to an award. Likewise, the denial of an award does not necessarily extinguish a claimant’s preexisting entitlement to benefits.” Harness then expressed a possible basis for Brotherhood Mutual’s reimbursement, i.e., that Anderson’s injury did not arise out of and in the course of employment: “If an award denied benefits because the injury did not arise out of and in the course of employment, then the claimant would not have been entitled to workers compensation benefits received for that injury. In the present case, you and the claimant’s counsel may submit to the administrative law judge a modification to the agreed award that specifies that the injury did not arise out of and in the course of employment. If such a modification is approved, you may renew your request for fund reimbursement based on the new findings.” (Emphasis added.) Claimant Kent According to an Award dated November 18, 2002, the parties stipulated to the following facts: “1. [Kent] claims personal injury by accident in Shawnee County, Kansas. “2. [Kent] claims said accidental injury occurred on or about January 22, 1991. “3. Respondent/insurance carrier admit [that Kent] met with personal injury by accident on or about the alleged date of accident. “4. Respondent/insurance carrier admit the relationship of employer-employee existed on the date of the accidental injury. “5. RespondentAnsurance carrier admit that the parties are governed by the Kansas Workers Compensation Act. “6. RespondentAnsurance [carrier] admit that proper notice of the alleged accident was made. “7. Trinity Universal Insurance Company was the insurance carrier for the respondent on the date of the accidental injury. “8. The parties stipulate that the average weekly wage on January 22, 1991, was $482.65. “9. Medical treatment has been furnished in the total amount of $17,616.00. There is no claim by the claimant for any past due or out of pocket medical reimbursement. “10. Temporary total disability compensation has been made in the amount of $87,848.00 representing 316 weeks at the rate of $278.00 per week.” According to the Award, the following four issues, the first three of which were identical to those in Anderson, remained in dispute: “1. Whether claimant’s accidental injury arose out of and in the course of his employment with respondentP “2. Whether timely written claim was served? “3. What is the nature and extent of claimant’s disability and appropriate compensation, if any? “4. What is the liability of the Kansas Workers Compensation Fund?” (Emphasis added.) Under “FINDINGS,” the ALJ found, among other things, that Kent’s claim for compensation should be denied due to his abandonment of his claim, resulting in his failure to prove that his accidental injuries arose out of and in the course of his employment as follows: “Claimant has acknowledged under letter dated July 31,2001from his attorney that he is abandoning his claim. This abandonment was confirmed as the result of a pre-hearing settlement conference held on August 1, 2001. As a result of the outcome of that pre-hearing settlement conference counsel for the respondent/ insurance carrier had circulated on two separate occasions, an Agreed Award. Neither of these Agreed Awards was returned for filing as requested and respon-dentdnsurance carrier has now sought issuance of [an] Award confirming the abandonment pursuant to Supreme Court Rule 170. It is therefore found that the claim for compensation should be denied due to claimant’s abandonment of his claim resulting in failure to prove that his accidental injuries arose out of and in the course of his employment and that he served timely written claim.” (Emphasis added.) Under the heading “AWARD,” the ALJ concluded: “The Court accepts the stipulation of the parties and makes findings consistent with those outlined above. Accordingly, claimant’s claim is denied.” Like Anderson’s ALJ, this one also held: “All rights of the parties in this matter have been determined except the respondent/insurance carrier’s right to proceed on securing the reimbursement.” Trinity Universal then sought reimbursement of its $105,464 from the Director. In a letter dated April 17,2003, Harness denied reimbursement on two bases: (1) no full hearing had occurred and (2) similar to his rationale regarding Anderson, claimant Kent would not lose his original entitlement merely through a subsequent untimely service of written claim or abandonment. “First, it is questionable whether the November 18, 2002, award amounts to a full hearing. This is an award by default, initiated by the respondent, when the claimant was unavailable or unwilling to participate in a regular hearing. The award contains no substantive findings on the compensability issues of injury arising out of and in the course of employment or timely written claim. The award denied benefits simply because the claimant was not there to prove his case. “Even if I assumed this was a full hearing, I cannot determine that the claimant was entitled to less than the benefits previously paid. A worker’s entitlement to benefits does not depend on the existence of an award. Conversely, a default denial, such as in this case, that does not substantively address any compensability issues, fails to establish that the worker was never entitled to benefits.” (Emphasis added.) The employers and their insurance carriers in both matters then filed petitions for writs of mandamus, asking the trial court to compel reimbursement from the Director under K.S.A. 44-534a. Harness filed motions to dismiss, claiming that the trial court lacked subject matter jurisdiction and that mandamus was improper because plaintiffs were not entitled to the relief requested as a matter of law. As Harness had done in his letters denying the claims for reimbursement, he also alleged that there had not been a full hearing on the Kent claim and there had not been a determination of overpayment on either claim, both of which he asserted were required by K.S.A. 44-534a. Harness was succeeded by Paula Great-house as Director. After consolidating the two actions, the trial court made findings of fact primarily by adopting the stipulations of the parties before the ALJs. It also added findings of fact in the Anderson claim: “6. The Administrative Law Judge found that Anderson had not timely filed a written claim, and that a timely application for hearing [had] not been made. Anderson’s claim was denied. “7. Petitioners requested that Respondent certify the amounts it had voluntarily paid to Anderson, to the Commissioner of Insurance for reimbursement pursuant to K.S.A. 44-534a(b). “8. Respondent has declined to certify said amounts stating that denial of Anderson’s claim was the result of an untimely application for hearing and a late written claim, and that there was no finding that Anderson was not entitled to the benefits when paid. “9. The relief Petitioners seek is enforcement of a provision of the Kansas Workers’ Compensation Act, specifically, K.S.A. 44-534a. “10. That upon application for reconsideration of the director’s denial of certification for reimbursement, the director indicated that if the parties wanted to stipulate that the injuries for which compensation was paid did not arise out of and in the course of employment, and obtain an amended order from the Administrative Law Judge to that effect, then the director would reconsider the application for certification.” (Emphasis added.) For the Kent claim the trial court added the following findings of fact: “6. The Administrative Law Judge denied Kent’s claim because he found that Kent had abandoned it, and as a result [1] failed to prove that his accidental injuries arose out of and in the course of his employment, and that [2] he failed to serve a timely written claim. “7. Petitioners requested that Respondent certify the amounts they had paid to, or on behalf of, Kent, to the Commissioner of Insurance for reimbursement pursuant to K.S.A. 44-534a(b). “8. Respondent has declined to certify said amounts stating that denial of the claim was the result of abandonment, and that there was no finding that Kent was not entitled to the benefits when paid. “9. The relief Petitioners seek is enforcement of a provision of the Kansas Workers’ Compensation [Act], specifically, K.S.A. 44-534a.” (Emphasis added.) The trial court found that it had jurisdiction over mandamus actions, though a writ of mandamus should not issue unless a defendant’s legal duty is clear. The court agreed with the Director’s argument that K.S.A. 44-534a(b) requires a full hearing, which occurs “when an administrative law judge enters an award after a preliminary hearing has been held. Sawyer v. Oldham’s Farm Sausage Co., 247 Kan. 327, 333 (1990).” The court also held there was no determination that the claimants had been paid more in benefits than those to which they were entitled. It concluded: “It is clear that an employer would be entitled to reimbursement if it was determined at a full hearing that the injured worker was not entitled to receive benefits. However, there is nothing present in case law or statutoiy interpretation/ language that suggests reimbursement is appropriate when a full hearing has not been held. Additionally, there has been no determination that Petitioners paid more in benefits than the claimants were entitled to. Since Petitioners have failed to establish that the requirements of K.S.A. 44-534a(b) have been met, the Court cannot compel Respondent to certify a claim for reimbursement — her legal duty to do so is not clear. Therefore, Petitioners are not entitled to mandamus relief as a matter of law.” ANALYSIS The Director argues, as she did to the trial court, that the plaintiffs have failed to meet two conditions for reimbursement in K.S.A. 44-534a: (1) there had been no full hearing conducted in the Kent case; and (2) there had not been a determination of “no entitlement to benefits” on either claim. She also reiterates that the trial court has no jurisdiction over workers compensation matters and, even if so, mandamus is inappropriate because she has no legal duty to reimburse which she can be compelled to perform. Plaintiffs respond that the functional equivalent of a full hearing was conducted under the facts of the Kent case and that a formal specific finding of “no entidement to benefits” is unnecessary in both claims. According to plaintiffs, the trial court did have jurisdiction and mandamus is appropriate because it will compel the Director to fulfill her statutory duty of reimbursement of benefits paid to the two claimants. Our analysis of the first two issues requires us to interpret the statute, K.S.A. 44-534a. The trial court agreed with the Director’s interpretation. Interpretation of a statute is a question of law, however, and our review is unlimited. Accordingly, when determining a question of law, we are not bound by the decision of the trial court. Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996). We do acknowledge our statement in the workers compensation case of Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004), concerning an agency’s interpretation: “The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [I]f there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. . . . [However,] [t]he determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.” ’ ” Before addressing the specifics of K.S.A. 44-534a, we need to review some of the general tenets of workers compensation law as contained in K.S.A. 44-501. If personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the Workers Compensation Act. See K.S.A. 44-501(a); Titterington v. Brooke Ins., 277 Kan. 888, 89 P.3d 643 (2004). However, the burden of proof shall be on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which the claimant’s right depends. K.S.A. 44-501(a). “ ‘Burden of proof means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true on the basis of the whole record.” K.S.A. 2003 Supp. 44-508(g). The statute at issue, K.S.A. 44-534a, states: “(a) (1) After an application for a hearing has been filed pursuant to K.S.A. 44-534 and amendments thereto, the employee or the employer may make application for a preliminary hearing, in such form as the director may require, on the issues of the furnishing of medical treatment and the payment of temporary total disability compensation. At least seven days prior to filing an application for a preliminary hearing, the applicant shall give written notice to the adverse party of the intent to file such an application. Such notice of intent shall contain a specific statement of the benefit change being sought that is to be the subject of the requested preliminary hearing. If the parties do not agree to the change of benefits within the seven-day period, the party seeking a change in benefits may file an application for preliminary hearing which shall be accompanied by a copy of the notice of intent and the applicant’s certification that the notice of intent was served on the adverse party or that party’s attorney and that the request for a benefit change has either been denied or was not answered within seven days after service. Copies of medical reports or other evidence which the party intends to produce as exhibits supporting the change of benefits shall be included with the application. The director shall assign the application to an administrative law judge who shall set the matter for a preliminary hearing and shall give at least seven days’ written notice by mail to the parties of the date set for such hearing. “(2) Such preliminary hearing shall be summary in nature and shall be held by an administrative law judge in any county designated by the administrative law judge, and the administrative law judge shall exercise such powers as are provided for the conduct of full hearings on claims under the workers compensation act. Upon a preliminary finding that the injury to the employee is compensable and in accordance with the facts presented at such preliminary hearing, the administrative law judge may make a preliminary award of medical compensation and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim, except that if the employee’s entitlement to medical compensation or temporary total disability compensation is disputed or there is a dispute as to the compensability of the claim, no preliminary award of benefits shall be entered without giving the employer the opportunity to present evidence, including testimony, on the disputed issues. A finding with regard to a disputed issue of whether the employee suffered an accidental injury, whether the injury arose out of and in the course of the employee’s employment, whether notice is given or claim timely made, or whether certain defenses apply, shall be considered jurisdictional, and subject to review by the board. Such review by the board shall not be subject to judicial review. If an appeal from a preliminary order is perfected under this section, such appeal shall not stay the payment of medical compensation and temporary total disability compensation from the date of the preliminary award. If temporary total compensation is awarded, such compensation may be ordered paid from the date of filing the application, except that if the administrative law judge finds from the evidence presented that there were one or more periods of temporary total disability prior to such filing date, temporary total compensation may be ordered paid for all periods of temporary total disability prior to such date of filing. The decision in such preliminary hearing shall be rendered within five days of the conclusion of such hearing. Except as provided in this section, no such preliminary findings or preliminary awards shall be ap-pealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts. “(b) If compensation in the form of medical benefits or temporary total disability benefits has been paid by the employer or the employer’s insurance carrier either voluntarily or pursuant to an award entered under this section and, upon a full hearing on the claim, the amount of compensation to which the employee is entitled is found to be less than the amount of compensation paid or is totally disallowed, the employer and the employer’s insurance carrier shall be reimbursed from the workers compensation fund established in K.S.A. 44-566a and amendments thereto, for all amounts of compensation so paid which are in excess of the amount of compensation the employee is entitled to less any amount deducted from additional disability benefits due the employee pursuant to subsection (c) of K.S.A. 44-525, and amendments thereto, as determined in the full hearing on the claim. The director shall determine the amount of compensation paid by the employer or insurance carrier which is to be reimbursed under this subsection, and the director shall certify to the commissioner of insurance the amount so determined. Upon receipt of such certification, the commissioner of insurance shall cause payment to be made to the employer or the employer’s insurance carrier in accordance therewith. No reimbursement shall be certified unless the request is made by the employer or employer’s insurance carrier within one year of the final award.” Issue 1: Did the trial court err in holding there was not a full hearing on employee Kent’s claim? Trinity Universal concedes that K.S.A. 44-534a(b) speaks of “full hearings” in a number of places: “If compensation . . . has been paid by the employer or the employer’s insurance carrier . . . and, upon a full hearing on the claim, the amount of compensation to which the employee is entitled is found to be less than the amount of compensation paid or is totally disallowed, the employer and the employer’s insurance carrier shall be reimbursed from the workers’ compensation fund ... for all amounts of compensation so paid which are in excess of the amount of compensation the employee is entitled to ... as determined in the full hearing on ike claim.” (Emphasis added.) Trinity Universal also concedes that the trial court found there had not been a full hearing on the Kent claim. It argues, however, that the functional equivalent of one occurred. We therefore examine what is meant by “full hearing.” “ ‘The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning.’ ” Sawyer v. Oldhams Farm Sausage Co., 246 Kan. 327, 331, 787 P.2d 697 (1990) (quoting Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 [1988]). Black’s Law Dictionary 725 (7th ed. 1999) defines “full hearing” as: “A hearing at which the parties are allowed notice of each other’s claims and are given ample opportunity to present their positions with evidence and argument.” This court has also examined the word “hearing.” In Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 319, 510 P.2d 1200 (1973), we stated: “It is trae that the term ‘hearing’ has both a narrow and a broad meaning. As applied to administrative proceedings the term ‘hearing’ is usually construed as meaning the whole proceeding including the ultimate decision therein. (Chicago Ry. Equipment Co. v. Blair, (C.C.A.), 20 F.2d 10, 11.) The decisions recognize the term ‘hearing’ as relating not to physical presence at the taking of evidence, but to certain procedural mínimums to ensure an informed judgment by one who has the responsibility of making the final decision and order. [Citations omitted.]" 212 Kan. at 319. We agree with Trinity Universal that in Kent’s claim, the equivalent of a “full hearing” was held the day of the Award, November 18, 2002. Stated another way, that day essentially included “a hearing at which the parties were allowed notice of each other’s claims and were given ample opportunity to present their positions with evidence and argument.” The Award itself begins by stating: “Claimant appears by and through his attorneys, Dan E. Turner and Phillip L. Turner. Respondent/insurance carrier appear by and through their attorney, Matthew S. Crowley. The Kansas Workers’ Compensation Fund appears through its attorney, Bob Storey.” Moreover, the attorneys streamlined their proceedings through 10 stipulated facts. See Morrison v. Hurst Drilling Co., 212 Kan. 706, 709, 512 P.2d 438 (1973) (A stipulation is an agreement, admission, or concession made in judicial proceedings by the parties thereto or their attorneys.); 73 Am. Jur. 2d, Stipulations § 17 (Stipulations render proof unnecessary and take the place of evidence.). They also identified four specific issues for the ALJs determination, including at least one potentially dispositive of Kent’s entire claim: whether his accidental injury arose out of and in the course of his employment with plaintiff. In addition to the parties’ stipulations, the ALJ further found that Kent acknowledged in a letter dated July 31, 2001, from his legal counsel that he was abandoning his claim, which abandonment was confirmed at yet another hearing, the pre-hearing settlement conference previously held on August 1, 2001. After the ALJ accepted the stipulations and made factual findings, he denied the claim. He specifically concluded that “[a]ll rights of the parties in this matter have been determined except the respondent/insurance carrier’s right to proceed on securing the reimbursement” pursuant to K.S.A. 44-534a. This determination of all issues between these particular parties is consistent with our holding in Clairborne v. Coffeyville Memorial Hosp., 212 Kan. at 319 (hearing usually construed as meaning the whole proceeding including the ultimate decision therein). This determination of all issues is also consistent with K.S.A. 44-534a(a), which provides that preliminary findings and preliminary awards “shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.” (Emphasis added.) The Director responds, however, that she agrees with the trial court’s reliance upon Sawyer v. Oldham’s Farm Sausage Co., 246 Kan. 327. There, this court considered the meaning of “a full hearing on the claim” as set out in K.S.A. 1989 Supp. 44-534a. The claimant was awarded temporary total disability benefits in a preliminary hearing held in January 1983. A regular hearing was then held, and the ALJ made his award on September 19, 1985. The claimant argued on appeal that an award did not become final until review by the Director pursuant to K.S.A. 44-551. We rejected this argument stating: “The phrase, 'the conclusion of a full hearing on the claim/ appearing in K.S.A. 1989 Supp. 44-534a, refers to the date of the award entered by the administrative law judge as a result of the hearing held after the preliminary hearing.” 246 Kan. at 333. Under Sawyer, the date of the conclusion of the full hearing is the date of the final award. We disagree with the applicability of Sawyer to the case at hand. The “final award” discussed in Sawyer never materialized here because the ALJ concluded that Kent had abandoned his claim. Abandonment has been defined as the intentional and voluntary relinquishment of a known right. In re Marriage of Galvin, 32 Kan. App. 2d 410, 413, 83 P.3d 805 (2004). Here, this was the right of an injured employee to pursue a workers compensation claim with the hope of receiving benefits. We acknowledge that at oral arguments the Director s counsel suggested the “full hearing” could still have been held and Kent could have been forced to attend so the statutory requirement could have been satisfied. We join the plaintiffs in disagreeing that a claimant can be forced to attend and, furthermore, that such an exercise was necessary under these facts. We also observe that the trial court’s interpretation — and the Director’s — appears to be inconsistent with other provisions in the statute. K.S.A. 44-534a(a) is replete with legislative efforts to promote cooperation between the claimant and the employer and providing “preliminary” benefits to the claimant as soon as possible, with ultimate determinations to be made at a later date. Some examples include: once the claimant notifies the respondent of intent to file an application for preliminary hearing, the respondent may eliminate the need for such a hearing by agreeing to the benefits; preliminary findings or awards are not binding in the later, full hearing but shall be “subject to a full presentation of the facts.” Similarly, preliminary findings or awards are usually not appeal-able; however, if appealable, the appeal shall not stay the payment of medical compensation and temporary total disability compensation from the date of the preliminary award. As the Director herself admits in her brief on a closely-related issue: “The intent of K.S.A. 44-534a is to encourage employer/insurance providers to provide benefits when they are needed, and to avoid the necessity of withholding treatment or benefits while awaiting a preliminaiy hearing.” Yet the trial court’s interpretation discourages such cooperation by the employer and its insurance carrier. The Director’s counsel admitted at oral arguments that neither the employer nor its carrier can seek recourse under K.S.A. 44-534a against the employee for payments made. See Wasson v. United Dominion Industries, 266 Kan. 1012, 1021, 974 P.2d 578 (1999). Accordingly, if the employer or its carrier is unable to obtain reimbursement from the State under this statute, it has no remedy. In Kent’s situation, the carrier will lose $104,000. Consequently, we agree with the plaintiffs about the hazards of the trial court’s interpretation: “[I]f employers are told they will not receive reimbursement of monies paid to injured workers until a ‘final hearing,’ employers will be reluctant to pay any benefits from the date of injury until final hearing out of concern that they will have an injured employee like Kent who abandons his claims deep into the process and then they cannot recover. No employer would voluntarily provide benefits because they will have lost their assurance of reimbursement and preliminaiy hearings could no longer be conducted upon a summary basis.” The trial court’s interpretation not only discourages cooperation, but it also places the employer and its insurance carrier in a difficult position. As mentioned, if they cooperate with the claimants and attempt to pay benefits early in the process, they run the risk that, like Kent, the claimant will abandon and they will have no ability to obtain reimbursement from the Director. On the other hand, if they refuse to cooperate and refuse to pay benefits early, they run the risk of sanctions. In Harness’ letter of March 25, 2003, he observed that failure to pay compensation can be a fraudulent or abusive act. See K.S.A. 44-5,120(d)(10), (18), and (19). The employer may then be subject to penalties (K.S.A. 44-5,120[g][l]) and costs (44-5,120[f]). As Harness also observed, the employer may be required to pay interest. See K.S.A. 44-512b. For these reasons, we conclude “full hearing” means an exploration of the issues resulting in the ultimate decision, e.g., whether the claimant is entitled to workers compensation benefits. It includes a situation where there has been an evidentiary hearing before the ALJ, as well as where there has been procedural default, e.g., abandonment. Under Kent's circumstances, there is nothing to be gained by requiring the Director’s version of a “full hearing.” Issue 2: Did the trial court err in holding there was no administrative determination that plaintiffs paid more in benefits than those to which claimants were entitled? K.S.A. 44-534a(b) also provides that the right to reimbursement requires that “the amount of compensation to which the employee is entitled is found to be less than the amount of compensation paid or is totally disallowed. . . .” The Director instructed the plaintiffs, and the trial court held, that neither of the ALJ’s had decided that the claimants were never entitled to the benefits. Before this court, the Director again argues that because the ALJ’s failed to make “no entitlement” determinations, reimbursement cannot be made. She also argues that once an entitlement has been established, a claimant’s subsequent failure to timely file notice of claims or applications for preliminary hearing does not eliminate rights to those benefits earlier received. We disagree with the Director’s first argument, which makes her second argument moot. Anderson: arose out of and in the course of employment In denying the request for reconsideration, the Director admitted in his March 25, 2003, letter: “If an award denied benefits because the injury did not arise out of and in the course of employment, then the claimant would not have been entitled to workers compensation benefits received for that injury. In the present case, you and the claimant’s counsel may submit to the administrative law judge a modification to the agreed award that specifies that the injury did not arise out of and in the course of employment. If such a modification is approved, you may renew your request for fund reimbursement hosed on the new findings(Emphasis added.) The trial court, in Finding No. 9, characterized this agreed-upon modification by the attorneys as a “stipulation.” The trial court further found in its Finding No. 6 that “[t]he Administrative Law Judge found that Anderson had not timely filed a written claim, and that a timely application for hearing [had] not been made.” The court’s finding is incomplete because the deter mination had already been made by the ALJ that Anderson’s injury did not arise out of and in the course of her employment. The ALJ found that “[t]he parties have requested that the Court enter a final determination denying compensability based upon finding all disputed issues against claimant and in favor of respondent/insurance carrier.” (Emphasis added.) Disputed Issue No. 1 expressly stated: “[w]hether claimant’s accidental injury arose out of and in the course of her employment with respondent?” The ALJ then granted the parties’ request: “This Agreed Award should be treated as any other award as if this matter was fully litigated. All other rights of the parties in this matter have been adjudicated except that the respondent/insurance carrier’s right to proceed on securing the reimbursement from the Kansas Worker’s Compensation Fund.” (Emphasis added.) Issue No. 1 was clearly resolved against Anderson: her injury did not arise out of and in the course of her employment. Consistent with Harness’ letters to Brotherhood Mutual denying the claim for reimbursement, Director Greathouse now argues on appeal, however, that “[a] finding in the form of a request does not amount to a factual determination.” She also argues that “the Agreed Award contains no stipulated facts on which to base a finding that the claim was not compensable.” The first problem with the Director’s position is that it incorrectly shifts the statutory burden of proof to the employer. Under workers compensation law, it is the claimant’s burden of proof to establish his or her right to an award of compensation and to prove the various conditions on which his or her right depends. See K.S.A. 44-501(a); Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004). Anderson has failed to do so because there is no finding by the ALJ that she was entitled; moreover, the stipulated facts do not independently support a finding of entitlement. Until she does make such a showing, there is no entitlement. The second problem with the Director’s position is that Anderson and her counsel éxpressly asked for an adverse determination of the issue of whether her “accidental injury arose out of and in the course of her employment,” which is tantamount to a stipulation that she is unable to establish this essential element of her claim. See Morrison v. Hurst Drilling Co., 212 Kan. 706, 512 P.2d 438, (1973) (Stipulation has been defined as an agreement, admission, or concession made in judicial proceedings by the parties thereto or their attorneys.). It is at least as effective as a finding of fact — based upon the evidence — that the claim was not compen-sable. See 73 Am. Jur. 2d, Stipulations § 17 (Stipulations render proof unnecessary and take the place of evidence.). Indeed, the Director s predecessor, Harness, acknowledged as much when he invited both sides’ attorneys to stipulate that the injury did not arise out of and in the course of employment, to obtain ALJ approval of the stipulation, and then for the insurance carrier’s counsel to resubmit the request for reimbursement “based upon the new findings.” (Emphasis added.) Once this particular issue has been decided against Anderson, she cannot meet her burden of proof to establish her right to an award of compensation and to prove the various conditions on which her right depends. Failing to prove that an injury arose out of and in the course of employment is fatal to a workers compensation claimant, because the employer is liable only if “personal injury by accident arising out of and in the course of employment is caused to an employee.” See K.S.A. 444501(a); Jacobs v. Goodyear Tire & Rubber Co., 196 Kan. 613, 617, 413 P.2d 986 (1966); Gamble v. Board of Public Utilities, 137 Kan. 227, 19 P.2d 729 (1933). Accordingly, by the Director’s own admission, with a showing that the injury did not arise out of and in the course of employment, the claimant has failed to meet her burden. Anderson is “not entitled” to the benefit. Kent: arose out of and in the course of employment The same rationale holds true for Kent, but even more so. The trial court expressly found in Fact No. 6 that “[t]he Administrative Law Judge denied Kent’s claim because he found that Kent had abandoned it and as a result failed to prove that his accidental injuries arose out of and in the course of employment. . . .” The trial court was correct, i.e., the ALJ did find that “the claim for compensation should be denied due to claimant’s abandonment of his claim resulting in failure to prove that his accidental injuries arose out of and in the course of his employment. . . .” (Emphasis added.) However, the trial court then found that “no lack of entitlement had been proven.” These two findings are contradictory, and the latter is clearly incorrect. As noted earlier in the opinion, when the claimant fails to prove his accidental injuries arose out of and in the course of his employment, then by the Director s own admission, “the claimant would not have been entitled to workers compensation benefits received for that injury.” Simply put, Kent quit before he could prove this required condition. See K.S.A. 44-501(a). Although Wasson v. United Dominion Industries, 266 Kan. 1012, 1021, 974 P.2d 578 (1999), is not directly on point, we find it of some assistance. There, the claimant received $43,925.37 in temporary total disability compensation, medical expenses, and medical management expenses. He then abandoned his claim. At a later informal hearing the employer s insurance carrier, U.S.F.&G., asserted to the ALJ that Wasson’s claim for compensation must be denied because Wasson failed to submit evidence that he had sustained a compensable injury. We stated: “The ALJ noted that a claimant (worker) has the burden of proof that he or she is entitled to compensation, and the claimant in this case had failed to meet his burden because he presented no evidence. The ALJ determined from the evidence submitted by U.S.F.&G. that Wasson had not sustained a compensable injury on March 9, 1993. The ALJ totally disallowed the compensation paid and concluded that, pursuant to K.S.A. 1992 Supp. 44-534a(b), the Fund was hable to the employer and its insurance carrier in the sum of $43,925.37.” 266 Kan. at 1016. This court then held that the claimant’s failure to present evidence, coupled with U.S.F.&G.’s evidence of Wasson’s preexisting back disability and a physician’s opinion that Wasson suffered no discernible aggravation of his preexisting disability as a result of the injury, “clearly supports the ALJ’s finding that Wasson did not receive an injury while working for his employer on March 9, 1993.” 266 Kan. at 1020-21. Accordingly, we held that U.S.F.&G. was entitled to reimbursement by the Fund in accordance with K.S.A. 1992 Supp. 44-534a(b). 266 Kan. at 1021. Similarly, both Anderson and Kent either abandoned their claims or otherwise conceded they could not prove an essential element of their claims to establish their right to compensability. By the claimants’ failure to prove they were due any benefits, it logically follows that the plaintiffs have met the statutory requirement that “the amount of compensation to which the employee is entitled is . . . totally disallowed.” Consequently, they are entitled to reimbursement under the statute. Issue 3: Did the trial court err in refusing to issue the writs of mandamus? Jurisdiction over mandamus As a preliminary matter, we observe that the Director’s counsel alleged during oral arguments that the trial court did not have jurisdiction to address a mandamus action in a workers compensation matter. This issue was presented to the trial court, which found jurisdiction, but neither party briefed the issue to this court. Despite its late appearance before us, we consider the jurisdiction issue. Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999). (An objection based on lack of subject matter jurisdiction may be raised at any time.). The existence of jurisdiction is a question of law over which this court’s scope of review is unlimited. In re Marriage of Wherrell, 274 Kan. 984, 987, 58 P.3d 734 (2002). During arguments, the Director’s counsel cited Jones v. Continental Can Co., 260 Kan. 547, 920 P.2d 939 (1996), as support for her position. The issue in Jones was whether the 3-day mailing rule of Supreme Court Rule 1.05(c) (1995 Kan. Ct. R. Annot. 5) — as provided by reference to K.S.A. 60-206(e) — could be applied to preclude the dismissal of the appeal sought under K.S.A. 1995 Supp. 44-556(a). This court held that it could not, stating: “The Workers Compensation Act provides its own time limit for appeal without reference to. Chapter 6.0 and in preemption of K.S.A. 1995 Supp. 77-613. The statutory basis for applying the provisions of the Code of Civil Procedure to workers compensation appeals was removed by the legislature. This leads us to a strict application of the wording of K.S.A. 1995 Supp. 44-556(a) and the dismissal of this appeal as untimely. “[W]e are back to the clear statement and rule of Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869 (1960), which states: ‘Our decisions are replete that the Workmen’s Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and exclusive, and we must look to the procedure of the act for the methods of its administration. Rules and methods provided by the code of civil procedure not included in the act itself are not available in determining rights thereunder.’ ” 260 Kan. at 557. In reply, the plaintiffs point out that the trial court ruled in their favor on the jurisdiction issue. The court stated: “ ‘In general, the changes to the workers compensation code were designed to shift the de novo review of the district court to the newly created Workers Compensation Board of Appeals. The appellate review of Board decisions was designed to be filed directly with the Court of Appeals.’ Riedmiller v. Harness, 29 Kan. App. 2d 941, 946 (2001)[Citation omitted.]. However, Petitioners argue that their request is not an appeal, but rather a request for mandamus pursuant to K.S.A. 60-802(a). District courts clearly have jurisdiction over mandamus actions.” Plaintiffs also observe, and the Director agrees, that they have no avenue to appeal the Director s determination on reimbursement to the Workers Compensation Board, whose decision could then be reviewed by the Court of Appeals under the Act for Judicial Review and Civil Enforcement of Agency Actions. See Riedmiller v. Harness, 29 Kan. App. 2d 941, 945, 34 P.3d 474 (2001). Under such circumstances, the plaintiffs argue mandamus is available as a remedy. We agree with the trial court’s conclusion regarding jurisdiction. As support, we first look to State, ex rel., v. Unified School District, 218 Kan. 47, 542 P.2d 664 (1975). There, the apportionment of election expenses among subdivisions of government was covered by one act: K.S.A. 25-2201 through 25-2205. The Act provided that a subdivision aggrieved by the county election officer’s decision regarding election expenses had a right of appeal to the state election board. The statute clearly provided that “ ‘[t]he determination of the state election board of any appeal under the provisions of this section shall be conclusive, and shall be the exclusive remedy in such cases.’ ” 218 Kan. at 49. Notwithstanding this straightforward language, we held that “[t]he state election board is . . . not the final arbiter of the stat ute, despite its language; if the board acts beyond its authority, hence 'illegally,’ it is subject to judicial review through a proper action.” 218 Kan. at 50. These types of proper actions were described earlier in the court’s opinion: “In City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P.2d 29, while holding that no appeal would lie from the particular order of the board of tax appeals there challenged, we observed: ‘However, the courts are always open to hear meritorious complaints against illegal or oppressive acts of non-judicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby; but not by appeal where no statute confers a right of appeal. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some appropriate extraordinary legal remedy recognized in our practice — injunction, mandamus or quo warranto.’ [Citations omitted.]” (Emphasis added.) 218 Kan. at 50. Similarly, in Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 668 P.2d 172 (1983), the court addressed the Kansas Watershed District Act, K.S.A. 24-1201 et seq. The Act, like the Workers Compensation Act at issue in the instant case, made no provision for appeals to the district court from decisions of the watershed district board of directors. This court nevertheless held: “In the absence of a statutory provision for appellate review of an administrative decision, no appeal is available. However, relief from illegal, arbitrary, and unreasonable acts of the district can be obtained using an extraordinary remedy like mandamus, quo war-ranto, or injunction.” 234 Kan. at 4. The plaintiffs in the instant case argue, among other things, that the Director acted unreasonably and beyond her authority under the Act when she denied reimbursement. Accordingly, under the rules stated in Sanborn and Huser, the trial court had jurisdiction to consider the requests for mandamus relief. Mandamus as a remedy in the instant case The question remains whether the trial court erred in refusing to issue the writs of mandamus and in dismissing the petitions. A short review of mandamus is in order. Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty re- suits from the office, trust, or official station of the party to whom the order is directed, or from operation of law. K.S.A. 60-801. Mandamus is not available to require performance of an act that involves the exercise of discretion by the public official. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 716, 792 P.2d 971 (1990). Nor does it lie to enforce a right which is in substantial dispute. 246 Kan. at 716. It is available only for the purpose of compelling the performance of a clearly defined duty. Link, Inc., v. City of Hays, 268 Kan. 372, 375, 997 P.2d 697 (2000). “The only acts of public officials that the courts can control by mandamus are those strictly ministerial, meaning the public officer or agent is required to perform based upon a given set of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion about the propriety or impropriety of the act to be performed. [Citation omitted.]” 246 Kan. at 717. The insurance carriers’ claims for reimbursement clearly met the requirements of K.S.A. 44-534a(b), i.e., the benefits they paid to claimants were later totally disallowed by the ALJ. Under K.S.A. 44-534a(b), at best the Director only has discretion in determining “the amount of compensation paid by the employer or insurance carrier which is to be reimbursed. . . Nowhere does the Workers Compensation Act provide that the Director has the discretion to reverse the findings and conclusions of an ALJ and thereby totally disallow the reimbursement claims as a matter of law. And if such power over an ALJ were to exist, it would logically be the Board’s, not the Director’s. See Riedmiller v. Harness, 29 Kan. App. 2d 941, 44-45, 34 P.3d 474 (2001); K.S.A. 44-551(b)(l) (“All final orders, awards, modifications of awards, or preliminary awards under K.S.A. 44-534a and amendments thereto made by an administrative law judge shall be subject to review by the board. . . .”); K.S.A. 44-555c(a) (“The board shall have exclusive jurisdiction to review all decisions, findings, orders and awards of compensation of administrative law judges under the workers compensation act.” [Emphasis added.]). Since the ALJs in both matters found that compensation should be totally disallowed, Greathouse’s statutoiy duty to certify these claims for reimbursement is clear. As a result, under the rationale of Liberal-NEA v. Board of Education, 211 Kan. 219, 505 P.2d 651 (1973), the trial court should have issued the writs of mandamus. There, we concluded that the plaintiff was the statutory exclusive representative of the teachers and was entitled to be recognized as such. Accordingly, the defendant board of education had a statutory duty to enter into professional negotiations with the plaintiff under K.S.A. 72-5423. We held: “In view of the conclusion which we have reached in this case that the defendant board of education had a statutory duty to enter into negotiations with the plaintiff Liberal-NEA, it follows that a writ of mandamus should have been granted by the trial court. (K.S.A. 60-801; Woelk v. Consolidated School District, 133 Kan. 346, 299 Pac. 648.)” (Emphasis added.) This court then reversed and remanded with directions to the trial court to issue an order of mandamus requiring the defendant board of education to engage in collective negotiations with the plaintiff. 211 Kan. at 233. Similarly, in the instant case, the decision of the trial court is reversed and the case is remanded for issuance of writs of mandamus ordering the Director to carry out her statutory duties required by K.S.A. 44-534a(b), i.e., to determine the amount of compensation paid by the insurance carriers to claimants and to certify to the Commissioner of Insurance the amount so determined for their reimbursement.

The opinion of the court was delivered by Dawson, C. J.: This is an appeal from a judgment in favor of defendant on a plea in abatement which he interposed against his prosecution on an indictment charging blackmail. On December 8, 1938, a grand jury in Sedgwick county indicted defendant for a felonious attempt to extort $50 from one Henry Heimerman by threatening to accuse him before the grand jury of the crime of operating slot machines in violation of law. On the same day the grand jury indicted defendant for a felonious attempt to extort $25 from one John Mans by threatening to accuse him of operating slot machines contrary to law. The work of the district court of Sedgwick county requires the services of four district judges who are authorized to sit separately in four numbered divisions of the court for the more expeditious dispatch of their judicial duties. Civil and criminal cases are assigned in rotation to its respective divisions. These arrangements are authorized by statute. (G. S. 1935, 20-601 et seq.) The indictment of defendant for the attempted blackmail of Heimerman was docketed to division No. 2, and the indictment for the attempted blackmail of Mans was docketed to division No. 3. On April 19-21, 1939, the case against defendant on the Mans blackmail indictment (district court No. 102293) was tried before a jury in division No. 3 and a verdict of not guilty was returned. Shortly thereafter the case against defendant on the Heimerman blackmail indictment (district court No. 102294) was called for trial in division No. 2 and defendant interposed a plea in abatement on several grounds not now important, but which were later supplemented by an amendment referring to his prosecution under the Mans blackmail charge in division No. 3, and alleging— “. . . that in' the trial of said cause, evidence was there offered by the prosecution, and admitted by the court, over the objection of the defendant, of other offenses, and more particularly of the offense charged and set forth in the instant case and indictment to which this plea of abatement is directed, and that said proceedings had in case No. 102293 on the dates aforesaid, constitute a bar to any further proceedings in the instant case.” Issues were joined on this plea in abatement; testimony was adduced; the trial court sustained the plea, and judgment was entered in favor of defendant and abating the action. The state appeals, contending that the trial court misinterpreted the statute on which the plea in abatement was predicated. The title of that statute (Laws 1935, ch. 163) reads: “An act relating to subsequent prosecutions in criminal actions, being supplemental to those provisions of the code of. criminal procedure pertaining to jeopardy.” Section 1 of the statute reads: “When one is properly charged in' one or more counts of a complaint, indictment, or information with an offense, or offenses, against any of the laws of the state, and upon the trial of the action evidence is admitted of other offenses which might have been included as other counts in the complaint, indictment, or information, or on which the state might have elected to rely in the action then being tried, a conviction or acquittal on the charge, or charges, as made in the complaint, indictment, or information, shall operate as a bar to any subsequent prosecution of the same person in another action for any act or acts for which the state could have asked for a conviction under the complaint, indictment, or information in the former trial.” (G. S. 1935, 62-1449.) Counsel for the appellee would sustain the judgment on the plea in abatement as follows: The record in case No. 102293 was read in evidence in support of the plea in abatement. Heimerman was a witness for the state. He testified: “Q. Now, on this conversation in the afternoon, November 13, 1938, did the defendant, Mr. Momb, threaten you with indictment by the grand jury by the use of pictures which had been taken of slot machines in your place? ... A. Yes.” Two other witnesses testified they heard that conversation. Defendant gave testimony in his own behalf. His cross-examination, in part, reads: “Q. On the way out to Mans’ place that day, that was at Colwich? Did you see anyone else at Colwich other than Mr. Heimerman? A. I didn’t talk to anyone else. “Q. And didn’t you, to Mr. Heimerman, go to him on or about that same time and tell him that you had pictures of his place, that there were pictures, or that you had them, or words to that effect, pictures of slot machines in his place of business? A. I did not. “Q. And didn’t you tell him that for a consideration that you would see that the pictures were not presented to the grand jury? A. I did not.” Applying these facts to the literal terms of this statute, it appears that defendant was properly charged in the indictment in case No. 102293 in division No. 3 in one count of attempted blackmail on John Mans, and upon the trial evidence was admitted of other offenses which might have been included as other counts in the indictment. In such case what’ consequence does the statute declare shall follow? It declares that defendant’s acquittal (or conviction) on the charge in the indictment shall operate as a bar to any subsequent prosecution in another action for any act or acts for which the state could have asked for a conviction under the indictment in the former trial, that is, the trial in case No. 102293. In the trial and acquittal of defendant in case No. 102293 evidence pertaining to the offense charged in case No. 102294 was elicited. The legal consequence of such admission of evidence was that if there had been a count in the indictment No. 102293 which was then being tried in division No. 3, the state could have asked for a conviction on such count and defendant could have asked for an acquittal thereon. But since there was no count in indictment No. 102293 to which the evidence pertaining to the alleged blackmail of Heimerman could apply, counsel for the state-insist the statute had no application. Counsel for appellee argues that such a construction of the statute “emasculates the statute,” and “reduces the- statute to a nullity.” It is quite true that the statute is one by no means so sweeping in its scope as a mere casual perusal would suggest. It is a matter of common knowledge that the statute was enacted during the interim between the first and second appearance in this court of the notable Brown case from Gove county a few years ago, and its enactment was prompted by the peculiar situation which arose in that case. (In re Brown, 139 Kan. 614, 32 P. 2d 507; State v. Brown, 144 Kan. 573, 61 P. 2d 901; State v. Brown, 146 Kan. 525, 73 P. 2d 19.) The rule granting immunity to a second prosecution under the terms of the statute under consideration could not be applied as a consequence to a prior acquittal or conviction on a single and specific count, as to which the evidence concerning the prior crime or several prior crimes could only have incidental relevancy. Of necessity the rule of the statute must be thus limited. The introduction of evidence of extraneous crimes not charged in the information is apt to occur in any criminal prosecution — a subject which has often been discussed by this and other courts. (State v. King, 111 Kan. 140, 144, 206 Pac. 883, 22 A. L. R. 1006.) Such evidence is admissible, not because a verdict of guilty or not guilty could be rendered thereon in response to some crime not charged and on which defendant had not been arraigned nor required to plead, but merely because of its actual or supposed evidentiary bearing on the case actually on trial. Thus in State v. Mathes, 108 Kan. 488, 196 Pac. 607, where defendant was prosecuted for the felony of obtaining eleven automobiles by false pretenses, evidence was held properly admitted to show that he had developed a system of obtaining other men’s property by false pretenses, and instances of such nefarious transactions were shown solely for whatever probative value it might have on the question of his guilt or innocence of the crime of swindling the prosecuting witness of his eleven automobiles. But in that case, even if this act of 1935 had then been in effect, by no possibility could a verdict of guilt or innocence have been rendered in respect to those other crimes about which such evidence was adduced. Evidence of extraneous crimes is also admissible against defendant where a defendant puts his character in issue (State v. Smith, 114 Kan. 186, 217 Pac. 307); and likewise on cross-examination of defendant to test his credibility. (State v. Story, 144 Kan. 262, 58 P. 2d 1090.) But it could not be argued that where evidence of such extraneous crimes was admitted a verdict of guilty or not guilty could be entered pertaining thereto under the circumstances of their admission in defendant’s prosecution on another specific and definite charge on which he had been arraigned and required to plead and as to which he was actually in jeopardy. It is worth while to note the title to the act of 1935. It signifies a legislative purpose to deal with procedure pertaining to jeopardy. It has no concern with other phases of criminal procedure. In the prosecution of defendant in case No. 102293 in division No. 3 for an attempt to blackmail John Mans it could scarcely be contended that he was actually in jeopardy for the crime of attempting to blackmail Henry Heimerman. The judgment of the district court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

The opinion of the court was delivered by Thiele, J.: Plaintiff brought an action for damages for personal injuries. At the trial the jury returned a general verdict in his favor and answered special questions on which the trial court rendered judgment in favor of the defendant. Plaintiff appeals. In order that the circumstances as alleged in the petition and developed in the evidence may be more easily understood, it is to be noted that Douglas avenue in the city of Wichita is seventy-five feet wide and runs east and west, and is intersected by St. Francis street, traffic at the intersection being controlled by traffic lights or signals. One block to the east and on the south side of Douglas avenue is the Union Station. Immediately to its west and crossing Douglas avenue is a viaduct, the street passing underneath the railroad tracks. Plaintiff’s petition alleged that about 8:30 a. m. of January 31, 1938, he entered a taxicab belonging to the Wichita Cab Company, at the Union Station; the taxicab proceeded west on Douglas avenue, on the north side thereof, and as the taxicab approached the intersection with St. Francis street the driver noticed the traffic light was on a red or stop signal. Ahead of the taxicab was an automobile-which was standing waiting for the light to change; that while that automobile was so standing the taxicab approached it and stopped; that while the taxicab was so standing it was struck with great force and violence by a bus of the defendant; that the plaintiff was thrown out of the back seat of the taxicab into the front seat thereof, and sustained injuries, which need not be here stated. It was alleged that plaintiff’s injuries were due to defendant’s negligence in six particulars, which may be briefly stated, as failing to keep a proper lookout for cars ahead of the bus; failure to have good and sufficient brakes; operating the bus at a rate of speed so as to be unable to stop in time to avoid striking the taxicab; not operating the bus at a rate of speed reasonable and proper under the circumstances ; failing to use care and caution in operating the bus, and in not turning to the right or left to avoid striking the car, and failing to see the taxicab, not slackening the speed of and stopping the bus so as to avoid striking the taxicab. It was also alleged that defendant was negligent in violating certain city ordinances regulating traffic. Briefly stated, defendant’s answer denied generally, and alleged that if plaintiff received injuries they were caused by his own negligence; that at the time the bus was proceeding in a slow and careful manner; that the traffic light was green, there was considerable traffic, and it was necessary to drive close to and behind the taxicab; that the taxicab, without any signal or warning, applied its brakes and came to a sudden stop; that the bus and taxicab bumped together; that there was no severe jolt or blow, but both vehicles came to an immediate stop; that the failure of the driver of the taxicab to signal his intention to stop was in violation of a specified city ordinance and that the negligence of the plaintiff was the proximate and contributing cause of the collision and injury, if any was sustained. The plaintiff’s reply need not be noticed. ■ After introduction of evidence, to which some reference is later made, the trial court permitted defendant to amend its answer to conform to proof and to include an allegation that the driver of the taxicab turned suddenly from the center lane of traffic to the lane of traffic directly in front of the bus, made a sudden stop so that the driver of the bus had no opportunity to avoid a collision, and also to amend with reference to a city ordinance requiring a driver so far as possible to continue in the same lane of traffic in which he is driving. Under instructions of which no complaint may now be made, the cause was submitted to the jury, which returned a general verdict in favor of the plaintiff and answered special questions submitted as follows: “1. Did the taxicab come to a sudden stop? A. Yes. “2. What was the distance in feet between the front of the bus and the rear of the taxicab, when the taxicab made its stop ? A. 10-12 feet. “3. At what speed was the bus traveling when the taxicab made its stop? A. 12-15. “4. At what distance could the bus be stopped at such speed, including reaction time? A. 16-20 feet. “5. Was the collision the result of an unavoidable accident? A. No. “6. Was the bus driver confronted with an emergency? A. Yes. “7. Was the manner in which the taxicab was driven the direct and proximate cause of the collision? A. Yes.” (No. 8, immaterial here.) The plaintiff filed its motion that the court strike and set aside certain of the special questions and answers. Defendant filed its motion for a new trial and also for judgment on the special questions and answers notwithstanding the verdict. On the hearing, the defendant withdrew its motion for a new trial. The court, after hearing the other motions, took the same under advisement and later sustained defendant’s motion for judgment and denied plaintiff’s motion to strike specified special questions and to set aside the answers thereto, and rendered judgment accordingly. The plaintiff appeals, specifying as error the ruling on the motions last above mentioned. The evidence of each party tended to prove the allegations of his pleadings. It was undisputed in the evidence that at all points here involved traffic moving westwardly on Douglas avenue moved in lanes; that the lane just north of the center of-the street was for the faster moving vehicles, and immediately to the north was another lane, and further to the north was the space for parking vehicles, and that the traffic at the intersection with St. Francis street was controlled by light signals. Without going into details plaintiff’s evidence tended to show that as the taxicab in which he was riding moved from the Union Station it reached and entered Douglas avenue and turned west ahead of the bus or that it very shortly passed the bus and got in the north lane of traffic; that as it approached the intersection an automobile was stopped in that lane awaiting a change of the traffic signal; that the taxicab slowed up and came to an easy stop a short distance behind the automobile and stood there from three to ten seconds, when it was struck from behind by the bus. Defendant’s evidence tended to show the following: The bus had stopped just east of the viaduct, then started, swung, into the north lane of traffic and was proceeding westwardly, preparing to stop at the intersection with St. Francis street; that as it was proceeding the taxicab came up along its left or south side and when a short distance from the intersection turned abruptly in front of the bus and immediately and suddenly stopped without any warning; that vehicles in other traffic lanes prevented the bus turning either to the right or left to avoid striking the taxicab; the distance was too short for it to stop and it struck the rear of the taxicab. The jury was confronted with making a choice between the two versions. It may be said that by its general verdict it accepted plaintiff’s version, but that in answering the special questions, it accepted the version of the defendant. Although appellant is not in a position to raise the question, we have examined the record and find the answers to the special questions are fully supported by the evidence. Under G. S. 1935, 60-2918, provision is made for submitting to the jury particular questions of fact to be answered by it, the statute further providing that when the special findings of fact are inconsistent with the general verdict, the former control the latter: Under that statutory rule many questions have been presented to this court, but it has been generally held that a general verdict imports a finding upon all issues in the case not inconsistent with the special findings, while nothing will be presumed in favor of the special findings (Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585). And the rule is that special findings shall be given such a construction, if possible, as will bring them in harmony with the general verdict (Riggs v. Ash Grove Lime & Portland Cement Co., 131 Kan. 244, 246, 289 Pac. 410; Waldner v. Metropolitan Life Ins. Co., 149 Kan. 287, 87 P. 2d 515). But if the special findings cannot be reconciled with the general verdict, and are sufficiently full and complete in themselves, and are not inconsistent in themselves, then judgment must follow. (Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359; Hiler v. Cameron, 144 Kan. 296, 59 P. 2d 30; Jones v. A. T. & S. F. Rly. Co., 148 Kan. 686, 85 P. 2d 15; Kirsch v. Federal Life Ins. Co., 149 Kan. 309, 313, 87 P. 2d 951.) And see the opinion in Eldredge v. Sargent, post, p. 824, — P. 2d —. While nothing will be presumed in favor of the special findings as against the general verdict, the special findings may be viewed and interpreted in the light of the testimony. (Packing Co. v. Home, 68 Kan. 663, syl. ¶4, 75 Pac. 1014.) The purpose of propounding special interrogatories to the jury is to test it upon particular issues of fact necessarily involved in the general verdict, so that it may be determined whether there is sound basis for the general verdict. Before the plaintiff may recover from the defendant, he must show that defendant was guilty of some act of negligence that caused his injuries. The jury by its general verdict found that was the case, and that finding must stand unless the special findings compel a different result. Are the answers to the special questions consistent with that conclusion, or do they compel a different result? Plaintiff’s evidence showed the taxicab proceeded ahead of the bus, came to an easy stop, stood for three to ten seconds, and then defendant’s bus crashed into it. Defendant’s evidence showed that when the bus was about 150 feet from the intersection the taxicab was alongside and that as both proceeded west the taxicab darted in front of the bus and immediately and suddenly stopped. Appellant argues that the jury found negligence by its general verdict; that it did not have to place that finding on evidence adduced by one party to the exclusion of the other, but could reach that conclusion from all of the evidence, citing Clagett v. Phillips Petroleum Co., 150 Kan. 191, 193, 91 P. 2d 52, in support. There is no doubt as to the rule. But there could be no middle ground here; either the plaintiff’s version was right or the defendant’s was. The answers to the special questions negative the plaintiff’s version and confirm the defendant’s. The answers to special questions 1 to 4, inclusive, show the defendant was not negligent as alleged in the petition. If it be assumed that the answers to the first four questions might be reconciled with the general verdict, there would still remain the seventh question and answer to the effect the manner in which the taxicab was driven was the direct and proximate cause of the accident. Appellant insists that that finding may be reconciled with the general verdict; that the negligence of the taxicab driver may not be imputed to the passengers; that there may be two proximate causes, and therefore the general finding is sufficient. In support he cites McRae, Adm’r, v. Railroad Co., 116 Kan. 99, 225 Pac. 1032. In that case the jury answered a special question that injury to a passenger in an automobile was proximately caused by the manner in which the automobile was driven. Judgment on the special findings was denied, the trial court expressly concluding that from the findings of fact and the general verdict there were two proximate causes. Here the trial court, by allowing the motion, must be held to have reached a contrary conclusion. As heretofore indicated, our examination of the evidence leads to the conclusion that either the plaintiff’s or the defendant’s version of what happened must be accepted. By the answers to special questions 1 to 4, inclusive, the jury found the defendant’s version to be correct. So considered there was one — and only one — direct and proximate cause of the plaintiff’s injuries, and under the answer to question 7 that cause was the manner in which the taxicab was driven and not any negligence of the defendant. The question whether the answers to the special questions could be reconciled with the general verdict or whether those special answers compelled a judgment for the defendant was primarily for the trial court, and unless error is made to appear, its judgment must stand. We conclude there was no error. Other specifications of error are made in the abstract, but are not mentioned in the brief of appellant and will not be discussed. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Smith, J.: This was a proceeding to probate a will. The probate court refused to permit the will to be probated. On appeal the district court refused to probate the will. The proponents of the will appeal. When the will was offered for probate an objection was filed and the matter was set down for hearing and evidence was introduced. The proponent of the will was Catherine E. Foreman. She was named executrix and sole beneficiary in the will. The objections to the probate of the will were filed by all the heirs at law of the deceased. The objections filed by the heirs stated that they objected to the probate of the will on the ground that Isaphine Faust, on February 23, 1938, the date when the will was alleged to have been executed, was not mentally competent to execute a will and that she was lacking of sound mind and memory; and further that on February 23, 1938, she was under restraint at the time the will was signed. After hearing the evidence the probate court found that the will should not be admitted to probate for the reason that Isaphine Faust was not mentally competent to execute a will on February 23, 1938; for the further reason that she was under restraint at the time the will was signed; and that she did not have independent advice with reference to the will, as required by the statute. Subsequent to the decision on the matter by the probate court a special administrator was appointed and is now serving. The probate court taxed the costs of the proceedings against the proponent of the will. The proponent filed a motion to retax these costs. This motion was denied. On appeal the district court heard testimony and made the following findings: “1. That at the time Isaphine Faust executed the will in question, she was mentally incompetent, and had been for many months prior to that time. “2. That at the time of the execution of said will, there existed between Mrs. H. C. Foreman, the sole beneficiary named in the will, and Mrs. Faust a confidential relationship, and that Mrs. Faust did not have independent advice in connection with the preparation of her will. “3. That Isaphine Faust was subject to restraint at the time of the execution of her will.” The court also found that the proponent of the will should pay the costs of the proceedings. On the hearing of a motion for a new trial and to retax costs the trial court overruled the motion for a new trial and found that the appeal from the probate court was taken, not by the executrix of the will, but by the sole legatee under the will, and that the motion to retax costs should be overruled. The proponent of the will also filed a motion that she be allowed fees as executrix, attorney fees and expenses out of the estate. This motion was overruled. From these orders and judgments the proponent has appealed. The proponent of the will states that because of limited financial means she was unable to procure a transcript of the entire record. Hence the scope of the review will be somewhat limited on that account. The first error of which the proponent complains is that the trial court erred in refusing to admit the testimony of the doctor who attended deceased in her last illness. An offer of proof was made at the trial in district court, and an affidavit of what the testimony of the doctor would have been was furnished the trial court on the hearing of the motion for a new trial. The objection to the probate of the will and to the evidence of the doctor was sustained on the ground that what he was interrogated about was a privileged communication, and incompetent under the provisions of G. S. 1935, 60-2805. The argument of the proponent of the will is that this privilege was waived. In connection with the argument of proponent on this point we must note that the trial court and the probate court refused to permit the will to be probated on two other grounds besides want of testamentary capacity of the deceased, that is, the trial court found in addition to want of testamentary capacity that at the time of the execution of the will she was mentally incompetent and had been for many months prior to that time; that at the time of the execution of said will there existed between Mrs. H. C. Foreman, the sole beneficiary named in the-will, and Mrs. Faust a confidential relationship ; that Mrs. Faust did not have independent advice in connection with the preparation of her will and that she was subject to -restraint at the time of the execution of her will. Either one of these grounds would require the court to take the action it did take, as we shall presently see. The affidavit of the doctor shows that his testimony was offered on the question of whether the deceased was mentally competent. Since there are two other grounds upon which the court might have reached the conclusion it did reach, we are not concerned about whether testimony that bore only upon one of the grounds was improperly or properly excluded. It would not do to send this case back to be tried again on the question of whether the deceased was competent to make a will when the trial court found, in addition to the incompetency, that there was undue influence exercised on deceased; that she received no independent advice, and that she was under restraint. Since these findings are not questioned here and we are not furnished a record of the evidence upon which these findings were made, we must assume that there was ample evidence to sustain them. For these reasons the judgment of the trial court should stand regardless of whether the testimony of the doctor was privileged. The proponents of the will realize the force of this argument, and to meet it they point out the following language in the affidavit of the doctor: “That the doctor suggested to Mrs. Faust that she be taken to a hospital, as her illness might be of rather long duration and might be a burden on the Foremans, but that Mrs. Faust stated that she was well taken care of and did not want to go to the hospital. That the doctor would further testify that the Foremans were entirely agreeable with this and thought it ought to be done, but did not take Mrs. Faust to.the hospital because of her own objection. That . . . there is nothing in cancer illness that affects the mind. That . . . during his visits to the Foreman residence in attending Mrs. Faust, he talked to the Foremans on many occasions and that at no time did they suggest that they desired to restrain Mrs. Faust in any manner or keep her on their premises rather than to send her to the hospital, or show any disposition to take any such action.” She argues that this testimony of the doctor would have been competent on the question of restraint, to which the trial court found deceased was subject at the time she made her will. G. S. 1935, 22-218, provides as follows: “If it shall appear that such will was .duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate.” The proponent of the will here construes the word “restraint” as used in that statute and in the findings of the court here to mean some physical restraint of the body. If that be the correct construction, then the testimony of the doctor would be competent on the question of restraint. The rule is, however, that the word “restraint,” as used in the statute, is any action that deprives the testatrix of the free exercise of her will. There might be restraint in a case such as we have here and this elderly woman be perfectly willing to stay in the home of the proponent of the will. Under the circumstances we have here, when the record is not brought up for review, we must conclude there was sufficient evidence to warrant the trial court in reaching such a conclusion. The evidence of the doctor, therefore, is of no probative value on this point. Besides all this, we have the findings of the trial court that at the time of the execution of the will there existed between Mrs. PI. C. Foreman, the sole beneficiary named in the will, and Mrs. Faust, a confidential relationship, and that Mrs. Faust did not have independent advice in connection with the preparation of her will. In this finding the trial court followed the provisions of G. S. 1935, 22-214. This statute provides that if it shall appear that the facts found here exist, then the will shall not he held valid. Under the record as we have it here we must -conclude that there was evidence to warrant such a finding. From an examination of the doctor’s affidavit it does not appear that his evidence would have shed any light on that question. For all these reasons we have concluded that it was not error for the trial court to exclude the evidence of the doctor, regardless of whether it was a confidential communication, and we shall not deal with that question here. The next argument is that the trial court erred in taxing the costs against the proponent of the will and refusing to allow attorney fees for the attorneys for the proponent of the will to be paid out of the estate. The main decision cited and relied on by the proponent on this point is In re Estate of Hooper, 144 Kan. 549. In that case the executor named was not a beneficiary under the will. He offered the will for probate as was his duty as executor. Some costs were incurred and the trial court taxed them against the executor. This court said: “It will be noted that the trial court taxed the costs against the executor. This should not have been done. The executor was named in the will. It was his duty to offer the will for probate. It was necessary that this should be done for the benefit of all concerned. He should not be penalized for doing his duty. The estate should pay his- expense.” In this case the named executrix who offered the will for probate was also the sole beneficiary. While we do not have the entire record here, we note that the journal entry of the decision of the probate court recited that Catherine Foreman, not Catherine Foreman as executrix, appeared and offered evidence, and the journal entry was approved by counsel for Catherine Foreman, not for Catherine Foreman as executrix. Catherine Foreman appealed to the district court as sole beneficiary, not as executrix. None of the action she took was as executrix. From the outset, it is clear that she was carrying on the litigation for her own benefit and in order that she might receive the property, and not for the benefit of the estate. It is not just clear from this record, but it appears that a special administrator was appointed by the probate court immediately after probate of the will was refused. From that time on Mrs. Foreman was named beneficiary under the will and had no other connection with it. The proponent cites Medill v. Mclntire, 136 Kan. 594, 16 P. 2d 952, as upholding her argument here. In that case an executor was allowed fees and expenses incurred in probating a will that was later, in another action, held to bé a forged will and invalid. When the allowance of these fees was contested this court said: “Tlie plaintiff contends that it having been established that the will was a forgery, there can be no recovery against the estate by the executor for services and expenses in administering it up to the time the invalidity of the will was finally determined. When a will was found and in it Mclntire was nominated as executor, he had the right to procure the probate of the same; and when it was admitted to probate and he had been regularly appointed as executor, he became the personal representative of the estate and had the right to administer it and to defend the will, and thus carry out the will of the testator as expressed in the instrument. An executor who acts in good faith is entitled to reasonable compensation for his services and necessary expenses in the execution of the will. The statute provides that: “ ‘Executors and administrators shall be allowed for their services such reasonable compensation as may be allowed by the' court upon due hearing therefor had, at times and upon notice to be fixed by the court; also, necessary attorneys’ fees and other expenses as the court shall deem reasonable and necessarily incurred, to be ascertained upon like hearing.’ ” (p. 596.) Here the will was never admitted to probate and no service whatever was performed by Mrs. Foreman as executrix. The elements of good faith in the executor or administrator are always involved in consideration of a question such as this. The probate court and the trial court had a better opportunity to reach a sound conclusion as to the good faith of the executrix in this case than we have with our limited record. From the findings it appears that the entire proceedings, as far as Mrs. Foreman is concerned, were in bad faith. In such a case we cannot hold that the court erred when it refused to allow costs and attorney fees to be paid out of an estate to one who in bad faith carried on litigation for her own benefit. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Harvey, J.: This was an action on a life and accident insurance policy. It was tried by the court, judgment was for plaintiff, and defendant has appealed. Defendant issued a policy to Clarence A. Shurtz, a young man about seventeen years of age, in which his mother, the plaintiff, was named as beneficiary. The policy contained a provision that, — “Upon receipt of due proof that the insured . . . has sustained bodily injury, solely through external, violent and accidental means, . . . and resulting in the death of the insured, . . . the company will pay, in addition to any other sums due under the policy, ... a benefit for death by accidental means equal to the face amount of insurance stated in the policy. . . .” In the petition it was alleged that on July 7,1937, Clarence Shurtz was pitching hay in a barn, and in doing so strained himself and tore, bruised and broke his pancreas, which resulted in immediate death, and that the injuries resulting in his death were due wholly to accidental, external and violent means. The answer was a general denial. Defendant paid into court the full amount of the principal sum of the policy, $132, and it was stipulated that the sole question for determination was whether the deceased met his death through external, violent and accidental means, as provided for under the terms of the policy. A jury was waived, the trial court heard the evidence and found generally for the plaintiff, and rendered judgment accordingly. In this court appellant contends that the court erred in overruling its demurrer to plaintiff’s evidence; that there was no competent evidence to support the judgment, and that the judgment was based on conjecture, surmise and speculation. The evidence disclosed that prior to the day of his death the insured was strong, healthy, and never had been ill or attended by a doctor. The insured lived on a farm with his parents. On the day of his death he was working for a Mr. Martin, who lived across the road from his home. Mr. Martin was mowing oats and putting them in the barn loft with a hay fork. The insured was mowing back the hay in the loft. Late in the evening when Mr. Martin came to the barn with a load he found the insured lying dead near his fork in the haymow. He had mowed back about half of the hay, which would take about twenty minutes. Martin had been gone about thirty minutes. That evening, or the next day, an autopsy was performed by three physicians in the presence of the coroner. The physicians examined the different organs, including the heart, lungs, kidneys, intestines, bowels, and found all organs examined to be apparently normal, with the exception of the pancreas. His pancreas was filled with blood and had ruptured internally. The pancreas is a long organ, divided into two bodies, and lies directly across the abdomen within the intestines. The insured apparently died from hemorrhage of the pancreas, resulting in acute pancreatitis. The questions argued on the appeal relate almost entirely to the testimony of the physicians who conducted the autopsy. Each of the physicians testified that in his judgment the rupture of the pancreas was caused by trauma, a blow of some kind, and that his conclusion was reached from the examination made independently of the history of the insured’s health, and that the same conclusion was reached when the result of their examination and the history were considered together. There was no external evidence on the body of a blow, but the testimony was that the position of the pancreas and the texture of its tissues were such that it might be ruptured by a blow which left no mark externally on the body. We note the provisions of the policy do not require a showing of external marks on the body. Appellant points out that one of the doctors, in his direct testimony, in giving his judgment as to the cause of death, stated that he had taken into consideration the history of the patient as well as his examination, and cases (A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463; Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538) are cited to the effect that in such a case the history should not be taken into account. Later, the same physician, however, stated that his judgment was the same when the examination alone was considered. We think there is no such showing here, that the opinion of the physician was founded upon the history of the patient, as to require a reversal of the judgment. The physicians did testify that sometimes there are ruptures of blood vessels in the pancreas which are not caused by trauma. They further testified that from their examination of the pancreas and the other organs of the body there was no evidence of other causes, and in their judgment the insured’s pancreas was ruptured by trauma. Being pressed on cross-examination one or more of them did testify that he would not say that his statement of the cause of death was “100 percent perfect.” From this it is argued by appellant that the evidence on which the finding and judgment of the trial court were founded was based upon pure speculation and conjecture. The point is not well taken. Plaintiff in a civil action is not required to prove his case beyond the possibility of doubt. He is required to prove it only by a preponderance of the evidence; and where reputable physicians, as these were, after a thorough examination, gave their professional judgment that the cause of death was trauma, or an external blow, we think the trial court commits no error in regarding such testimony as meeting the requirements of a preponderance of the evidence, particularly as is the case here, where there was no opposing testimony or other evidence tending to discredit that given by the physicians. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Thiele, J.: The Central Fibre Products Company filed its income-tax return for the year ending June 30, 1935, with the income tax department, which on July 12, 1937, determined additional tax was due. Under appropriate procedure the state tax commission on February 23, 1938, made its order finding the assessment to be correct. The company appealed to the district court. In that court the matter was submitted upon a written stipulation of facts, and on January 31, 1939, the court found there was no additional tax liability and rendered judgment in favor of the company. On February 3,1939, the state tax commission filed its motion for a new trial upon the six grounds specified in G. S. 1935, 60-3001. This motion was denied on February 18, 1939. On April 17, 1939, the state tax commission perfected its appeal to this court by serving and filing a notice that it appealed from the decision of the trial court denying its motion for a new trial. No appeal was ever taken from the judgment of the court rendered January 31,1939. The matters presented by the briefs pertain only to the questions of law involved. On its own motion this court has raised the question whether it has jurisdiction. Appellate jurisdiction of this court is only that conferred by statute (Const, art. 3, sec. 3). It is clear the only judgment, order or decision from which an appeal has been taken is that denying the motion for a new trial. Under G. S. 1935, 60-3001, a new trial is defined to be a reexamination in the same court of an issue of fact. The only purpose a new trial could serve would be to reexamine the issues of fact. In the present case the facts were stipulated; the only question presented to the trial court was one of law. The facts having been stipulated, they could not be reexamined. There is no provision of the code for a new trial of an issue of law. The filing of the motion could not extend the time in which an appeal must be taken from a judgment rendered on agreed facts. Considering such a motion as a request to the trial court to reexamine the questions of law involved, the motion is addressed only to the discretion of that court and the ruling on the motion is not in and of itself appealable. If there is to be an appeal it must be from the judgment which the appealing party believes to be erroneous. The matters here discussed are analogous to those considered in Tarnstrom v. Olson, this day decided (ante, p. 528), and what is said there need not be repeated here. (See, also, Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718; Atkins v. Nordyke, 60 Kan. 354, 56 Pac. 533; Nichols v. Trueman, 80 Kan. 89, 101 Pac. 633.) The notice of appeal in the case at bar referred to no judgment, order or decision from which an appeal lies, and the appeal is dismissed.

The opinion of the court was delivered by Thiele, J.; This was an action to recover amounts due on a contract for road improvements, and from a judgment against him the defendant appeals. The following statement will help explain the action. The defendant resides within the plaintiff township in Wilson county, Kansas, and owns a ranch in Elk county, the east line of the ranch being the line between the two counties. Running directly east from the ranch and in order are sections 23 and 24, township 29, range 13, and section 19, township 29, range 14; and just south of these sections are sections 26 and 25, township 29, range 13 and section 30, township 29, range 14, all in Fall River township. Prior to the events hereafter mentioned no east-and-west road had been opened between sections 23 and 24. To the east, between sections 24 and 19 on the north and sections 25 and 30 on the south, a township road was in existence, but was poorly maintained- and not much traveled. Omitting allegations not now important, plaintiff’s amended petition alleged that on July 13, 1935, the defendant, desiring to have a public highway to connect his ranch with the existing highway one mile to the east, petitioned the county commissioners to lay out, open and improve a public highway along the south side of section 23, and on view the county commissioners denied the petition; that thereafter defendant proposed to the township board of Fall River township that the township build the road, and that board concluded the proposed road was not of sufficient public benefit to warrant the expense and refused; that thereafter defendant, because of the financial benefit and personal convenience it would be to him, told the township board that the proposed road heretofore described could be combined with the improvement of the two miles of township road above mentioned, and constructed as a Works Progress Administration project if Fall River township would sponsor the project and it would not cost it anything, as he would pay for all material and work which the township would have to furnish if it sponsored the project, and that pursuant thereto defendant entered into contracts with the township. The first was a memorandum which stated it was to be supplemented by one prepared by a lawyer agreeable to the township board. The second read: “New Albany, Kansas, December 31, 1935. “Agreement “Between W. D. Pratt' and the Township Board of Fall River Township wherein W. D. Pratt agrees to pay any and all of sponsor’s part of expense in connection with W. P. A. project for three miles of road work in Fall River township, said roads being numbered 83, 60 and 62 in said township, except ninety-six hours for grader and tractor which trustees are to furnish, but it is also agreed Pratt is to pay on this $100 for labor and gasoline to said Fall River township; said township to maintain road after its completion. “This agreement to be binding on the heirs, executors, administrators and assigns of said W. D. Pratt. “This agreement executed in duplicate on this the 31st day of December, 1935. ' “W. D. Pratt, Party of the First Part. Township Board op Fall River Township. By A. P. Lindelow, Trustee, Elvin Butner, Treasurer, “Exhibit B. J. R. Wharton, Clerk.” That pursuant thereto and by reason thereof the plaintiff sponsored the project and the three miles of road were improved; that the Works Progress Administration, acting as sponsor’s agent, prepared estimates of the labor, material, etc., that would probably be required, copies being attached to the petition; that in the performance of the project the plaintiff furnished materials and paid for services the sum of $464.88, an itemized statement being set forth; that the amount was due and unpaid. In a second cause of action the township sought recovery of $72.50 for use by defendant of the township’s machinery in constructing a private pond on defendant’s ranch. The prayer was for judgment for the two sums. We shall refer to the estimate of costs, etc., only to say they refer specifically to the three miles of road, estimate the sponsor’s contribution will be $998.63, and show that at the time the proposal was made it was stated that surveys had been completed, as well as final plans and specifications. The gist of defendant’s answer was that his agreement was that he would sponsor the project as submitted in the aggregate of $998.63 and pay the further sum of $100 for labor and gasoline used in operation of the tractor and grader; that, without consulting him, plans and specifications were changed by plaintiffs and additional expenses incurred without his consent. He alleged he had fully complied with his part of the agreement and was not indebted. By way of offset he alleged he had furnished certain tools which had not been returned to him, and certain materials (apparently claimed excesses) and he sought to have $175.91 offset against any amount due from him. At the trial considerable evidence was offered from which it appears that actually there was not much dispute as to what occurred. Defendant did not dispute the articles of material and service were not actually used, only that they exceeded the estimate made before the project was commenced and he had not agreed to any changes; that the tractor was used more than ninety-six hours, although it appears inferentially he did not pay at all for its use; that more wire and posts for fences were used than the specifications called for. He stated he had agreed to- the substitution of gravel for shale to cover the road and that it doubled the cost of that item. The abstract does not disclose any evidence in defense of plaintiff’s second cause of action. The trial court, after hearing the testimony, rendered judgment in favor of plaintiff for the full amount prayed for. Defendant’s motion for a new trial was overruled and this appeal followed. Appellant complains of the admission in evidence of a document referred to as the “white paper” which seems to have been directions from the county engineer to the W. P. A. foreman. The objection now made is that defendant had never seen it and that it was not a part of the plans and specifications nor attached to the proposal. It may be here observed the abstract does not show any objection to its being received. It shows an estimate of quantities of ma terials and labor to be used. Appellant’s argument seems to be that because of it the highway was widened, thereby increasing the cost. The result does not follow. The proposal called for grading, drainage and surfacing of three miles of road. There is no dispute that everyone involved knew one-third was new construction, and the defendant himself testified the remainder was in bad condition; when the contract was made the plans and specifications were complete, but all items of cost were clearly estimates and not final. It does not appear that appellant was prejudiced even had he made timely objection. Without going into detail, it may be said the remainder of appellant’s contentions center around the proposition that more materials were used and more work was done than the proposal called for, and therefore the contract was so indefinite that defendant, who only contracted to pay the debt of another, should not be held liable. The contentions cannot be sustained from the record. The proposal, in all its parts, indicates that the itemized costs of labor and material, and the sponsor’s share thereof, are estimates only. The defendant’s contract was made after the estimates were prepared. In that contract he did not limit his liability to the estimated sponsor’s contribution to the project. On the contrary he agreed to pay “any and all of sponsor’s part of the expense,” etc., and it is a balance of that part which appellee sought to recover. Plaintiff’s evidence sustained its contention. Defendant did not sustain his contention the plans and specifications were changed to cover additional work not originally contemplated, nor did he show the materials furnished and the work done were beyond the terms of the proposal. We discern no error in the trial court’s judgment, and it is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This was an action to recover on an alleged oral contract for services rendered by a daughter to her parents. Daughter and parents are dead, and the administrator of the daughter’s estate filed a claim against her father’s estate in the probate court. The administrators of the father’s estate resisted the claim and the probate court rejected it. The matter was appealed to the district court, where it was tried before a jury, which failed to reach a verdict. The administrators of the father’s estate now appeal to this court on the only question open to our review — the sufficiency of the claimant’s evidence to require its submission to the jury over defendants’ demurrer thereto. The record includes matters of fact extending over a long period of years. The late L. D. Hodge, of Rice county, was a man of substantial means. He and his wife lived to a great age. He died testate on August 6, 1937; his wife died two days before he did. They were survived by two sons, and one daughter, Mrs. Florence Bishop. She survived her father some five months, and died on January 12, 1938, at 65 years of age, leaving a husband, Warden Bishop, an adopted son, and an adopted daughter, Mrs. Max Walton. The daughter, Florence, had married Warden Bishop many years ago without the approval of her parents, and a lifelong antipathy existed between L. D. Hodge and his son-in-law. This antipathy had even provoked personal violence, and civil litigation between them reached this court a quarter of a century ago. (Hodge v. Bishop, 96 Kan. 419, 151 Pac. 1105; id., 101 Kan. 152, 165 Pac. 644.) Warden Bishop and his wife lived on a farm in Rice county. In 1931 Mrs'Bishop became afflicted with cancer, for the cure or alleviation of which she entered a hospital in Hutchinson. Her doctors discovered her condition to be so serious that no attempt was made to remove the cancerous growth from her body, and she was professionally advised to place herself under the care of a Doctor Trueheart, of Sterling, for radium and X-ray treatments. Her father and mother resided in Sterling, and she entered their home and so remained as a member of their family until their deaths in August, 1937. She continued to reside at their home until her own death some five months subsequently. The circumstances under which she took up her abode in her father’s house and lived therein with her parents are the subject of the present controversy. Five days before her death Mrs. Bishop, through her attorneys, filed a verified claim against her father’s estate for $7,000, on the alleged ground that pursuant to the réquest of her father and mother, on or about July 29, 1931, she left her home where she was living with her husband and went to the home of her parents and thereafter continuously lived with, cared for, looked after, and nursed them until their deaths. Her verified claim further alleged that at the time her parents made that request they “orally agreed with your claimant that she would be paid a reasonable compensation, or financial remuneration, for her services in caring for and nursing” them. She further averred that at “said time” and continuously thereafter she devoted all her time and attention “doing the housework, nursing and caring for her said parents, . . . purchasing provisions, . . . from said 29th day of July, 1931, until the dates) of . . . [their] . . . deaths”; and that her services so rendered were reasonably worth $100 per month, or a total of $7,000. Following Mrs. Bishop’s death, her husband, as her administrator, filed a revived and substituted claim and demand in behalf of her estate, predicated substantially on allegations of fact similar to those contained in Mrs. Bishop’s claim — an oral contract between her and her parents made on or about July 29, 1931, wherein they agreed that she would be paid “a reasonable compensation, or financial remuneration” for her services in caring for and nursing her parents; and that pursuant thereto she had rendered the services to her parents as requested by them until their deaths, and that such services were reasonably worth $100 per month, or $7,000. This claim and demand was rejected by the probate court, and an appeal to the district court followed. In the latter court the executors, U. S. Hodge and William Hodge, filed an answer denying the existence of any such contract as alleged in the claimant’s exhibit of demand, denying that their sister had rendered any services whatever to their parents for which she expected compensation. The executors alleged that the claim ostensibly filed by their sister against her father’s estate a few days before her death was merely the claim of her husband, Warden Bishop; that during the period covered by the claim Florence Bishop suffered from an incurable malignant cancer; that her husband had induced and forced her to sign such claim at a time when she was suffering intense agony and was under the influence of drugs and narcotics and she did not realize what she had signed. Answering further, the executors alleged that L. D. Hodge died testate, and in a codicil to his will provisions were made for Mrs. Florence Bishop, as follows: “3. I give and devise to my sons, U. S. Hodge and Wm. Hodge, as trustees, the sum of ten thousand ($10,000) dollars which sum they shall invest in interest bearing notes secured by first mortgage on real estate, not more than 40% of the value of such real estate to be loaned upon any tract of land and all the interest arising from the said sum of ten thousand ($10,000) dollars, I direct them, as such trustees, after paying the taxes thereon, to pay to my daughter, Florence Bishop; the said interest to be paid semiannually when collected or deposited in the bank to her credit and said payments shall be made as long as she lives. At her death, if she have any children of her body surviving her, the interest upon the said sum of ten thousand ($10,000) dollars shall be paid to the said children or for their support and maintenance until they become of age in the same way and manner as is provided for the payment to my daughter. “4. At the death of my daughter, if she leave no children of her body, or when such child or children arrive at lawful age, I give and devise the said ten thousand ($10,000) dollars to my sons, IT. S. Hodge and Wm. Hodge. "6. The bequest herein made to my daughter, Florence Bishop, is made upon the express condition that she shall waive all claim of any real estate or personal property which I now own or of which I may die seized, and if she makes any claim to any such property, real or personal or attempts to contest or set aside my last will and testament or this codicil, or if she claims to own any of the real estate which I now own or that I gave her such real estate, she shall forfeit all claim to the bequest of ten thousand ($10,000) dollars as herein specified.” The executors further alleged that Florence Bishop was fully advised of the terms of the will, and that on or about September 10, 1937, she and they discussed its terms and provisions, and all three agreed that it would take considerable time to invest the money as provided in the bequest in her behalf, and that she agreed to accept the sum of $50 per month and the use of the house in Sterling for her natural life in lieu of the investment of the trust fund, and that the same would be deemed a full compliance with the last wills and testaments of L. D. Hodge and wife; and — • “That it was the understanding of said executors that such was also in full settlement of all claims which the said Florence Bishop might have; that at no time during these negotiations did the said Florence Bishop mention having any claim; that such claim was unknown and unthought of by the said exec utors . . . and that thereafter she was paid and received from said executors under this arrangement, the sum of $495.26, together with rent upon the house at Sterling to the time of her death; (that without this settlement the said Florence Bishop would have received nothing); that therefore, the said Florence Bishop and the claimants herein are estopped from making the claim set forth herein.” The executors answered further that although there was no contract for services as averred in the claimant’s exhibit of demand and none of any consequence was ever performed, L. D. Hodge and wife nursed and cared for their daughter during the period set forth in said claim; they paid for radium and X-ray treatments for her, advanced to her spending money from time to time; and following their deaths she advised the executors that she had in her possession $210 in money belonging to her parents and that they allowed her to keep that sum at the time of their agreement with her on or about September 10, 1937. When the cause came on for trial the evidence adduced in claimant’s behalf tended to prove that in the summer of 1931 Mrs. Florence Bishop, after staying or visiting with her parents “three or four weeks,’’.was about to return to her own home when the following incident occurred, according to the testimony of Mrs. Bishop’s stepdaughter, Mrs. Max Walton, who was the principal witness for the claimant: “I overheard a conversation between my mother [Mrs. Bishop] and L. D. Hodge with reference to her staying. . . . Grandma Hodge was in on that conversation herself. You see, grandpa could not hear, and we had to write to him whenever we wanted to converse with him. . . . Mom Bishop was preparing to go back out to the farm where her home was . . . and grandma and grandpa suggested they would like to have her stay with them, and they said that they would make it worth her difference, and pay her well if she would stay there with them and continue to take her treatments. . . . She told mom that if she would stay with them, with grandpa and grandma, that they would pay her well, and then she wrote the essence of that to grandpa, and he said, ‘Yes, that was what he wanted.’ “Q. Did they say anything about how long she was to stay? A. Remain with them more or less — I don’t know that they said definitely, but stay with them from then on out. I heard several conversations of this kind. There was nothing said about how long she was to stay, ‘just that she would stay, of course as long as she was to take treatments, and the treatments seemed to continue on.’ Mrs. Bishop did take treatments. I recall that she took three or four. As time went on she ceased to make preparations to go home ‘because ' it became more or less of an understanding that she was to stay there and be more or less of a companion to them and take care of them.’ The first conversation took place shortly after she commenced to recover, and would prob ably be three or ¡our weeks after she moved up there. I cannot tell when the next conversation took place. In my best judgment the second took place perhaps two or three weeks after the first. The language of the second was ‘of the same nature as the first one, that she would remain there and take care of them, and they would pay her well. They were still insistent she should stay there and take her treatments and more or less take care of them.’” (Italics ours.) Another witness for plaintiff, May Leak, overhead the same or a similar conversation between mother (Mrs. Hodge) and daughter (Mrs. Bishop): “Q. And this conversation you heard, you heard Mrs. Bishop say she will see whether she wanted to stay there or not, continue to [stay] there, and that she didn’t know whether she wanted to or not? A. She said, ‘I have got a home, Ma,’ and she says, ‘Well, we want you here, this will be your home.’ “Q. And ‘This will be your home, you can stay here, this will be your home?’ A. Yes, she said, ‘This home will be yours, and you will have plenty to take care of you when we are gone. We want you to stay here as long as we live.’” Mrs. Bishop never returned to her own home except for short-visits. A year or two after she took up her abode with her parents, the farm house in which she and her husband had resided was burned. Her husband fixed up living quarters for himself in a milk house on the farm, and doubtless a faithful wife would have cheerfully shared his lot thereat but for the controverted circumstances which caused her to stay with her parents — the inducement offered her to care for them in their old age or her own hopeless invalidism. There was evidence that Mrs. Bishop’s health did improve for a time under radium treatments, and it was shown that she was accustomed to take her father’s pension check to the bank, kept track of her parent’s bank account, ordered their groceries, attended to the payment of the household bills for gas, heat, light and water. Occasionally she helped her father to adjust his truss and rubbed him when he had a heart attack. Instances were also testified to by claimant’s witnesses to the effect that occasionally Mrs. Bishop had run the carpet sweeper, baked a pie, cooked a meal “when she was able,” scrubbed the floor, and she had been seen to “pull the hose in the yard a few times.” There was also testimony tending to show that Mrs. Bishop’s companionship to her parents was desired and appreciated by them, and that the mere matter of her personal services was not their principal concern, as they were well-to-do and could hire domestic help, and that as their aging years brought the usual infirmities they did hire such help. The foregoing summarizes the principal features of the evidence adduced to support the appellee’s claim against the Hodge estate. Was it sufficient to take the case to the jury as against the demurrer thereto? In ruling on this question we cannot give any consideration to testimony which tended to controvert or disprove the claimant’s allegations of fact. (Rosenfeld Co. v. Gleed, 110 Kan. 75, 202 Pac. 611; Crawford v. Southern Kansas Stage Lines Co., 145 Kan. 580, 66 P. 2d 601.) Counsel for appellants argue strongly against the reasonableness of the claim. But that argument must be addressed to the triers of fact; it serves no purpose in this appeal. Counsel for appellants also remind us of the rale of law which exacts a quality and standard of evidence to prove a daughter’s claim for compensation for services to her aged parents much higher than is requisite to prove an ordinary issue of fact between litigants, because there is a presumption that such services are filial and gratuitous, and not intended to be compensated in money (Nelson v. Peterson, 147 Kan. 507, 78 P. 2d 20). They also invoke the rule that to support an oral contract for compensation for such services the evidence to prove its existence must be clear and convincing and its terms definite and certain. (Heine v. First Trust Co., 141 Kan. 370, 41 P. 2d 767.) However, we cannot doubt that the jury was properly instructed on these phases of the law of evidence pertinent to establish this sort of a claim against an estate. Recurring to appellants’ contention that there was no evidence to prove the precise contract alleged in claimant’s exhibit of demand, and that the testimony of the principal witnesses for the claimant, Mrs. Walton and May Leak, showed clearly that the contract, if any, under which Mrs. Bishop was induced to stay, arose out of the offer and promise made by Mrs. Bishop’s parents, after she had been at their house three or four weeks and when she was about to return to her own home. Mrs. Walton’s testimony was that Grandma Hodge speaking for L. D. Hodge and herself said “they would like to have her stay with them, and . . . they would . . . pay her well if she would stay there with them and continue to take her treatments." May Leak’s testimony was that Mrs. Bishop said she didn’t know whether she wanted to stay or not, and Grandma said, “This will be your home, you can stay here, this will be your home. . . . This home will be yours, and you will have plenty to take care of you when we are gone. We want you to stay here as long as we live.” Mrs. Bishop did stay, and that fact is susceptible of an inference that she decided to do so in response to the offer and promise of her parents as testified to by Mrs. Walton and May Leak. We do not regard the variance between the oral contract alleged in the exhibit of demand and the one testified to by Mrs. Walton and Miss Leak as fatal to a recovery — if the latter was clearly established to the satisfaction of the jury, and we think its existence was a jury question. It is finally contended that if there ever was any such oral contract as alleged in claimant’s exhibit of demand, or any such oral contract as claimant’s evidence tended to prove, it has been fully performed and there has been no breach. It is urged that the claimed agreement that Mrs. Bishop was to have reasonable compensation or financial remuneration was generously performed by her parents in their lifetime and by their executors after their deaths, for as long as Mrs. Bishop survived them. It is argued that during the long interval of Mrs. Bishop’s invalidism she had a good home with her parents, that they provided for her, paid her radium and' medical bills, that they had made generous provision for her in their wills, and that when they died their executors permitted her to stay in the Hodge home and paid her $50 per month and made other generous payments to her or on her account. But even these considerations, if well proven, must be submitted to the jury for their consideration; they cannot be held at this inconclusive stage of the case to demonstrate that the trial court committed error in overruling the demurrer to the claimant’s evidence in support of the exhibit of demand which the probate court rejected and which the trial court-held was sufficient to take the case to the jury. The judgment is affirmed.

The opinion of the court was delivered by Beier, J.: Plaintiff Joseph Natalini brought this medical malpractice action against defendant Blake A. Little, M.D., for failing to diagnose Natalini’s lung cancer. At trial, Natalini was still alive and was expected to survive approximately 8 more months. Although he outlived that prediction, he has died since this court heard argument on this appeal. The issue before us is whether the jury properly awarded wrongful death damages to Natalini’s wife and adult children. We hold that no such damages were available in Natalini’s medical malpractice action and reverse and vacate that portion of the jury’s award. Our holding on this issue eliminates the need to address Little’s alternative argument that the statutory cap on noneconomic damages was exceeded. Natalini was referred to Little in March 1996 after detection of two nodules in Natalini’s right lung. Little and Natalini agreed to have the nodules monitored with serial chest computerized tomography scans (CTs), which were performed in March, April, May, and November of that year. The November CT revealed a new, third nodule. At an appointment on December 2,1996, Little ordered another chest CT within 2 months. Natalini went to Dr. Douglas Weddle on December 19,1996, to have the CT performed; and a member of Weddle’s staff called Little’s office to clarify Little’s instructions. Little said that a chest x-ray instead of the CT would be acceptable. The chest x-ray was taken in February 1997. Natalini did not see Little again until July 1998, when Weddle referred him back. Little then referred Natalini to a cardiothoracic surgeon, who diagnosed Natalini’s lung cancer. Natalini filed this action on July 14, 2000. Little admitted he had failed to meet the standard of care after the November 1996 CT, acknowledging he should have followed up with his patient based on the results of that scan and of the February 1997 x-ray. During trial, in June and July 2002, Natalini was 59 years old. His cancer had spread, and neither side in the case expected him to survive until Christmas of that year. In contrast to Natalini’s prospects, the additional life expectancy of a healthy white male his age was 19.7 years. Natalini, of course, had alleged that Little’s negligence would be the cause of his premature death. Natalini sought damages for his personal injuries, including pain, suffering, disability, mental anguish, loss of enjoyment of life, past and future medical bills, and past and future loss of consortium for his wife. None of those categories of damages is in issue on this appeal. Natalini also claimed damages for his family as a result of his premature death: bereavement; mental anguish and suffering; loss of protection, advice, counseling, attention, and a complete family; and loss of pension and household services. The defense has con- sistendy argued that these damages could be recovered by Natal-ini’s family only in a wrongful death action. Lithe first sought to exclude evidence of these damages and objected to plaintiffs proposed jury instructions. He termed this part of the action an “anticipatory wrongful death” claim, on behalf of the plaintiff s family. He also argued that the claim would lead to noneconomic damages in excess of the statutory cap of $250,000. The district judge rejected Little’s arguments. As a result, the jury was instructed: “In determining the amount of damages sustained by the family of Joseph N atalini, you should allow the amount of money which will reasonably compensate them for the damages resulting from the premature death of Joseph Natalini. . . . [You should allow an] amount which you believe to be equivalent to the monetary benefits or compensation the family of Joseph Natalini could reasonably have expected to receive from Joseph Natalini during his previous anticipated life expectancy.” 'The individuals you may find sustained damages are: . . . Judith Natalini, wife, Joseph Natalini, Jr., Brian Natalini, Steven Natalini, Mark Natalini, and Brenda Natalini Robinson.” The jury found that Little’s conduct would result in Natalini’s premature death and awarded the following damages to these family members: Noneconomic loss $600,000.00 Economic loss $349,005.00 TOTAL DAMAGES SUSTAINED BY JOE NATALINI’S FAMILY $949,005.00 The award of noneconomic damages to the family members was remitted to $250,000, pursuant to K.S.A. 60-19a02. After trial, Little moved to modify the judgment or for a new trial, arguing again that the district judge improperly permitted the jury to consider “the type of damages that may only be recovered in a wrongful death action, in favor of persons who are not parties to the action, in connection with a person who was still alive, at the time of trial.” The district court again rejected Little’s arguments. On appeal, Natalini’s counsel has not disputed that he sought a separate award of damages for members of his client’s family to avoid the otherwise harsh effect of the intersection between K.S.A. 2003 Supp. 60-513(c), which includes a statute of repose for med ical malpractice lawsuits, and K.S.A. 60-1901, which outlines the requirements for a Kansas wrongful death action. K.S.A. 2003 Supp. 60-513(c) reads: “A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.” (Emphasis added.) K.S.A. 60-1901 reads: “If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived . . . against the wrongdoer.” (Emphasis added.) Neither of these statutes is unclear or ambiguous. In circumstances like Natalini’s, even if a malpractice plaintiffs premature death is highly likely to be caused by the malpractice, plaintiffs survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A. 2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, he., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)’s repose language would have barred the injured patient’s own lawsuit before his or her death. See K.S.A. 60-1901; Crockett v. Medicalodges, Inc., 247 Kan. 433, 440, 799 P.2d 1022 (1990) (if injured plaintiff s claim time barred before death, claim of heirs also barred); Mason v. Gerin Corp., 231 Kan. 718, Syl. ¶ 1, 647 P.2d 1340 (1982) (K.S.A. 60-1901 requires “existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right of action for wrongful death”). Natalini’s counsel urges us to fashion a way around the combined effect of 60-513(c) and 60-1901 here. He raises the specter of can cer patients foregoing treatment to ensure they will die in time to allow their families to bring a wrongful death suit. He asserts that advances in medical science have enabled us to maximize the length of such patients’ lives and that the law has not kept pace with these advances. Even if we agree, it is not this court’s role to rewrite statutes but to interpret them. Natalini does not seek interpretation; he seeks wholesale revision. We cannot oblige. The legislature is the branch of our state government endowed with the exclusive power to amend statutes, and it is to the legislature to whom arguments about the dilemma faced by families such as Natalini’s should be addressed. See State ex rel. Stephan v. Finney, 251 Kan. 559, 583, 836 P.2d 1169 (1992). Natalini’s counsel also argues that permitting the family to recover in Natalini’s action is no different from allowing a personal injuiy plaintiff to recover on behalf of his or her spouse for loss of consortium. We disagree. A spouse’s loss of consortium has long been recognized as recoverable in an injured person’s suit against the tortfeasor. See K.S.A. 23-205; Klaus v. Fox Valley Systems, Inc., 259 Kan. 522, 528-29, 912 P.2d 703 (1996). In contrast, neither Kansas common law nor Kansas statutes have recognized such an element of damages to compensate adult or even minor children of an injured plaintiff. Rather, Kansas is among the states which have rejected it. See Szarwark, Recovery for Loss of Parental Consortium in Non-Wrongful Death Cases, 25 Whittier L. Rev. 3,5-6 nn. 11,12 (2003) (Kansas’ refusal to recognize child’s loss of consortium action criticized despite consistency with that of courts in Arkansas, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina). Children also may not bring an independent cause of action in Kansas to recover for injuries to a living parent. See Klaus, 259 Kan. 522-23 (answering certified question; no cause of action despite recognition that “[wjhen the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious”); see also Hoffman v. Dautel, 189 Kan. 165, Syl. ¶ 1, 368 P.2d 57 (1962) (“[a] minor child has no cause of action for damages arising out of the disability of its father, caused by negligence of the defendant, with attendant loss of acts of parental guidance, love, society, companionship and other incidences of the parent-child relationship”). Natalini’s counsel also argues that the award to Natalini’s family in this case is analytically indistinguishable from allowing a plaintiff to recover for future economic or noneconomic damages flowing from a past injury even though the damages may never materialize. Again, we disagree. Allowing recovery of future economic or noneconomic damages reasonably likely to arise from an already certain negligent act or omission in the fast is fundamentally different from allowing recovery of damages arising from a death whose future timing and causation cannot be certain. In the first instance, the amount of the damages that will be suffered is not precisely known but the event that caused any such damages is. In the second instance, the event is not precisely known. It may or may not occur at all, much less in the manner expected. In his brief, Natalini’s counsel argues that the fact that his client was the real party in interest to bring the malpractice action also made him the real party in interest to pursue damages to be caused by his own future death. This argument is without merit. Kansas’ wrongful death statutory scheme identifies the proper plaintiffs for pursuit of such damages. See K.S.A. 60-1902. The decedent, or, in this case, the anticipated decedent, is not among them. The briefs further assertion that the members of Natalini’s family were actual parties to this action also is without merit. Nothing in the record before us supports this assertion. The brief s additional argument that the recovery of wrongful death damages in this suit protected Little by preventing the Na-talini family from pursuing more than one lawsuit or splitting its cause of action also is without merit. There was always more than one cause of action possible as a result of Little’s negligence, each with different prerequisites and available damages. This was not a function of the Natalini family’s choice but of Kansas law. Up until 2 years after his injuiy became reasonably ascertainable, as long as that period did not exceed 4 years after the negligent act, Natalini had a medical malpractice action. Had he died as a result of Little’s negligence within the 4 years, a wrongful death action also would have been possible. His attempt to recover wrongful death damages for his family while he lived did not protect Little. In fact, it eliminated the protection Little already enjoyed under the intersection of K.S.A. 2003 Supp. 60-513(c) and K.S.A. 60-1901. Finally, Natalini’s counsel has urged us to affirm the award to Natalini’s family as a matter of equity. We admire his passion on behalf of his client’s cause but cannot do so. The legislature specifically selected the 4-year time frame of 60-513(c), and wrongful death actions are completely creatures of statute. There is clear and unambiguous statutory law that binds us, and we cannot ignore it. In sum, although we agree with plaintiff that a district judge has a responsibility to instruct the juiy on a party’s theory of the case if the theory is supported by evidence, Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d 1163 (2000), this rule tells only half of the story. Evidence may be all that is required to establish facts, but the facts must fit a cause of action recognized in Kansas’ common law or statutes. The instructions given jurors must fairly inform them of the law governing the case. There was no law supporting the instructions given here to permit Natalini’s wife and children to recover damages expected to be caused them by the future wrongful death of their husband and father. He could not recover such damages on behalf of his wife and adult children in a medical malpractice action pursued while he was still living. Reversed. The jury’s award of economic and noneconomic damages to plaintiff s family members is vacated.

The opinion of the court was delivered by Nuss, J.: Charles D. Brown appeals the district court’s denial of his motion to file out of time his notice of appeal from the court’s earlier denial of his motion for postconviction relief under K.S.A. 60-1507. Our jurisdiction is under K.S.A. 20-3018(c), transfer from the Court of Appeals upon our motion. The sole issue on appeal is whether the court erred in refusing to allow Brown’s appeal to be filed out of time. Because of the unique circumstances of the case, we hold the court erred. Accordingly, we reverse and remand to the district court with instructions to allow the appeal to be filed and to promptly forward the case to the Court of Appeals for review of the denial of Brown’s 1507 motion. FACTS On March 3, 1998, Brown was convicted of three counts of aggravated criminal sodomy and three counts of aggravated indecent liberties. He timely filed his notice of appeal, and the Court of Appeals affirmed the district court in an unpublished decision, State v. Brown, No. 81,249, filed July 30, 1999. On July 28, 2000, Brown then filed a pro se motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of trial counsel. Specifically, he claimed evidence of his victim’s prior sexual abuse should not have been excluded under the rape shield statute. In September 2000, the district court appointed the regional public defender’s office to represent Brown on his 1507 action. Attorney Shawn Elliott was assigned the representation and participated in the hearing on December 8, 2000, where the district court denied the 1507 motion. The district court held that Brown’s allegation of ineffective assistance of counsel either involved mere trial error that should have been or was raised on direct appeal or lacked adequate support to warrant a hearing. The journal entry denying the relief was filed on June 26, 2001. Over 2 years later, on June 30, 2003, Brown wrote a letter to the Commission on Judicial Qualifications (Commission) complaining that the original trial judge had taken no action on the 1507 motion he had filed approximately 3 years before. The Commission’s response and a series of letters throughout the balance of the summer established that Brown had been unaware of Elliott’s assignment as his counsel; of the December 8, 2000, hearing; of tire denial of his motion; and of his right to appeal. Elliott conceded after reviewing his file that it appeared he had “failed to . . . inform Mr. Brown of the outcome of his hearing and his appeal rights.” On August 26, 2003, Elliott filed a motion to permit notice of appeal out of time on Brown’s behalf. That same day, Brown mailed a similar pro se motion and his notice of appeal out of time, which were timely filed. On September 3, 2003, the district court heard arguments and denied the motion, citing Robinson v. State, 13 Kan. App. 2d 244, 767 P.2d 851, rev. denied 244 Kan. 738 (1989). Brown promptly filed his notice of appeal. ANALYSIS: Brown essentially argues that because his appointed counsel failed to timely inform him of his right to appeal under K.S.A. 60-1507(d), he should be allowed to file the appeal out of time pur suant to notions of due process and fundamental fairness and per State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Among other things, the State argues in response that Ortiz does not apply; that there is no constitutional right to effective assistance of counsel in 1507 motions; that Robinson v. State, 13 Kan. App. 2d 244, controls; and that although there is a statutory right to appeal a 1507 motion, it is subject to the deadlines contained in K.S.A. 2003 Supp. 60-2103 which have long since expired. We agree with Brown. We acknowledge that there is no constitutional right to effective assistance of legal counsel on collateral attacks because they are civil, not criminal, actions. See Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980); Robinson v. State, 13 Kan. App. 2d 244. For that reason, the Robinson court rejected its movant’s argument, which is virtually identical to Brown’s; “When appealing the dismissal of a motion filed pursuant to K.S.A. 60-1507, a petitioner has no due process right either to counsel or to the effective assistance of counsel. Therefore, petitioner’s due process rights are not violated when his appeal from the dismissal of his 1507 motion is dismissed due to failure of counsel to timely perfect the appeal.” 13 Kan. App. 2d 244, Syl. ¶ 4. As pointed out by Judge Greene’s dissenting opinion in McCarty v. State, 32 Kan. App. 2d 402, 83 P.3d 249 (2004), however, under certain circumstances Kansas does provide a statutory right to counsel on collateral attack. See 32 Kan. App. 2d at 406. K.S.A. 2003 Supp. 22-4506(b) provides: “If the court finds that the petition or motion [e.g., 1507] presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided in K.S.A. 22-4504 and amendments thereto, the court shall appoint counsel from the panel for indigents’ defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents’ defense services, to assist such person ....” (Emphasis added.) See also State v. Andrews, 228 Kan. at 375 (“[Ojur statutes provide that an indigent defendant is entitled to counsel ... in habeas corpus proceedings and motions attacking sentence under K.S.A. 60-1507.”). Moreover, K.S.A. 2003 Supp. 22-4522(e)(4) suggests certain standards of competence are required for appointed counsel. It provides that the State Board of Indigents’ Defense Services “shall . . . adopt rules and regulations ... for the guidance of appointed counsel . . . including . . . qualifications, standards and guidelines for . . . appointed counsel.” As Judge Greene argued in his McCarty dissent: “For this court to recognize that an indigent has a statutory right to counsel, but then refuse to require some modicum of competence by such counsel, seems repugnant to the obvious legislative intent.” 32 Kan. App. 2d at 408. Not surprisingly, other jurisdictions agree that some standard is required. In Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965), the Tenth Circuit held: “Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.” (Emphasis added.) See Lozada v. Warden, 223 Conn. 834, 838, 613 A.2d 818 (1992) (when statute provides for appointment of counsel for an indigent person “ ‘in any habeas corpus proceeding arising from a criminal matter. . . .’ It would be absurd to have the right to appointed counsel who is not required to be competent.”); contra Ex parte Graves, 70 S.W.3d 103, 114 (Tex. Crim. App. 2002) (statutory right to competent counsel in habeas proceedings concerns only the initial appointment of counsel and continuity of representation rather than the final product of representation). We agree with the Tenth Circuit: When counsel is appointed by the court in postconviction matters, the appointment should not be a useless formality. In the instant case, appointed counsel failed to notify his client of his appointment and of the hearing. Most important, he failed to notify his client of the denial of the 1507 motion and of Brown’s right to appeal by certain deadlines. Counsel’s failure to advise his client of the right to appeal — for over 2 years — cannot even meet the most minimal of standards, and the appeal must be allowed. Cf. State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982) (A late filing of direct criminal appeal is allowed “in the interest of fundamental fairness only in those cases where a defendant either was not informed of the rights to appeal or was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal.” [Emphasis added.]) Accordingly, to the extent Robinson and its progeny may hold otherwise, they are overruled. See McCarty v. State, 32 Kan. App. 2d 402, 83 P.3d 249 (2004); Holt v. Saiya, 28 Kan. App. 2d 356, 17 P.3d 368 (2000). Although not significant to our analysis, we note that our adoption of the State’s position would have left Brown with no remedy whatsoever. This is because Brown has no civil cause of action for legal malpractice against his appointed counsel unless he obtains postconviction relief. Canaan v. Bartee, 276 Kan. 116, Syl. ¶ 2, 72 P.3d 911 (2003). There, Canaan had been convicted of first-degree murder, aggravated robbery, and aggravated burglary, and attempted to establish ineffective assistance of counsel through a 1507 motion. The motion was denied, and we therefore concluded: “Canaan has not been successful in obtaining any form of postcon-viction relief.” 276 Kan. at 132. Consequently, his cause of action for legal malpractice was doomed. Similarly, in the instant case, if Brown is not allowed to file his appeal out of time, it is impossible for him to obtain postconviction relief. In turn, without that relief, he cannot pursue an action for legal malpractice. At oral arguments the State also argued that if this court ordered the appeal to be filed out of time, we could additionally decide that the district court correctly rejected the 1507 motion in December 2000. As mentioned previously, the district court held that the motion merely alleged trial error that should have been, or was, raised on direct appeal. See, e.g., Taylor v. State, 251 Kan. 272, 276, 834 P.2d 1325 (1992) (“A proceeding under K.S.A. 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.”). We decline the State’s invitation to review the district court’s factual and legal bases for its denial. Accordingly, the case is reversed and remanded to the district court with instructions to allow the appeal to be filed and to promptly forward the case to the Court of Appeals for its review of the denial of Brown’s 1507 motion.

The opinion of the court was delivered by Thiele, J.: Plaintiff filed a pleading entitled “Motion and Amended Petition,” seeking to have certain judgments vacated, set aside and held for naught. The demurrers of various defendants to this pleading were sustained, and the plaintiff appeals. The appellant’s motion and amended petition was filed in an action originally filed by her as plaintiff in which two certain judgments were rendered. The general basis of her claim for relief was that the judgments were procured by duress. Perhaps the issues involved may be better understood by a short recital of events which led up to the filing of the action in which the judgments were rendered. One George Schrader, of Saline county, had a family consisting of his wife Caroline, his sons Henry and George H., and his daughter Anna Johnson, the present appellant. He was the owner of a large amount of real and personal property. On February 25, 1919, he made a will. On May 7, 1919, he and his wife executed a deed to the two sons, conveying all his real estate but reserving to himself and his wife a life estate therein. He died December 6, 1919, and thereafter Anna Johnson brought an action to set aside the will and the deed on account of want of capacity to-make a will and because of undue influence. As a result of trial, judgment was rendered in her favor, and on appeal by the widow and sons the judg ment of the trial court was affirmed in this court on October 6, 1923. (See Johnson v. Schrader, 114 Kan. 341, 219 Pac. 269.) On October 9, 1923, Anna Johnson commenced an action against her mother, Caroline Schrader, and brothers, George H. Schrader and Henry G. Schrader, to partition the lands owned by her father in his lifetime. Without detailing all that happened in that case, it must suffice to state that on March 16, 1925, a judgment was rendered in the cause. On May 15,1925, plaintiff procured a modification to show that certain real estate claimed by her was not within the terms of the judgment. By a further order and judgment made May 29, 1925, the judgment of March 16, 1925, was vacated and set aside and it was adjudged that the mother and brothers were the owners of certain described real estate, and their title thereto was quieted. It is these two last-mentioned judgments which are the subject of attack. While the above action was pending and on October 26, 1923, Anna Johnson filed another action against her mother and two brothers seeking an accounting of the personal property of the father and for judgment for one-sixth of the amount thereof. After the issues were made up, by agreement of all parties on May 29,1925, this action was dismissed with prejudice and at the cost of plaintiff. Nothing further occurred until August 6, 1936, when Anna Johnson filed her petition in the real-estate partition action to have the judgments set aside. We need not notice that particular petition further. On June 27,1938, she filed the motion and amended petition now under consideration. Henry G. Schrader, defendant in the action, died July 21, 1935, and on motion of the appellant, his heirs and the administrator of his estate were made parties defendant. Motions to strike, to separately state and number and to make more definite and certain were denied. A demurrer was then interposed and sustained, and that ruling gives rise to this appeal. The motion and amended petition is long, consuming eighteen pages of the abstract. For our purposes it may be said it was charged that the two judgments are null, void and of no effect for reasons set out; that soon after the original petition in the action was filed, the defendants, realizing that plaintiff would secure a judgment against them, conspired to defeat her in securing such a judgment; that they conspired to injure her long before the filing of the petition, and in furtherance of the conspiracy made threats and performed acts of aggression against the welfare and lives of her and her family for the purpose of intimidating her and depriving her of her free will and of subjecting her to the will of the conspirators. After stating that Henry G. Schrader was a large man, weighing 250 pounds, of great physical strength and possessed of a violent and ungovernable temper, and a quarrelsome, domineering, selfish and greedy nature; that George H. Schrader was a large and powerful man, and that her husband was a small man, possessed of a mild and peaceful nature and disposition, the petition alleged fourteen specific instances of claimed misconduct, principally by Henry G. Schrader, but with knowledge, consent and subsequent approval of other defendants, covering a period from December 16, 1918, to some indefinite time in 1924. Most of the threats alleged were of harm to the husband. Others against her personally may be summarized : She was accused of having a child so that it could inherit and Henry would see that it didn’t; that the wives of Henry and George assaulted her with intent to commit an abortion, desisting only when they found she was not pregnant; that on December 6, 1919, the father died and Henry and George had procured his invalid will to be admitted to probate and themselves named executors and this worried her and convinced her that her property was being wrongfully taken from her. The amended petition also referred briefly to the suit to set aside the father’s will and deed, the result in this court and that thereafter the conspirators became furious with anger and Henry had to be restrained and this information was communicated to her. The amended petition then further alleged that following the decision in the supreme court she supposed the campaign of intimidation, oppression, etc., would cease, but it was kept up and she lived in fear of bodily injury and possible death to herself and family, and while in such state she agreed to the terms of a contract of settlement of her father’s property, to the judgments here attacked and to the judgment in the action for accounting of the personal property. That thereafter the threats continued, instances of November, 1925, and August, 1926, being detailed, and that she learned of the threats which “reinforced her state of terror which had continued at all times since about December 20, 1918”; that Henry G. Schrader died on July 21, 1935, and the main cause of the intimidation and duress having been removed, she was able in due time to prosecute the action. In another paragraph she alleged she was under duress for a long time before the making of the various settlements and until some months after the death of Henry G. Schrader; that in all of the matters in court her attorneys did not know she was under duress; that she was afraid to and did not tell them. After offering to do equity she concluded with a prayer that the two particular judgments be vacated, set aside and held for naught, and that she be given equitable relief. The defendants’ demurrers raised the questions hereafter discussed. Before taking up specific questions, we note appellant’s contention that portions of the record pertaining to the actions at law hereafter mentioned, and showing testimony received in those actions, are not properly before this court for consideration of the demurrer. Without elaboration, we may say that our consideration is limited to matters disclosed by the appellant’s amended petition and motion to vacate the judgments attacked. There is considerable difference of opinion between the parties as to the exact nature of the present proceedings, whether it was a motion to vacate a void judgment under G. S. 1935, 60-3009, or a petition to vacate a voidable judgment as provided in G. S. 1935, 30-3011, or a petition in the nature of an action seeking equitable relief. Without now determining which specific method appellant was seeking to follow, or whether she sought relief on any particular theory, it is to be borne in mind that this court said in Publishing House v. Heyl, 61 Kan. 634, 60 Pac. 317: “The code provides how and when a judgment may be vacated and a new trial obtained, and the procedure therein prescribed must be followed.” (Syl. H 1.) And see Railroad Co. v. Werner, 70 Kan. 190, 192, 78 Pac. 410; Railway Co. v. Osburn, 79 Kan. 348, 350, 100 Pac. 473; Blair v. Blair, 96 Kan. 757, 153 Pac. 544; Home Owners’ Loan Corp. v. Dalton, 148 Kan. 580, 581, 83 P. 2d 624; and cases cited to the same effect. Appellant first contends that the judgments were void, though the face of the record does not show the jurisdictional defect, but only suggests it. It is fruitless to discuss this proposition at length. The action out of which the judgments arose was instituted by the plaintiff to procure a partition of lands. The record shows that she filed her petition, the defendants filed their answers, and ultimately the judgments were rendered. That the district court of Saline county had jurisdiction of a cause of action to partition lands in that county cannot be doubted; that the parties to the action were properly before it is admitted by the record; that it had power’to enter the judgments complained of is not denied. If so, the judg ments were voidable and not void. What was there on the face of the record to suggest a jurisdictional defect? The inference seems to be that because of claimed duress a fraud was committed. The difficulty from appellant’s standpoint is that it was she who invoked the jurisdiction of the district court, not the defendants, whom she accuses of overwhelming her will by threats of violence. Whatever effect the alleged duress might otherwise have had, it is not claimed, indeed it could not well be, that she was compelled against her will to institute an action against the defendants to compel them to do some act which they would not voluntarily do. The extent of her claim is that because of the duress she agreed to the judgments. If the judgments may not be vacated on the ground they are void, may they be vacated for any other reasons? By G. S. 1935, 60-3007, provision is made whereby the district court has power to vacate its judgments in nine specific instances. Of these, only two seem to have any application whatever. The fifth provides for relief for erroneous proceedings against a person of unsound mind where the condition of the party seeking relief does not appear in the record. Appellant makes no claim she was of unsound mind. The other only applicable one is the fourth, which reads: “For fraud, practiced by the successful party, in obtaining the judgment or order.” Although we have cases holding that in applying the general statutes of limitation, fraud and duress are not the same, e. g., Bank v. Bay, 90 Kan. 506, 135 Pac. 584; if appellant is to have any relief under this section of the code, duress must be considered as the equivalent of fraud. The word “duress” is not used in the provisions of the code with reference to vacation of judgments. If duress as pleaded herein is not considered as a species of fraud, the code provides no relief. In order to obtain such relief it is necessary that the moving party file his petition asking appropriate relief and cause a summons to issue and be served. We may consider the pleading filed sufficient compliance. While the record makes no disclosure as to service of summons, the adverse parties answered. But still another provision of the code applies. Under G. S. 1935, 60-3008, it is provided that proceedings to vacate a judgment for fraud must be commenced within two years after the judgment was rendered. The petition was filed over ten years after the judgments involved were rendered, and considering duress as fraud, the bar of the particular statute of limitations has fallen. It would appear that under Blair v. Blair, 96 Kan. 757, 764, 153 Pac. 544, to vacate any voidable judgment, whether for fraud or any other reason — here duress —the petition to vacate must be filed within some one of the periods of time set out in G. S. 1935, 60-3008. Appellant contends, however, that her petition may be considered as one to invoke the common-law power of the court to vacate judgments obtained by fraud or collusion'. Her argument seems to be predicated largely on certain quotations and excerpts from Craig v. Craig, 110 Kan. 13, 202 Pac. 594. That case involved the right of the supreme court to set aside its own judgment procured by the fraud of the appellant in the supreme court, and not in the district court. In determining that matter it was held the supreme court by virtue of its statutory rule-making power could make any necessary rule to meet the situation involved, and also that it had an inherent-power, not dependent on legislation. Statements in that opinion must be read in connection with that holding. The matter of the effect of the above provisions of the code with reference to the power of a district court to vacate voidable judgments was not the issue and was not discussed. In Leslie v. Manufacturing Co., 102 Kan. 159, 169 Pac. 193, the question involved was the right of plaintiff to bring an independent action in the district court to set aside a judgment rendered in a city court while he was a minor, it being held that such an action would lie. Many of the other cases mentioned treat of the power of the court to set aside a void judgment, examples being Chambers v. Bridge Manufactory, 16 Kan. 270, 275; Hanson v. Wolcott, 19 Kan. 207, 209. Reliance is also placed on a quotation from List v. Jockheck, 45 Kan. 748, 749, 27 Pac. 184. Reference to that opinion will show it was on rehearing of the same case wherein it was held that where a petition was filed to vacate a judgment and an order was made vacating it temporarily, an appeal would not lie (id., 45 Kan. 349). The question of the right to bring a so-called common-law action, independent of the code to vacate a judgment procured by fraud, was not in issue in that case. But in what is said with respect to that right, it is recognized that it must be in proper time and form. The cases above reviewed are not controlling. It would appear that if the basis of appellant’s petition is fraud and collusion she must follow the statutory provisions of the code, and if they are applied, waiving all other questions for the present, the petition was filed too late. If it be assumed that duress in procuring a judgment is something different from “fraud,” as that term is used in the code of procedure, and that because there is no specific provision in the code with respect to duress the equitable powers of the court may be invoked, we are then confronted with the factual situation disclosed by the record. Although there is contention between the parties whether the acts alleged are legally sufficient to constitute duress, we shall assume for present purposes that duress is fully alleged. What does the record show? It shows that from a time in 1918 prior to the death of appellant’s father, her mother and brothers embarked on a campaign of threats and intimidation to deprive her of her expectancy in her father’s estate and after his death to prevent her receiving what she would have been entitled to had he made no will nor executed deeds to his sons. It is alleged that thereafter the threats continued and she was so overwhelmed that she was not able to exercise her own free will until some time after her brother’s death in 1935. But during the very time she alleged she was being intimidated and browbeaten by her brothers, mother and others, and shortly after her father’s death, she brought an action against them to contest the father’s will and to set aside deeds he had made to her brothers. In that petition there were no allegations of duress against her. That she was not then intimidated is evident. The district court knew, as this court knows, that a trial of an action of that sort has many of the elements of a free-for-all fight. She won in the district court and successfully contested the appeal of her. mother and brothers in this court. She certainly was not under duress then, for within four days after this court rendered its opinion in the suit above mentioned, she commenced an action to partition the real estate described in the deeds which she had successfully attacked. Not long after, she filed another action to force an accounting of the personal property of her deceased father and to recover her share. In neither of the petitions in these actions was there any allegation of duress. Later she seems to have settled those identical suits and it is the judgments in the first which she now seeks to have vacated. No one, court or otherwise, would be credulous enough to believe that because of duress she instituted any of the above actions. Rather, the conclusion must be that she brought them of her own free will and accord. She may not say she was under duress of the defendants when by her very acts she sought by prosecution of legal actions to appropriate to herself property which they would otherwise have had. To use a homely expression, she cannot blow hot and cold at the same time. Notwithstanding her amended petition contains recital of many occurrences that might show duress upon her by the defendants, it likewise shows affirmative action on her part against them absolutely inconsistent with any such claim. Considered on the theory that an attempt is made to state a cause of action in equity, or to invoke common-law powers of the court because the matters alleged do not come within the purview of the code of civil procedure, our view is that the amended petition discloses a situation wherein the petitioner is not entitled to the relief sought. By reason of our conclusions, it is not necessary that we discuss a number of other matters presented in the briefs. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This was an action to recover on a policy of life insurance. Payment was resisted on the ground that a material change had occurred in the insured’s condition of health between the time he applied for insurance and the time the policy was issued to him, and that he failed to advise defendant of that fact, thus defrauding the company. The cause was tried by a jury. Plaintiff, widow of Frank Levacich and beneficiary of the insurance policy, established her prima facie case in short order by offering the policy in evidence, together with a certificate of the insured’s death on July 20, 1936. The parties agreed that the required premiums had been paid and proofs of death duly submitted. Defendant took up the burden of defense, and directed attention to Levacich’s application for insurance, dated June 25,1935, wherein certain questions were answered. In one of these Levacich stated that his weight had neither increased nor decreased in the preceding two years. On June 27, 1935, Levacieh submitted to a physical examination by defendant’s medical adviser. The application and medical report was forwarded to defendant’s home office for action. Four days later, on July 1,1935, Levacieh called Dr. J. E. Barker to his home and told the doctor he was unable to swallow or retain food and was suffering from nausea and vomiting. Doctor Barker gave him a prescription. On July 15, Levacieh called at Doctor Barker’s office and stated that his condition had not improved, that he still could not swallow or retain food. Doctor Barker testified that he then suspected Levacieh might have some malignant affliction and advised him to go to a hospital. However, the doctor did not reveal his suspicion of malignancy to Levacieh, and the latter did not go to a hospital. On July 26, 1935, defendant executed the policy sued on. It is inferable that it was delivered within a few days thereafter, but the exact date of delivery was not shown. On August 2, Levacieh again called on Doctor Barker and reported no improvement in his condition. The doctor again advised him to go to a hospital. On August 20, Levacieh went to the Kansas University Hospital and was examined by Dr. I. F. Wilson, its instructor in surgery. This doctor testified that Levacieh told him he had been unable to swallow for four months and had lost forty pounds in the preceding two months. The hospital record was offered in evidence. It showed the history of Levacich’s case, which, in part, reads: “University of Kansas (Bell Memorial) Out Patient Department No. 124896 Name, Levacieh, Frank. Date, Aug. 20, 1935. History taken by Wilhelmy, Ellis, M. D., Unable to swallow, began 4 mo., '.came on suddenly. Has lost 40 pounds last two months. No trouble of similar nature before. August 27, 1935. Roentgenological findings. Conclusion: The change described is characteristic radiographically of a carcinoma at the lower end of the esophagus.” Doctor Wilson testified that he requested Levacich to enter the hospital, but he declined. Thereafter Doctor Barker saw Levacich occasionally until February 4, 1936. Then Levacich did enter the hospital. By that time his esophagus had completely closed. By heroic surgical methods and treatment he was kept alive until July 20, 1936, when he died. The jury returned a verdict for plaintiff and made special findings of fact which may be summarized thus: When Levacich made application for insurance on June 25, 1935, he did not know he was suffering from any disease that seriously affected his health; that Levacich told Doctor Wilson on August 20 that he had lost forty pounds of weight in the preceding two months; that his health was good on June 25, but not good on July 26, and that a material change in his health occurred between those two dates; and that he was first afflicted with carcinoma (which caused his death) after July 1,1935. The usual post-trial motions were made and overruled, and defendant appeals. The first contention is that the jury’s finding that a material change in Levacich’s health occurred between the date of his application, June 25, and the time of the delivery of the policy on or after July 26, and that his failure to make that fact known to the company on its delivery of the policy constituted a fraud which vitiated the policy. The provision which frequently appears in an insurance policy that it shall not be binding if it is delivered when the insured is not in good health was wanting in this policy. But defendant invokes a rule of law, the substance of which is that when an insurance policy is issued it is delivered in reliance upon the statements made in the application, like the theory of offer and acceptance. The theory is sound enough; but under Kansas law the statements contained in an application for insurance are merely representations —unless,, indeed, the instrument expressly declares them to be warranties. (Blades v. Insurance Co., 115 Kan. 120, 225 Pac. 1082; Day v. National Reserve Life Ins. Co., 144 Kan. 619, 62 P. 2d 925.) An equally potent rule, corollary to the above, is that false statements or answers to questions in an application for insurance touching an applicant’s condition of'health do not avoid the policy unless he knew or should have known the truth of the specific matters inquired about, and that he answered falsely or in bad faith. (Washington Life Ins. Co. v. Haney, 10 Kan. 525, syl. ¶ 5; Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 770, 44 Pac. 996; 37 C. J. 454 et seq. See, also, “Life Insurance Representations and Fraud,” in 6 J. K. B. 241-248.) Here, however, the jury’s special finding that Levacieh did not know he was suffering from any disease that seriously affected his health when he applied for insurance on June 25, 1935, takes that point out of this lawsuit. Moreover, there was no evidence that Doctor Barker made known to Levacieh his suspicion that some malignancy was at work on Levacich’s system. The record suggests that Levacieh was a foreigner of limited ability to speak or understand English. The company’s own medical adviser certified on June 27, 1935, that- Levacich’s appearance was good. The same expert testified that a person might be afflicted with cancer and in its early stages would possibly not know it. Even Doctor Wilson, the instructor in the university hospital, testified that— [A] “Man will never know he has a Cancer of the esophagus unless someone tells him and [he] could be suffering from it for a short time- and not know it and a man suffering from it in July not know it until August; he could apparently be in normal health in July and have the first symptoms in August. If the loss of weight is rapid, he is not likely to have pains very long.” Touching the assured’s loss of weight in the two months prior to August 20, that would be since June 20, and would average a loss of two-thirds of a pound per day. That would amount merely to three and one-third pounds between June 20 and June 25, the date of his application for insurance. Such a small loss of weight was scarcely an indication that on the latter date Levacieh knew or should have known that there was something serious the matter with him; and the same proportionate rate of loss of weight until the policy was delivered to him could only amount to a good talking point before a jury. It could not be judicially declared that Levacieh did know or was bound to know that his health had suffered a change material to the risk after his application and before the delivery of the policy so as to bring the case within the rule of Stipcich v. Insurance Co., 277 U. S. 311. A careful perusal of appellant’s brief, including its exhaustive citation of authorities, suggests nothing requiring discussion. No reversible error is made to appear, and the judgment is-affirmed.

The opinion of the court was delivered by Wedell, J.: This was an action on a promissory note, coupled with a proceeding in garnishment. The trial court rendered judgment on the note in favor of the plaintiff and against the principal defendants, O. M. Clayton and Lulu L. Clayton, his wife, in the sum of $1,002.93, but denied plaintiff the relief she sought by virtue of the garnishment proceeding, and from the latter portion of the judgment plaintiff has appealed.' The essential facts may be briefly stated as follows: The defendants, O. M. Clayton and Lulu L. Clayton, his wife, had executed and delivered to Herbert Miller a promissory note. Upon the death of the payee, Esther M. Chatterton was appointed administratrix of the Herbert Miller estate, and in that capacity she brought this action. The defendant, O. M. Clayton, was about to receive, as an heir, a distributive share of his father’s estate. The plaintiff caused a summons in garnishment to be served on E. C. Williams, administrator of the estate of Willis Clayton, on June 21, 1938. The summons was served immediately following the final order of distribution, but prior to the actual distribution, under which order of distribution the administrator was directed to deliver to the defendant, O. M. Clayton, his distributive share in the sum of $502.81. The garnishee defendant answered, stating, in substance: There had been served upon him in writing on April 18, 1938, a copy of an “assignment and transfer of interest,” from the defendant O. M. Clayton, to the Miller State Bank, of Miller, Kan. The assignment directed him to pay to that bank the distributive share of O. M. Clayton which should become vested in O. M. Clayton, as an heir of his father’s estate, and authorized the bank to collect and receive such distributive share. The Miller State Bank intervened in the garnishment proceedings. Upon a trial of the issues the court rendered judgment in favor of the intervenor and ordered and directed the garnishee defendant to pay the distributive share of O. M. Clayton to the clerk of the district court, and ordered the latter to pay the same to the intervenor. The appellant contends the assignment served no purpose as against her for the reason it conveyed no title, but, at most, constituted a license to the assignee “to wear assignor’s shoes,” and since the assignee did not receive possession of the property conveyed at the time of the assignment and failed to record the instrument, the assignment was without effect as to her. With those contentions we cannot agree. Any sort of right or interest in property, whether vested or contingent, may be the subject of barter and sale. (Knutson v. Hederstedt, 125 Kan. 312, 264 Pac. 41.) An expectancy is ordinarily assignable. (Clendening v. Wyatt, 54 Kan. 523, 525, 38 Pac. 792; 4 Am. Jur., Assignments, § 19.) No particular form or mode of conveyance is necessary to effect a valid assignment, if the intent to transfer and make over to another certain property is clearly established. (Brewer v. Harris, 147 Kan. 197, 201, 75 P. 2d 287.) The assignment in question reads: “For a good and valuable consideration, receipt of which is hereby acknowledged, I, O. M. Clayton, hereby sell, assign and transfer unto the Miller State Bank, of Miller, Kan., all of my right, title and interest in and to the personal property which I have in the above-named estate which may become vested in me by operation of law as an heir of the said Willis Clayton, deceased. “I hereby authorize the said Miller State Bank to collect and receive the same from E. C. Williams, administrator of said estate. I hereby direct said administrator to pay the same over to the Miller State Bank, and I further declare that this instrument is my receipt for the same.” The signer of the instrument clearly intended to and did effectually and presently sell his expectancy and transfer the title thereto. He did more. He directed the administrator to pay the fund to the intervenor and declared that the instrument should constitute his receipt for such payment by the administrator. In the very nature of the transaction, and under the law, intervenor could not have taken possession of the subject of assignment prior to the final order •of distribution. That fact, however, did not render the assignment invalid. Nor is there any statutory requirement in this state for the registration or recording of an ordinary chose in action. In an action such as this, a creditor in garnishment is not aided by the mere fact he did not have notice or knowledge of a previous assignment of the property or fund he seeks to reach. In Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210, it was said: “The general rule is that garnishment, like other proceedings in invitum, only affects the actual property, money, credits and effects of the debtor in the hands of the garnishee, and the rule relating to bona fide holders or purchasers without notice has no application.” (p. 105.) (Italics inserted.) See, also, Eggers v. Ross, 103 Kan. 812, 813, 176 Pac. 655; Rich v. Roberts, 103 Kan. 116, 117, 172 Pac. 996; Turner v. Williams, 114 Kan. 769, 772, 221 Pac. 267; Citizens State Bank v. Cheyenne Co. Comm’rs, 122 Kan. 302, 252 Pac. 228; 5 C. J., Assignments, § 162. The expectancy had been transferred by valid assignment to intervenor prior to the service of summons in garnishment, and the court properly held the claim of intervenor to the expectancy was prior and paramount to that of the appellant. In fact, appellant obtained no interest at all by virtue of the garnishment proceedings. He could not reach thereby what the defendant did not own. (See Curry v. Bunds, 145 Kan. 476, 481, 66 P. 2d 584; Schmidt v. Sullivan, 145 Kan. 627, 629, 66 P. 2d 548, and authorities therein cited.) The defendant had previously parted with his ownership and title, and of course the proceedings in garnishment could not restore that title. Appellant relies upon authorities from other states. Our own decisions adequately cover the contentions made and we need therefore not extend the discussion. Appellant next contends its demurrer to intervenor’s evidence should have been sustained. The contention is predicated upon the fact that in the course of the trial the assignment was at times referred to as security for the debt which defendant owed intervenor, and that it was therefore necessary for the validity of the assignment that it be recorded. The contention is too technical. The trial court did not construe the testimony as indicating the assignment was intended to be a mortgage, and neither do we. Furthermore, the instrument is before us and speaks for itself. It clearly was not a mortgage and cannot possibly be so construed. It conveyed a present and absolute title to the fund in question. Physical possession of the fund was postponed only to the date of final distribution. It could be and was referred to as security only in the sense that it made certain the application of the expectancy to the debt which the defendant, O. M. Clayton, had long owed the intervenor. The judgment is affirmed.

The opinion of the court was delivered by Allen, J.: On December 1, 1932, two bandits entered the furniture store of Louis Deutch in Kansas City. During the robbery Deutch was shot and killed. On November 9, 1937, the county attorney of Wyandotte county filed an information charging the appellant, Elijah Townsend, with the murder of Deutch. A trial was had, and on November 8, 1937, the jury returned a verdict of guilty. Appellant filed a motion for a new trial, and on January 15, 1938, this motion was sustained. A second trial was had. On July 7, 1938, the jury returned a verdict of guilty. Appellant filed a motion for a new trial. On May 31, 1938, after argument, the motion for a new trial was overruled, and the court entered judgment that appellant be confined in the state penitentiary for life. The appeal is from this judgment. No official transcript of the testimony and proceedings has been filed. Appellant has prepared and filed his own transcript, abstract and brief. The transcript consists of a narration of the statements and arguments of counsel and testimony of witnesses at the trial, as well as newspaper accounts of the tragedy. It contains a statement that “the following notes are of the actual proceedings in defendant’s trial and were compiled by a competent stenographer.” The abstract is based on this transcript. In this state of the record it is obviously impossible to review the case. We have, however, studied with attention the purported transcript, and think it may not be improper to examine certain of the points urged by appellant. Appellant contends that having been discharged on a preliminary hearing, such discharge was a bar to a subsequent preliminary hearing and trial. As the settled law of this state is otherwise, the point is without merit. (State v. Jones, 16 Kan. 608; State v. Curtis, 108 Kan. 537, 196 Pac. 445; State v. Badders, 141 Kan. 683, 42 P. 2d 943.) In State v. Jones, supra, it was held that a preliminary examination does not put the accused in jeopardy within the meaning of section 10 of the bill of rights. Appellant contends that as the previous verdict of guilty was set aside, he could not be again tried and convicted on the same charge. As above stated, after the verdict of guilty was returned by the jury on the first trial, appellant filed a motion for a new trial, which was sustained. It is the rule in this state that when a new trial is granted on the motion of a defendant in a criminal prosecution, the order setting aside the verdict and granting a new trial places the defendant in the same position as if no trial had been had. (State v. Hart, 33 Kan. 218, 6 Pac. 288; State v. Terreso, 56 Kan. 126, 42 Pac. 354.) The instructions set out in the counter abstract fully and clearly cover all the elements of the offense charged; that the law throws around the defendant the presumption of innocence, and requires the state to prove every material fact; that every presumption of law was in favor of his innocence, and that his guilt must be proven beyond a reasonable doubt. Appellant was found guilty by two juries, and the verdict returned at the last trial met the approval of the trial court. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Thiele, J.: This was an action to foreclose a mortgage on real estate, and from a judgment in favor of the plaintiff two of the defendants appeal. The following statement will tend to explain matters in controversy: William Brown, a resident of Osage county, died in 1907, leaving a will under which a large amount of real estate was devised to his sons, Frank Brown and Barnum Brown, in equal shares. We are not concerned with their various operations further than that in 1930 they consulted with each other with the idea of making a voluntary partition of the lands, which seems to have been fully agreed upon in 1932, but not fully consummated by the execution and delivery of deeds between them. While these negotiations were going on, Frank Brown and his wife borrowed from the Carbondale State Bank, predecessor in interest of the present plaintiff, the sum of $4,000 evidenced by a note dated March 16, 1931, and secured by a mortgage on Frank Brown’s undivided one-half interest in the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter, and the west half of the southeast quarter containing 160 acres, all in section 18, township 14, range 16 east in Osage county, Kansas, which was a portion of the lands devised by the father. Frank Brown died in 1933, leaving debts which caused his estate to be involved. Sometime thereafter Barnum Brown brought an action to quiet his title to the lands set off to him in the voluntary partition, the present plaintiff being a party defendant in that action. In that action the trial court made findings of fact and conclusions of law, the second and third of which read: “2. That the title of the plaintiff to the west half of the southeast quarter of section 18, township 14, range 16, is subject to the lien of the mortgage of $4,000 held by the defendant, the Topeka State Bank, upon an undivided one-half interest therein. “3. That the title of the plaintiff, Barnum Brown, to all of said real estate should be quieted, subject to the lien of said mortgage as above set forth.” And judgment was rendered in accordance. By reason of the denial of others of its contentions,' the Topeka State Bank appealed to this court from that judgment, but this court affirmed the ruling of the trial court. (See Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105.) It may here be observed that Barnum Brown filed no cross-appeal. Some months after the opinion was filed in the above quiet-title action, the Topeka State Bank commenced its action to foreclose its mortgage lien on the undivided one-half interest formerly owned by Frank Brown in the west half of the southeast quarter of section 18, township 14, range 16, the parties defendant including Barnum Brown and his wife, and the widow of Frank Brown. We need not notice the exact details, but the demurrer of Barnum Brown and his wife was overruled. Their amended answer made certain admissions as to the execution of the mortgage by Frank Brown, of a subsequent contract between his widow .and the plaintiff, to which reference will be made later, and denied generally. Affirmatively they alleged that plaintiff’s cause of action was barred by the statute of limitations, and that the in debtedness secured by the mortgage had been paid, and also plaintiff was estopped from maintaining an action on the mortgage. Plaintiff’s reply denied payment. As a result of trial, judgment as hereafter mentioned was rendered in favor of plaintiff, and defendants’ motion for a new trial having been denied, they have appealed to this court, the specifications of error covering the matters hereafter discussed. The action was tried upon the admissions made in the pleadings and the record in the partition case to which reference has been made. Plaintiff’s petition and supplemental petition alleged that on March 16, 1931, Frank Brown and his wife executed their note to the Carbondale State Bank for $4,000, secured by a mortgage on an undivided one-half interest in the 160 acres of real estate above described, and that by assignment the plaintiff became the owner and holder of the note and mortgage. An exhibit attached is a contract dated December 1,1937, between the plaintiff bank and Minnie Brown, as executrix of the estate of Frank Brown, deceased, and Minnie Brown, individually, by which she agreed to pay the bank $400 in cash and to convey it the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of section 18, township 14, range 16 (being the portion of real estate which her husband received in the partition), it being agreed the bank still had the right to foreclose its mortgage lien on all the lands described. She also agreed to pay the probate court costs and to grant an easement, not now material. The bank acknowledged compromise of its claim against Frank Brown’s estate, and— “(d) Releases and' discharges the estate of Frank Brown, deceased, and Minnie Brown as executrix of .the estate of Frank Brown, deceased, and Minnie Brown, individually, of and from any and all personal liability on the said $4,000 note secured by mortgage upon real estate hereinbefore described. It is understood and agreed that it is not the intention of the parties hereto to discharge and extinguish the debt, but only to release second parties from personal liability, and that first party retains and preserves the debt and the lien of its property on the real estate described therein.” The petition also alleged that plaintiff had agreed with defendant Minnie Brown not to ask for a personal judgment against her, but • that it was entitled to a judgment in rem in its favor against an undivided one-half of the mortgaged real estate for $4,000 with interest at ten percent per annum from March 16,1931, less a credit of two-thirds of this sum by reason of the deed of Minnie Brown for portions of the land described in the mortgage. Appellants’ demurrer to this petition was overruled. The correctness of that ruling will be considered hereafter with other matters. The appellants’ answer admitted the execution and transfer of the note and mortgage and the execution of the contract between the bank and Minnie Brown, and as has been noted above, raised the questions that the action was barred, that the debt was paid, and that plaintiff was estopped from attempting to enforce the mortgage. After hearing the opening statements of counsel and considering the admissions made by the pleadings and the record in the partition action, the court found the plaintiff was the owner and holder of the mortgage and that there was a balance of $2,291.08 due, which constituted a first lien upon an undivided one-half of the real estate, and the mortgage should be foreclosed. The judgment itself was that the bank recover a judgment in rem for the above amount; that the mortgage be foreclosed and decreed to be a first lien upon the undivided one-half of the west half of the southeast quarter of section 18, township 14, range 16. (This is the land which appellant Barnum Brown received in the partition action wherein it was held subject to the above-mentioned mortgage.) Appellants have filed a brief and reply brief, in which the question whether the debt evidenced by the note and mortgage here involved has been paid is briefly noticed, whether an action on it was barred by the statute of limitations is not mentioned, but which deal extensively with the general subject of the rights of cotenants and of the right of .one cotenant to encumber the interest of the other and the question of estoppel as applied to the facts of this case. At the time the note and mortgage were given, both were signed by Frank Brown and his wife, Minnie Brown, who is a party to the present action. By these acts Minnie Brown became personally liable to the payee and mortgagee, and by the mortgage she pledged her inchoate interest in the real estate. We have examined the contract of settlement between Minnie Brown and the plaintiff bank, dated December 1,1937, and referred to above. It seems clear from that contract the purpose was to release Minnie Brown and the estate of Frank Brown, of which she was executrix, from personal liability, and not to extinguish the debt evidenced by the note, and under the reasoning and holding in Korb v. Minneapolis Threshing Machine Co., 133 Kan. 783, 3 P. 2d 502, it must be held the debt was not extinguished. If the debt was not extinguished the lien of the mortgage persisted. The main contention is that one cotenant cannot encumber the interest of his cotenant, and'that partition having been had and the mortgagee having taken the portion of lands set off to Minnie Brown (Frank Brown) to apply on the mortgage debt, the bank may not enforce its lien further as to the portion set off to the appellant Barnum Brown. The essence of the claim is that prior to the partition, as to the entire 160 acres described therein, the mortgage of the bank covered only the undivided one-half interest of Frank Brown and that the interest of Barnum Brown was not affected thereby; that in the partition the interests were equal and the two forty-acre tracts allotted to Frank Brown were of equal acreage and value to the eighty-acre tract set off to Barnum Brown, and when the bank took a conveyance from Minnie Brown of the tract set off to Frank Brown, it estopped itself to foreclose its lien on the portion allotted to Barnum Brown. It serves no purpose to discuss the question whether one cotenant may encumber the interest of his cotenant in lands held in common, for that was not done here. Nor is it of any particular consequence here that Minnie Brown used lands allotted to her husband to procure partial satisfaction of the mortgage debt and her personal release from liability if the application of the property to the- debt was fairly made. There seems to be an insuperable reason why Barnum Brown may not question the lien of appellee’s mortgage. Barnum Brown, as he had a right to do, brought an action to quiet title to the lands allotted to him in the voluntary partition between himself and his brother Frank, making the bank a party defendant in that action. Had he desired in that action to have had equitable relief to provide that because the interests and acreage allotted to him. and his brother were equal in extent and value, the lien of the bank should be impressed on the whole and not the undivided half of Frank Brown’s allotment, and appellant’s allotment should be freed from the mortgage lien, he could have done so, and submitted that question of equity and for equitable relief to the court. But he did not do so. On the contrary, he permitted the district court to enter its judgment quieting his title to the lands allotted to him and subject to the lien of the mortgage now being foreclosed upon the undivided one-half thereof. He did not appeal from that ruling and it became final, and neither the trial court nor this court may now say the bank has or had no lien on that undivided one-half interest. No complaint seems to be made as to the amount found due. Apparently on the assumption the allotted lands were of equal value, and Minnie Brown having conveyed the'lands allotted to her, which included an undivided one-half interest therein subject to the lien of the mortgage and an undivided one-half not so subject, the bank gave credit for two-thirds of the mortgage debt and sought only to foreclose its lien on the undivided half of the lands allotted Barnum Brown for the remaining one-third. There seems to have been little or no controversy in the trial court as to the division of the debt and the proportion to be charged against Barnum Brown’s allotted lands, if they were subject to any lien. The trial court’s judgment approved the division. There is no claim here the division of the debt and the extension of credit were not fairly made and equitable in and of themselves. From what has been said it follows the court’s ruling on the demurrer to the petition was correct. No error is found in the judgment finally rendered, and it is affirmed.

The opinion of the court was delivered by Thiele, J.: The question here presented is the measure of damages to be applied when a lienholder appeals from an award in condemnation proceedings under G. S. 1935, ch. 26, art. 1, as amended by Laws 1937, ch. 226, § 1 (G. S. 1937 Supp. 26-102). Two appeals were taken to this court by the state highway commission from awards made in the district court. For our purposes the facts in each are alike and will be stated in the singular. On March 7, 1938, the state highway commission initiated the proceedings by filing its petition to have .certain lands condemned for highway purposes. Notice was given the landowner as well as The Federal Land Bank, hereafter referred to as the bank or the lienholder, and which held a mortgage lien on the tract involved. On March 16, 1938, the bank filed an application alleging it held unsatisfied mortgage liens on the lands sought to be condemned, and that by virtue thereof it had a first and prior lien in equity upon any award for damages granted to its mortgagors, and asking that an order be made the award be paid to it. On March 21, 1938, the appraisers made their report, the details of which we need not notice. Within time, the bank as a lienholder appealed from the award made. Neither the landowner nor the state highway commission filed any notice of appeal from the appraisement made. On October 5, 1938, the state highway commission filed its motion for an order determining questions of law propounded. The first question was whether the landowners were parties to the appeal; the second, if they were not parties, what was the measure of damages to which the bank was entitled. Three other questions were propounded, but by reason of our conclusions they need not be noticed. The trial court ruled that the landowner was not a party to the appeal, and that the measure of damages would be the reasonable market value of the land taken and the difference in the value of the remaining tract immediately before and immediately after the condemnation. Later, a trial was had on the question of damages in which the trial court applied the measure above stated, and as a result of which the award made by the jury exceeded the appraisement as originally made. Various post-trial motions were denied, and the highway commission appeals. In disposing of the appeals, it is to be noted there is now before us no question as to division of the award as between the landowner and- the lienholder, and that question, which might possibly arise, will not be further mentioned except in an incidental way. Many provisions of our statutes with reference to the exercise of the right of eminent domain were considered and revised by the commissioners appointed under Laws 1921, ch. 207, to revise, compile, and edit the general statutes, the result of their labors being adopted by the legislature, enacted into law and later appearing as R. S. 1923, ch. 26. Our problem is confined to article 1 of' that chapter, which treats of condemnations generally. Without pursuing the matter fully, it may be said generally that under the statutes existing prior to 1923, and as embodied in the 1923 revision, the landholder was the real party in interest and entitled to the award; the mortgagee, if any, was not entitled to the award and it was not necessary that he be given notice. The mortgagee, by appropriate pleading, could assert' his right in equity to all or a part of the award made, but that was the extent of his remedy. As bearing on the above, see St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239; Schermerhorn v. Pack, 43 Kan. 667, 23 Pac. 1043; Rand v. Ft. S. W. & W. Rly. Co., 50 Kan. 114, 31 Pac. 683; C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105; Williams v. Railway Co., 62 Kan. 412, 63 Pac. 430. The general condemnation law was amended, however, by Laws 1935, ch. 179, § 1, now appearing as G. S. 1935, 26-101, to provide that the appraisers appointed by the district court should give notice in writing to all lienholders of record, that particular amendment, however, not granting any right of appeal to the lienholder from any award made. In 1937 the provision of the general condemnation act conferring right of appeal theretofore granted to the petitioner or landowner was amended by Laws 1937, ch. 226, § 1, now appearing as G. S. 1937 Supp. 26-102, and now reads: “If the petitioner or the owner or any lienholder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions.” It will be observed that under that statute appeal is perfected, not by serving notice on any parties occupying what might be called an adverse position; it is perfected by notice filed with the clerk of the court. There is nothing in that statute which indicates or leads to the conclusion that as to a particular tract of ground the petitioner might appeal as to the lienholder and not the landowner, or vice versa, or that the lienholder could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the lienholder. The statement is that if any one of the three appeal, an action shall be docketed and tried. The statute provides its own procedure up to the point where the appeal is perfected. When that has been accomplished “an action shall be docketed and tried the same as other actions.” We are of opinion that under the statute there is and can be no separation as between parties. Whenever an appeal is taken, either by the petitioner or by the landowner’ or by a lienholder, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to this court. We think the ruling of the trial court on the first question of law propounded that the landowner was not a party to the appeal to the district court was erroneous, but that ruling was not prejudicial and did not affect the final result adversely to the landowner inasmuch as the award made by the jury was greater than the appraisement made and from which the lienholder had appealed. The appellant here has briefed the question as to the measure of damages to be applied as to a lienholder on the theory that he is owner of less than a fee and the measure should be restricted to his interest or right. We shall not discuss that question as presented. The amendments to the statute pertaining to the exercise of the right of eminent domain do not have the effect of granting to a lien-holder any different title or interest in condemned real estate than he had prior to the amendments. What division of the appraisement or award there is to be between him and the landowner must still be such as the court, in the exercise of its equitable power and jurisdiction, may think proper. Prior to the amendments, when no notice to a lienholder was required, it was possible for the landowner to appropriate the entire appraisement or award to himself, for no notice was required to be given to the lienholder. The two amendments recognized that the lienholder had an equitable interest in the appraisement or award and provided for its protection. As we view the matter, it makes no difference who may appeal from the appraisement; on trial in the district court the issue is the same, that is, whether or not the amount of the appraisement is adequate compensation for the lands taken and the damages to the lands not taken. We are of the opinion that the measure of damages applied by the trial court, the reasonable market value of the lands taken and the difference in the value of the remaining lands immediately before and immediately after the condemnation, was correct. We have here no appeal by either the landowner or the lien-holder, and any further discussion as to their respective rights to the award would be superfluous. As to the appeal of the state highway commission it appears the trial court did not err, and its judgment is affirmed.

The opinion of the court was delivered by Hoch, J.: This was an action to enjoin the board of directors of a school district from issuing bonds which had been voted at a special election. The trial court refused to grant the injunction, and plaintiffs appeal. Appellants attack the legality of the election at which the bonds were voted. It is contended that the notice of the election and the proposition stated on the ballot did not clearly and fully inform the electors as to the object for which the election was called, and also that the petition submitted to the board was not legally “presented” as the statute provides. The statutes directly involved are sections 72-2001 and 72-2002, G. S. 1935. The essential facts may be briefly stated. It was the intention of the board to erect a school building costing approximately $15,000. Of this amount, $9,150 was to be advanced by the federal government and $5,850 provided by the district. Negotiations relative to the federal grant had been carried on, but whether such grant was fully assured is immaterial to the issue here presented. In addition to the $5,850 to be provided by the district for the erection of the building itself, an additional $650 was to be provided for repairing and purchasing seats, making a total for the district of $6,500. A petition was circulated and signed, and in compliance with the petition the board called an election “upon the question of issuing the bonds of the district to the amount and for the purpose prayed for in said petition, namely, the sum of sixty-five hundred dollars, for the purpose of building and equipping a schoolhouse.” Notices were duly posted as provided in the statute. On the ballots used it was stated that the proposition to be voted upon was as follows: “shall the following be adopted: “Proposition to issue bonds in the sum of sixty-five hundred ($6,500) for the purpose of building and equipping a schoolhouse.” One hundred and twenty electors voted in favor of, and one hundred seventeen against, issuance of the bonds. The question presented is whether in view of the fact that the erection of a school building to cost $15,000 was contemplated by the board, the posted notices and the ballot complied with G. S. 1935, 72-2002, which requires that the notices shall state “the object for which the election was called.” It may here be noted that in its findings of fact the trial court expressed a doubt as to whether the notices and the ballot met the legal requirements, and it was stated in the findings that “it might be wise and better to hold another election, or at least first find out if the state auditor would register these school bonds.” And in conclusion of law No. 2 the court said: “The court feels that the notice of said bond election and the ballot used in conducting the bond election were not as full and complete as the law contemplates, but in conjunction with the detailed statement furnished the electors by the school board, the court holds, as a matter of law, the electors in said school district No. 92, Linn county, Kansas, had legal notice and were fully advised of the proposition to be voted upon in this school-bond election, November 3, 1938.” The trouble with that conclusion of law is that the statute makes no provision for curing defects in the notices and the ballot by information otherwise furnished. No question is here raised as to the good faith of the board of directors, and the issuance of the circular to the electors, with its detailed statement to which the trial court referred, indicated a commendable desire on the part of the board to have the proposition fully understood. However, issuance of the circular to the electors was not compliance with the requirement of the statute, which is founded upon sound considerations. The electors are entitled to know from the notices and from .the ballot just what they are voting upon. In the instant case, for instance, an elector may have heard none of the discussions which preceded the calling of the election; he may not have seen the circular with its full statement of the facts, and may have had no information whatever except what he secured from the notices and the ballot. He was entitled to rely upon what the notices and the ballot said. It would not suffice to say that an elector had no interest in knowing that a building costing more than twice the amount stated in the notices was to be erected because the added cost would impose no additional burden upon the district. There might be various reasons, including the additional cost of maintenance, which would influence his vote if he had known the facts. A situation essentially identical with the one here presented was considered by this court in the case of Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421. In that case bonds of the board of education of the city of El Dorado had been voted and issued for $198,500 “for the purpose of erecting a school building.” The fact was that the 'erection of a building costing approximately $390,000 was contemplated, of which amount $162,343 was to be obtained from a federal grant. The court held that the election proclamation and the bonds issued in conformity therewith did not comply with the statute. The arguments there advanced in support of the decision apply with equal force to the facts in this case. In the El Dorado case were cited prior decisions of this court, Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877, and Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400, which are clearly in point here. The question was again before this court in Kansas Utilities Co. v. City of Paola, 148 Kan. 267, 80 P. 2d 1084, and the holding in the El Dorado and other prior cases followed. We have examined the cases cited by appellee and find none of them inconsistent with the views heretofore expressed. In the case of Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720, in which the legal sufficiency of the ballot was attacked, the court found that there was no reasonable basis for saying that anyone reading the ballot would not fully understand the proposition that he was voting upon. Moreover, it was stated that the type of question raised might have been given more weight if raised at the time of the election or immediately thereafter, but that it should not be permitted to have any weight when rights of third persons had intervened and financial obligations had been incurred. In the case before us there is no allegation that the action was not timely brought. Reference was made in the opinion in the Drenning case to Leavenworth v. Wilson and Kansas Utilities Co. v. City of Paola, supra, and those cases specifically distinguished from the case being considered, and it was stated, “We do not care to detract from the holding in either of those cases.” Appellee contends that the El Dorado case is to be distinguished from the instant case on the ground that in the former the election proclamation and the ballot did not conform with the resolution of the board of education on which the proclamation was based, while in this case the notices and the ballot did conform with the petition which initiated the election. We do not consider the distinction substantial or persuasive. The proclamation and the ballot in the El Dorado case were not vitiated on the ground that they did not conform to the resolution. Nor is the insufficiency of the notices and the ballot in this case cured by the fact that they conformed to the petition presented to the board. The substance of the defect in both cases is that they do not clearly give to the electors the information to which they are entitled under the statute. Appellants also contend that the petition which initiated the election was not legally “presented” as required by the statute. In view of the conclusions heretofore stated, it is unnecessary to examine that contention. The judgment is reversed with instruction to grant the injunction.

The opinion of the court was delivered by Allen, J.: On May 12, 1922, the Bank Savings Life Insurance Company issued to Oscar Dahlstrom a policy insuring his life. Hanna Dahlstrom was named as beneficiary. The policy provided for annual premiums of $86.94, and provided that insurer would pay the beneficiary $2,000 upon receipt of proof of death of the insured during the continuance of the policy. The insured paid fifteen annual premiums of $86.94, the last of which came due May 12, 1936. The insured died February 3, 1937. In the meantime the Victory Life Insurance Company had reinsured the policies of the Bank Savings Life Insurance Company. After the death of the insured the Victory Life paid the sum of $2,000 to the beneficiary. On May 4, 1938, the administrator of the estate of' the insured, Oscar Dahlstrom, filed the petition in this action, seeking to recover the sum of $396 with interest at 4 percent per annum from the date of the death of the insured. A demurrer to the petition was overruled. The defendant having filed an answer, the plaintiff filed a motion for judgment on the pleadings, which the trial court sustained. From this ruling and the judgment entered thereon this appeal is taken. The policy was labeled “20 Payment Life Coupon Premium Reduction Plan, With Twenty Year Endowment Option Nonparticipating.” Pertinent provisions follow: Number, 15637 Amount, $2,000 The Bank Savings Life Insurance Company of Topeka, Kansas Age 28 Premium, $86.94 Will pay; two thousand dollars to Hanna Dahlstrom, mother of the insured, hereinafter known as the beneficiary, upon receipt of due proof of the death, during the continuance of this policy, of' Oscar R. Dahlstrom, hereinafter known as the Insured. Guaranteed Settlements if no Coupons Have Been Used At the end of eleven years, provided eleven full years’ premiums have been duly paid hereon and no coupon has been detached herefrom, the insured may, upon legal surrender of this policy to the company, receive A paid-up nonparticipating life policy for $2,000.00 and cash in the sum of........................................ $20.00- End of Twenty Years At the end of twenty years, provided twenty full years’ premiums have been duly paid hereon and no coupon has been detached herefrom, the insured may, upon legal surrender of this policy to the company, receive any one of the following benefits: 1. A paid-up nonparticipating life policy for....................... $4,010.00 provided satisfactory evidence of insurability be furnished the company; or 2. A paid-up nonparticipating life policy for....................... $2,000.00 and cash in the sum of ........................................ 978.00 or 3. Cash in the sum of............................................ $2,000.00 Form 47, twenty-payment life coupon premium reduction plan, with twenty-year endowment option, nonparticipating. Guaranteed Option After three full years’ premiums have been paid hereon, the insured and assignee, if any, may, upon written request and legal surrender of this policy to the company at its home office within thirty days of default -in the payment of any subsequent premium, elect to receive either — ■ 1. Paid-up PAje Policy. A paid-up nonparticipating life policy, payable at the same time and on the same conditions as this policy, for the amount provided in the “Table of guaranteed values,” column 1, opposite the number of years’ premiums paid, or— 2. Paid-up Term Policy. A paid-up nonparticipating term policy for the amount insured under this policy and for the number of years and months shown in the “table of guaranteed values,” column 2, opposite the number of years’ premiums paid, or— 3. Cash Surrender Value. The cash surrender value of this policy as stated in the “table of guaranteed values,” column 3, opposite the number of years’ premiums paid. Settlement of the policy as a death claim is provided by the first paragraph above quoted. Settlement of the policy in the lifetime of the insured is provided for in several modes: (a) At the end of eleven years upon surrender of the policy; (b) at the end of twenty years upon surrender of the policy; (c) by the mode stated in the guaranteed options. Attached to the policy were eighteen coupons. The provision in the policy as to the coupons, reads: “Coupon Reduction “The company guarantees that the premium payable hereunder shall be reduced by the amounts shown on the coupons attached hereto, provided that as each annual premium after the second falls due, the coupon bearing the same date as the annual premium payment be detached and accompany the payment of the balance of the premium, in which event the values hereunder will be as shown in table ‘A’ of the guaranteed values endorsed hereon. “The insured at his option may leave the coupons attached to his policy and pay the premium in full each year, in which event the amounts named in the unused coupons will be applied as pure endowment additions to increase the values of table ‘A’ to those shown in table ‘B’ of the guaranteed values endorsed hereon. “If the premiums be paid without reductions for at least three full years, and at any time thereafter the insured so elects he may decrease his future premium payments by applying the coupon for each year thereafter to the reduction of the year’s premium, in which event the company will upon receipt of the unused coupons up to that date, immediately pay the insured their face value together with four percent compound interest; provided, that if there be a loan against this policy, the accumulated value of the unused coupons will be applied to the reduction of the loan, and the values hereunder will thereafter be as shown in table ‘A’ of the guaranteed values endorsed hereon.” As the insured exercised his right to leave the coupons attached and paid the premiums in full “the amounts named in the unused coupons” under the foregoing provisions are to “be applied as pure endowment additions to increase the values in table ‘A’ to those shown in table ‘B’ of the guaranteed values endorsed thereon.” Under the last clause above quoted the insured, after paying the premiums without reduction for three full years, could elect to decrease his future premium payments by applying the coupon for each year thereafter to the reduction of the year’s premium; if such election were made and the unused coupons sent in, their face value with four percent compound, interest was to be paid the insured. By this provision insured had the choice of carrying the policy as an ordinary life policy, or as an endowment policy. As this elec tion was not exercised by the insured, the amounts named in the unused coupons were to be applied to “pure endowment additions" under the previous clause. Under the “guaranteed options” provisions above set forth, the insured after three years’ premiums had been paid, upon the performance of certain conditions precedent, had the election to convert his policy into (1) a paid-up nonparticipating life policy; (2) a paid-up nonparticipating term policy, or (3) to receive the cash surrender value. The right under this, election was a different right than the one existing under the election detailed in the last paragraph. It amounted to a right to surrender the policy and receive its value in cash or a new policy. The conditions precedent to the right of exercising the last election was a “written request and legal surrender of the policy to the company at its home office within thirty days of default in the payment of any subsequent premiums.” As the insured never surrendered the policy, no contention is made, or could be made, that an election under the guaranteed options provision was made. In Couch on Insurance, section 25, it is said: “Endowment insurance is, in general, a contract to pay assured, in consideration of a premium or premiums to be paid within a certain limited time, a specified sum of money at the termination of a certain designated period, if he is then.living, but to a person named if assured dies before the specified time.” In the contract before us the contract was entitled “20 Payment Life Coupon Premium Reduction Plan, With Twenty-Year Endowment Option Non-Participating.” The insured elected to pay the premiums on the policy as an endowment policy. If he had lived until he had paid twenty years on the policy as an endowment policy he would have been entitled to $2,000 — the face of the policy — in cash or a paid-up policy for $2,000 and $978 in cash under table ‘B’. But since insured did not live out the twenty-year period, but died after paying fifteen annual premiums, the payment of the $2,000 to the beneficiary fulfills the terms of the contract. We find no provision in the policy for the payment of dividends as the plaintiff seems to contend. The extra premiums which insured paid were not held for him as dividends on deposit, but were used to buy an endowment policy. As there is nothing now due on the policy, plaintiff’s cause of action must fail. The right of the plaintiff as administrator to maintain this action was discussed. This question has not been overlooked, but in view of the conclusion at which we have arrived, we do not think it necessary to determine that question. The judgment is reversed with directions to enter judgment for defendant.

The opinion of the court was delivered, by Harvey, J.: This action was a contest between rival claimants for the proceeds of two beneficiary certificates issued by the Brotherhood of Railroad Trainmen, hereinafter called the Brotherhood, upon .the life of Henry Garbacz. The appellant, Marie Garbacz, claimed the proceeds upon the ground that she was the.common-law wife of Henry Garbacz at the time of his death. The trial court found against her on that claim, and she has appealed. Henry Garbacz and Marie Garbacz were married’ at Chanute, December 5,1926. They had no children. On November 18, 1936, she was granted a divorce from him in an action brought by her in the district court of Neosho county, and a property settlement agreed •upon between them was approved by the court, and the property assigned to each was delivered in accordance with the decree. The decree did not contain an order changing her name, and she continued to be known in the community as Mrs. Garbacz, or Marie Garbacz. Henry Garbacz was an employee of the A., T. & S. F. Railway Company at Chanute, and at the time of his death, June 9, 1938, was yardmaster. At some time while he was married to appellant he purchased the two beneficiary certificates in question, of $1,500 each, insuring his life in the Brotherhood, a fraternal insurance organization, in which certificates Marie Garbacz, his then wife, was named beneficiary. Our statute, G. S. 1935, 40-704, governing fraternal benefit societies, provides, in part: “The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree ascending or descending, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren or children by legal adoption: . . . Provided, further, That any society may in its bylaws limit the scope of beneficiary within the above classes.” The bylaws of the Brotherhood conform to this statute and contain this provision: “In case a member dies whose individual reserve certificate has been written in favor of his wife and no transfer of the benefits made as provided-in this rule, and a divorce has been granted to either party, . . . the benefits shall be payable to the executor or administrator of said member’s estate in trust; however, for and to be forthwith paid over to his next of kin. . . .” The bylaws further provide: “No beneficiary shall have or obtain any vested interest in said benefits until the same have become due and payable upon the death of the certificate holder.” On June 9,1938, Henry Garbacz while at work met with an accident which resulted in his death. He left surviving him five brothers, Adam W. Garbacz, Joseph E. Garbacz, Stanley J. Garbacz, George Garbacz, and Edward Garbacz, one sister, Rose Garbacz Jackson, and a niece and nephew, Margaret Routzang and Hubert Routzang, children of a deceased sister, Margaret Garbacz Routzong. These were notified, and several of them went to Chanute and together with appellant and Leslie H. Cable, an attorney consulted by the brothers, went through Henry Garbacz’s papers to see what was of value, and particularly to see if there was a will. They found no will, and appellant stated that she knew of none. They were advised by the attorney that if there was no will, and since his parents were deceased, his property would pass to his brothers and sisters and the niece and nephew. At that time appellant made no claim to any of the property by reason of being the wife of Henry Garbacz. Appellant did suggest that he be buried at Chanute, but the brothers desired that he be buried at Cotter, Ark., where some of them lived, and he was taken there for burial. Upon the petition of two of the brothers Leslie H. Cable was duly appointed and qualified as administrator of the estate of Henry Garbacz, and soon thereafter made proper application to the Brotherhood for the payment of the amount due on the beneficiary certificates. Marie Garbacz also made claim to the Brotherhood for payment to her of the amount due on the certificates. Desirous of avoiding litigation between them, the Brotherhood declined to pay either. This action followed. After the action was brought the parties entered into a stipulation in writing. In harmony with this the Brotherhood paid into court $2,706.72, being the face of the two beneficiary certificates less a policy loan thereon of $293.28, and the action was dismissed as to the Brotherhood: The petition contained all necessary allegations, among them that Henry Garbacz died intestate and left surviving him his brothers and sister, nephew and niece, above named, as the persons entitled to receive the proceeds of the certificates, the action being brought by the administrator for their benefit in harmony with the provisions of the benefit certificates. Marie Garbacz filed an answer in which she admitted the death of Henry Garbacz; that he was survived by brothers, a sister, niece and nephew, as alleged in the petition; admitted the benefit certificates were issued and in force, as alleged; admitted she was divorced from Henry Garbacz November 18,1936; that he left no written will, but alleged that he left a nuncupative will naming her as the beneficiary, and that she had petitioned to probate such will, and alleged “that she was the common-law wife of said Henry Garbacz from May, 1937, continuously until the death of Henry Garbacz, June 9, 1938, that she was dependent upon him for support and that she, under the law of inheritance '. . . is entitled to said insurance and all his property.” The prayer was that she be adjudged entitled to the proceeds of the two beneficiary certificates, and that she be adjudged the common-law wife of Henry Garbacz at the time of his death. The reply was a general denial. At the beginning of the trial, from the examination of the pleadings and statement of counsel, the court expressed the view that there was but one controverted issue to be tried, namely, Was Marie Garbacz the common-law wife.of Henry Garbacz at the time of his death? Upon that issue the court held the burden of proof to be upon Marie Garbacz. She introduced evidence in support of her allegation on that issue, plaintiff introduced evidence in opposition thereto, and defendant produced evidence in rebuttal. Having considered all the evidence of both parties, and the argument of counsel, the court found that the defendant, Marie Garbacz, was not the common-law wife of Henry Garbacz at the time of his death, and found generally in favor of the plaintiff, Leslie H. Cable, as administrator of the estate of Henry Garbacz, deceased, and against the defendant, Marie Garbacz, and rendered judgment accordingly. Appellant contends the finding and judgment should have been the other way. This is clearly a case of controverted facts. The most that can be said in favor of appellant is that some of the evidence on her behalf, if given full credence, and if there had been nothing in opposition to it, might have been sufficient to sustain a finding and judgment in her favor; but with respect to some of the evidence there is much to discredit it, and there was evidence to the contrary. Appellant argues there was no evidence to support the finding and judgment of the court. When this contention is made in a case involving controverted facts we examine the evidence which tends to support the judgment. This may be summarized as follows: Shortly before the divorce action was brought in 1936 Henry Garbacz moved from the apartment where he and his wife lived to a room which he rented in another part of town, where he also rented a garage for his automobile. He took with him his personal belongings, or at least most of them, including his hunting and fishing clothes and equipment and his books for keeping the records of a local lodge of which he was secretary. He continued to occupy this room and live there, except for an absence of a few days at a time, until his death. About the time he moved he gave notice to the bank where he did business not to permit- anyone else to draw on his account. Prior to that time his wife was privileged to and did draw on his account. She never did so thereafter. In making his state and also his federal income tax returns for the year 1936 he reported himself as a married man part of the year and as a single man part of the year, and claimed the statutory exemptions correspondingly. In making those returns on March 15, 1938, for the year 1937, he reported himself as a single man and claimed only the statutory exemption of a single man. To obtain an annual pass from his employer it was necessary under the rules for him to make an application in writing and state therein whether he was a single man or married. In his application made August 10, 1936, it was stated that he was a married man. In the application made August 2,1937, he stated he was a single man, and the annual pass was issued to him individually, which pass he still had at the time of his death. The latter part of March, or early in April, 1938, the enumerator taking the census of the city called at appellant's apartment, where she had continued to live since her husband had moved to another part of town, and being questioned as to how many people lived in the apartment appellant told the enumerator that she was the only person living there. On the day of the accident and death of Henry Garbacz a reporter for the principal newspaper in town, assigned to write the story of the accident, called the appellant by telephone and asked her about his surviving relatives. She told him he was survived by five brothers, a sister, a niece and nephew, and gave their names, and on being interrogated as to whether he was survived by a wife she stated to him that they “had been” divorced, or that they “were” divorced. She stated nothing on that occasion about being the wife of Henry Garbacz. Several witnesses, testifying in behalf of plaintiff as to their being together quite a little, stated that one or the other of them stated that they planned to be married in July. His death occurred before that. When the brothers and their attorney and she were looking through his papers after his death, and the attorney advised who the heirs would be if he left no will, she was present and made no claim that she was the wife of the decedent. There was testimony on her behalf that on the day of his accident, and before his death, he made an oral will in which the appellant was the beneficiary, and the evidence discloses that later she petitioned to have that will probated. The fact that he undertook to make the will, naming appellant as his beneficiary, tends to establish that he did not regard her as his wife, for if they were then married she would have inherited all his property under the law of descent without any will. It cannot be said that there was no substantial competent evidence to support the finding and judgment made by the trial court. Appellant complains that the burden of proof was placed upon her at the beginning of the trial. We think under the pleadings that ruling was proper. Aside from that, in these cases, the question of the burden of proof is largely which one should first go forward with evidence. Each party introduced all the evidence he or she desired to introduce, the court heard and considered it all, and the question of which had the burden of proof was not of much importance. (Loveless v. Ott, 121 Kan. 728, 250 Pac. 324.) Appellant makes the further claim that since she was named as the beneficiary in the policies, and no other beneficiary ever had been named, that the question of her rights, insofar as they are governed by the bylaws of the organization, is one which should be raised by the Brotherhood and not by plaintiff in this action. We think the point is not well taken. The rights of these parties were fixed by the contract, evidenced by the benefit certificates and the constitution and bylaws of the society. The rights of plaintiff and. those whom he represents were fixed and became vested upon the death of Henry Garbacz. Because of their diverse claims the Brotherhood declined to pay to either party, and it made no attempt to waive any bylaw by the action it took in conformity with the stipulation of the parties, if, indeed, it could waive anything to the detriment of plaintiff and those whom he represents after their rights had become vested by the death of the insured. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Harvey, J.: This is an appeal from an order sustaining defendants’ demurrer to plaintiff’s petition. By the allegations of the petition plaintiff formerly owned a certain 281-acre tract of land in Elk county. In November, 1932, he sold the land to Della May and Ralph E. Hurst and conveyed it to them by a general warranty deed which contained the following clause: “The said W. L. Davis reserves one-half of the oil and gas royalties.” . In December, 1936, Della May and Ralph E. Hurst executed and delivered to the Sagamore Oil & Gas Company an oil and gas lease for the 281 acres on the usual No. 88 form of such leases, which, among other things, provided that the lessee should give to the lessors an undivided one-eighth of all the oil or gas found upon the premises within the term of the lease. At the execution of the lease the lessee paid the lessors $140.50 as a bonus for executing the lease, and a year later paid a like amount for delayed rental provided for in the lease. This action is to recover one-half of each of those payments on the claim that they are “royalties,” as that term is used in the reservation clause in the deed. In passing upon the demurrers to the petition the court necessarily decided against that contention. The correctness of that decision is the only question before us. In Robinson v. Jones, 119 Kan. .609, 240 Pac. 957, in developing a definition of overriding royalties, it was said: “Such interests are derived in this way: A landowner calling himself lessor gives to another called lessee an instrument called an oil lease, in the common form. As consideration for the grant, the owner is to receive one-eighth of the oil produced. This interest is called royalty. The lessee’s seven-eighths interest in the oil produced is called the working interest.” (Italics inserted.) It is then demonstrated how overriding royalties may be carved out of the working interest — a point not important here. In Bellport v. Harrison, 123 Kan. 310, 255 P. 2d 52, it was held: “The ordinary and legal meaning of the word ‘royalty,’ as applied to an existing oil and gas lease, is the compensation provided in the lease for the privilege of drilling and producing oil and gas, and consists of a share in the oil and gas produced. It does not include a perpetual interest in the oil and gas in the ground.” (Syl. HI.) Authorities in support of this holding were cited (p. 313). It also was held that the ordinary meaning of the word “royalty” in an existing oil and gas lease cannot be enlarged by proof of usage or custom, and authorities in support of this view were set out in the opinion. This definition has been cited with approval in Anderson v. Allen, 129 Kan. 502, 505, 283 Pac. 509; Burden v. Gypsy Oil Co., 141 Kan. 147, 151, 40 P. 2d 463; Richards v. Shearer, 145 Kan. 88, 91, 64 P. 2d 56, and was specifically referred to and followed in Serena v. Rubin, 146 Kan. 603, 607, 72 P. 2d 995. It also was cited and followed in Leydig v. Commissioner of Internal Revenue, 43 F. 2d 494, where it was held: “ ‘Royalty’ under existing oil and gas lease consists of share in oil and gas produced, but does not include perpetual interest therein.” It has been cited, also, in later federal cases (Alexander v. King, 46 F. 2d 235, 239, and Lucas v. Baucum, 50 F. 2d 806, 808). It seems clear that by a long line of decisions this court is committed to the view that the word “royalty,” standing alone, as applied to an oil and gas lease, means the share of oil and gas to be received by the lessor by the operation of the lease. Appellant cites and relies largely on Brooks v. Mull, 147 Kan. 740, 78 P. 2d 879, and argues that a different conclusion was reached in that case. We think that decision is not open to the interpretation placed upon it by appellant. Plaintiff might have worded the clause in the deed so as to reserve to himself an undivided share of the oil, gas, or other minerals in the land. But he did not do that. Appellant cites cases from other jurisdictions in which it was held that the reservation in the deed entitled the grantor to receive a share of the bonus or rentals; but in each of those cases the court analyzed the reservation and held that by it the grantor reserved a share of the minerals in place. The cases are not in point. We find no error in the ruling of the trial court, and its judgment is affirmed. Allen, J., dissents.

The opinion of the court was delivered by Dawson, C. J.: Plaintiff brought this action for damages for alleged injuries sustained while riding on a stock shipper’s pass on defendant’s freight train. Defendant’s demurrer to plaintiff’s petition was sustained on the ground that it did not state a cause of action. Plaintiff appeals. The propriety of the trial court’s ruling turns on the pertinent statute, which in part reads: “That all freight trains to which a caboose is attached shall be obliged to transport, upon the same terms and conditions as passenger trains, all passengers who desire to travel thereon and who are above the age of fifteen years, or who, if under fifteen years, are accompanied by a parent or guardian or other competent person, but no' freight train shall be required to stop to receive or discharge any passenger at any other point other than where such freight train may stop; nor shall it be necessary to stop the caboose of such trains at the depot to receive and discharge passengers: Provided, That on such trains the railroad companies shall only be liable for their gross negligence: . . (G. S. 1935, 66-275.) In his petition plaintiff alleged that on September 26, 1936, one Jack Zeigler shipped a carload of livestock over defendant’s railway from Wakeeney to Kansas City; that Zeigler hired plaintiff as caretaker; that plaintiff received from defendant a shipper’s contract which entitled him to ride on its freight train to Kansas City. He alleged— “That the said contract was the ordinary contract of that date used by defendant in the transportation of stock for shippers and granted to the shipper the privilege of having a caretaker with his stock as part of the consideration which the shipper paid for the transportation of his stock.” Plaintiff also alleged that pursuant to that contract he entered defendant’s caboose and rode in it to Ellis, at which place the freight train stopped, whereupon— “This plaintiff entered upon the couch of defendant in said car and was reclining thereon, when the defendant’s employees without any notice to this plaintiff started said train violently with a violent and quick motion and by said violent and quick motion threw this plaintiff with great force against the arm of the seat on which plaintiff was reclining, causing this plaintiff a serious internal injury.” Plaintiff’s petition narrated in detail the extent of his injuries and the consequent pain he suffered and still suffers, and the medical bills he has incurred, and added— “This plaintiff says further that said injuries were caused wholly on account of the negligence of the defendant as aforesaid set out and not on account of any negligence of the plaintiff.” Read in the light of the statute quoted above, can it be said that plaintiff’s petition stated a cause of action? It will be noted that under the circumstances in which plaintiff was riding on defendant’s freight train, the railway company was only liable for gross negligence. Does the petition allege facts constituting gross negligence? Plaintiff says that without notice the train started with a violent and quick motion. Plaintiff does not allege that such starting of a freight train “without notice” is negligence. He does not allege that the freight train could have been started without the violent and quick motion alleged, nor that such violent and quick motion was so unusual or unnecessary as to constitute negligence of any degree. (10 C. J. 975-976.) But even so, the statute declares that it is only for gross negligence that a railway company shall be liable to a passenger on a freight train. In Jones v. Railway Co., 98 Kan. 133, 157 Pac. 399, this court reversed a judgment awarding damages to a would-be passenger on a freight train who had charged it with negligence in starting its train without announcement or signal, giving him no opportunity to buy a ticket, inviting him to get aboard while the train was moving, in operating the train so that it jerked as he tried to get aboard, and in failing to help him to get on the moving train. In the opinion of this court, written by the late Mr. Chief Justice Johnston, it was said: “It is not expected, nor does the law require, that a carrier shall provide for passengers traveling on a freight train the safeguards and the conveniences ordinarily provided for travelers on passenger trains. . . Freight trains, as all know, are mainly used for carrying freight, and there are many hazards on such train's that travelers are not subjected to on passenger trains. One who chooses this means of travel must be held to have done so With a knowledge of the hazards and inconveniences incident to the operation of such trains. . . . Our legislature, however, has fixed the measure of care to be exercised by a railroad company carrying passengers on freight trains, as well as the measure of its responsibility to passengers who may be injured while traveling on such trains.” (p. 135.) The same opinion discusses the statute enacted by our legislature on the subject of who may be received as passengers on freight trains, and under what conditions, and the measure of the railway company’s responsibility towards them, and continues: “Persons above fifteen years of age, as well as those younger who are accompanied by guardians or competent attendants, may elect to take the risk of traveling on a freight train, but the legislature has said that those who venture on such trains have no right to ask more than slight care and can hold the carriers for nothing less than gross negligence.” (p. 136.) In Hawk v. Railroad, 130 Mo. App. 658, 108 S. W. 1119, it was said: “It is a matter of common knowledge that in starting and stopping such unwieldy [freight] trains, sudden jolts and jars of varying degrees of violence are ordinary incidents even where such trains are handled with the greatest care. As such occurrences cannot be avoided in the exercise of due care, the rule is well settled that.passengers assume the risk of injury by them as one of the perils of travel by that mode of conveyance. The fact that a sudden and violent jolt or jar accompanies the stopping of a freight train ipso jacto will not raise a presumption of negligence. A passenger injured thereby to be entitled to recover from the carrier, must go further: He must adduce facts from which an inference of negligence fairly arises.” (p. 663.) In 2 Hutchinson on Carriers, 3d ed., 1155-1157, a railroad’s liability of a person riding on a “drover’s pass”.is thus stated: “In the transportation of live animals, it is usually provided by the contract that the shipper, or someone in his behalf, shall go with them on the journey to attend to their wants and protect them from injury, and that, for this purpose, such person shall be furnished with free transportation on the train with the animals to their destination and with return carriage to the starting point, usually upon a passenger train. Such carriage is not gratuitous, and the person so carried is entitled to protection as a passenger both while going and re turning; . . . He is only a passenger, however, in a restricted and modified sense, for he assumes such risks and inconveniences as . . . are characteristic of the vehicle upon which he is carried. To the extent that such risks and inconveniences interfere with the operation of ordinary rules of liability, the duty of the carrier is accordingly modified.” See, also, Binder v. Railroad Co., 108 Kan. 47, 194 Pac. 314. An examination of the citations in appellant’s brief reveals nothing at variance with the rule announced in the J ones case, supra, nor in the cyclopedias which treat of this subject. (13 C. J. S. 1410-1412; 4 R. C. L. 1153-1155.) The judgment is affirmed.

The opinion of the court was delivered by Thiele, J.: The sole question presented by this appeal is whether the evidence at the trial warranted a finding that the Texokana Oil Company, hereafter referred to as the appellant, was a member of a mining partnership and as such liable to judgment. The plaintiff filed his petition alleging that he entered into a contract with certain named defendants, not including the appellant, under which he was to perform as a driller in exploring for oil or gas on the north half of the northwest quarter of section 4, township 33, range 2 west, in Sumner county, Kansas, this being the land on which drilling operations were to be performed, and being a part of a large block of acreage. There being no controversy with respect thereto, we omit reference to allegations as to work done. The prayer was for judgment against the defendants other than the appellant for the amount claimed due, and for the establishment and foreclosure of his mechanic’s lien. A receiver was appointed who took charge of the lease and equipment thereon. The appellant company filed its answer, alleging that it was the owner of certain drilling equipment used on the lease which it had rented to defendant L. M. Graham, that the equipment was not subject to a lien under the statutes of Kansas, and it prayed for an order that the equipment belonging to it be returned and delivered to it. To this answer the plaintiff replied that other defendants had entered into a joint adventure or copartnership with the appellant company by which appellant had agreed to and did furnish money and supplies, and that the same were furnished not as a rental matter but as a part of carrying on the operations in the search for oil and gas on the Dawson lease, being on the real estate above specifically described; that all of said defendants were to contribute in the joint venture to the end that a test would be made on the property and all of said parties be interested -in the development of the lease, in the costs and profits, if any, and to this end the appellant company furnished the goods, wares, equipment, etc., set forth in its answer, and thereby became liable to plaintiff and to intervenors who had filed claims for similar services. On the same day the answer was filed, on leave obtained, the plaintiff amended his petition to charge that the appellant company and other defendants had entered into a joint adventure and partnership for the purpose above mentioned and the appellant had agreed to furnish cash in the sum of $2,500, as plaintiff was informed, and various materials to be used in said development, and by reason of the copartnership and joint adventure had become bound to pay laborers and materialmen the respective amounts due to them for work, labor and supplies on the Dawson lease. Thereafter the appellant filed its anwser to the amendment to the petition denying that it had any interest in the Dawson lease or that it was in any way ,a partner or copartner or interested in any way as a joint adventurer with other named defendants in the described Dawson lease. At the trial evidence was introduced to which reference is hereafter made, and the trial court concluded that the equipment on the leasehold estate was placed there with intention of removal; that the development work was done and performed by a partnership composed of the appellant company and certain named defendants, and that the partnership and each member thereof, upon whom service of summons had been had, was liable for such labor and materials as were furnished and used upon the lease. The trial court further found that the title to the equipment described in the inventory of the receiver was vested in the partnership found to exist, the partnership being in the nature of a mining partnership or co-partnership for the purpose of development of the leasehold described and other leases in the surrounding vicinity and as described in the pleadings. The trial court further found that the leasehold estate was subject to cancellation for failure to further develop. On these findings the court denied a mechanic’s or labor lien, but awarded to the plaintiff and other claimants judgments for.specific amounts against the partnership composed of the appellant and certain named defendants. Other parts of the judgment need not be here noted. Thereafter appellant moved for a new trial, the principal ground being that the finding it was a mining partner with other defendants was contrary to the evidence. This motion was denied. Thereafter it filed a petition for a rehearing of its motion for a new trial, alleging that certain witnesses, although subpoenaed, were unavoidably absent and their testimony was not available at the hearing of the motion for new trial, and that affidavits would be presented on the hearing. These affidavits were produced at the hearing of the petition and thereafter the prayer thereof was denied. Appeal to this court followed. Under proper assignments of error appellant presents for our consideration three propositions, which we summarize: (1) That the appellees did not discharge the burden of establishing a mining partnership so far as attaching liability as a mining partner on the appellant is concerned; (2) the activities of the appellant in connection with drilling on the Dawson lease were insufficient to serve as the basis of the finding that it is chargeable as a mining partner, and (3) the appellant, as a matter of law, cannot be held as a mining partner by reason of the nonexistence of the fundamental prerequisites of a mining partnership. Discussion of these propositions requires a review of the evidence, but in that connection it may be remarked that limits of space preclude reference to the many citations of authority in the briefs or to a detailed recital of the evidence as disclosed in the abstracts. Insofar as the evidence is concerned, we need only recite it sufficiently to tell the story of the trial and to ascertain whether the facts disclosed are sufficient to support the findings of the trial court. We are not concerned with testimony from which the trial court might have reached a different conclusion. One Westfall owned an oil and gas lease on the real estate specially described above and referred to as the Dawson lease, and he and one Fine owned other leases on lands in the vicinity. In September, 1936, they made a contract with L. M. Graham, one of the defendants, whereby they conveyed to Graham a one-half interest in the Dawson lease and agreed to convey to him certain other leases on over 400 acres on near-by lands and to deliver to him good and sufficient purchase agreements (so-called bottom-hole orders) of five oil companies, totaling $15,000, upon his complying with his agreement to drill a well at his own expense on the Dawson lease. L. M. Graham sold three of the leases covering 160 acres to the appellant for $3,000, to be paid when the Dawson well was completed. In carrying out his agreement, L. M. Graham had associated with him his brother, Frank Graham, who was the president of the appellant company, and his nephews, Dolisi Graham and Eugene Graham. The machinery with which to drill the well was obtained by L. M. Graham from the appellant. In his testimony he stated that he borrowed it and he also stated that he had purchased it and expected to pay for it with the proceeds of the bottom-hole orders upon completion of the well. It was shown that certain of the equipment was procured by the appellant company from a dealer under a conditional sales agreement calling for the payment of $4,000 in installments, the agreement stating it was understood and agreed that the tools were to be used in Sumner county approximately eleven miles west of Wellington, and so long as the debt remained unpaid the buyer would not remove the same without written notice to the seller. It was also shown that a draw works was purchased by the appellant from another dealer for the sum of $2,000, appellant de livering its installment note for $1,500 and a chattel mortgage on the draw works, the mortgage stating: “This unit will be used in drilling a well in Sumner county, Kansas, approximately 11 miles west Wellington, Kansas.” And further that— “Said mortgagor further promises that he will . . . not use or permit them [draw works] to be used for hire . . . and will not attempt to sell, assign or dispose of said goods and chattels or any interest therein.” Without attempting to recite the details, there was evidence that Frank Graham was the president of the appellant company and that he sent at least one of the employees of the company to work on the Dawson lease and that the employee received expense money and perhaps some wages by drafts on the appellant company. Frank Graham also sent to the Dawson lease other men who were employed there. A number of witnesses stated that Frank Graham told them he was associated with L. M. Graham and others and that he had put money in the lease, one witness putting the amount at $25,000. One Chaffee furnished fuel oil used on the lease and was paid for a part of it by drafts on the appellant company. He had some trouble with the drafts and threatened to quit. Frank Graham then told him to continue and stated he would see that Chaffee didn’t lose any money. In the aggregate appellant paid him about $1,800. There was also testimony that abstract fees and recording fees were paid by drafts of the appellant company, as well as bills of the city of Wellington for water used on the lease, and other bills for other expenses. The evidence also showed that L. M. Graham, in addition to the $15,000 of purchase-money orders or bottom-hole orders above mentioned, had one for $3,000 from the appellant and that this last one was paid. The others were not paid, as the well was not completed to the contract depth. Before entering upon a discussion of appellant’s contention, it may be well to note that in plaintiff’s pleadings the charge is that defendants were engaged in a joint adventure. In the findings of the trial court, it found the relationship to be a- — • “Partnership, being in the nature of a mining partnership or copartnership existing for the purpose of the development of the leasehold described above and other leaseholds in the surrounding vicinity and described and set forth by the various pleadings in this case.” Whatever the technical distinction may be between a mining partnership and a joint adventure, we think that whether the present relationship be denominated as one or the other is not particularly important. (See Curtis v. Hanna, 143 Kan. 186, 53 P. 2d 795; annotation, “What amounts to a joint venture,” 48 A. L. R. 1055, 63 A. L. R. 909; articles, 8 J. B. A. Kan. No. 1, p. 20.) Appellant contends appellees did not discharge the burden of establishing there was a mining partnership or joint venture insofar as concerns its liability. There is no doubt that such burden was on the appellees. (See Curtis v. Hanna, supra, syl. ¶ 2.) To maintain that burden, however, appellees did not have to prove a formal written or oral contract; whether there was such a relation between the parties charged, including the appellant, could be gathered from the surrounding circumstances and from the mutual acts, and conduct of the parties. (Mountain Iron & Supply Co. v. Branson, 134 Kan. 818, 8 P. 2d 407; Curtis v. Hanna, supra, and citations therein.) Appellant directs our attention to Clark v. Crouse, 130 Kan. 177, 285 Pac. 577, where it was said: “The existence of a partnership cannot be established by conjecture, or the statement of a witness that he understood a partnership existed between certain members, nor by other hearsay testimony. As between a member of a partnership and third parties, a partnership may be shown by circumstantial evidence warranting an inference of the existence of the relationship, but not where there is only a slight basis for the inference. (47 C. J. 727, § 136.)” (p. 180.) Appellant also directs our attention to authorities holding that in the case of ordinary mining partnerships something more will be required to raise the presumption of liability arising from persons holding themselves out to the world as partners than would be necessary in the case of an ordinary partnership. (Thompson v. Crystal Springs Bank, 21 F. 2d 602, and cases cited.) From the above it is argued there is no evidence which warrants any conclusion appellant was a member of the partnership and subject to liability as a partner. The above leads to a discussion of appellant’s contention that its activities in connection with the drilling of the Dawson well were insufficient to serve as a basis of the finding that it was liable as a mining partner. Reliance is placed on Clark v. Crouse, supra, where there was no admission of a partnership relation nor any direct evidence concerning it. Boyle, the person sought to be charged, had been at the well in question, but this court said that what he did there was more consistent with the position of an employee than a principal, and the fact he directed the plaintiffs to go after pipe and offered to pay for the trip might have been done by a foreman, and was insufficient to warrant an inference of existence of a partnership. As the trial court viewed the present matter, and as we view it, what is said in the last-mentioned case is not conclusive here. There is material difference in the facts. It must not be overlooked that the appellant is a corporation and could act only by and through its officers and agents. Without intending to make a complete statement thereof, the evidence here showed clearly that the appellant furnished the drilling rig and equipment necessary to be used in developing the Dawson lease under conditions heretofore noted; that its president sent one of its employees to attend to certain duties on the lease; that he arranged for other employees; that the appellant honored many drafts on it for expenses of various kinds; that it advanced the amount of a bottom-hole order even though the conditions thereof had not been met; that it was the assignee of leases on other lands in the vicinity and was vitally interested in the exploration for oil or gas, and in the completion of the well on the Dawson lease. We have examined cases from other jurisdictions cited by appellant. In Gardner v. Wesner, (Tex. Civ. App.) 55 S. W. 2d 1104, it was held that: “In order to constitute a mining partnership (sometimes called a joint venture) there must be not only a joint ownership of the mining property (which of itself creates only the relation of cotenancy), but also a joint operation. •‘The actual working of the mine by the joint owners is essential to a mining partnership.’” (p. 1106.) And that a loan of casing to be returned if the well was unprofitable and to be kept and paid for if productive was nothing more than a loan of a chattel with provision for a sale on contingency; that the agreement for sharing the net profits was by way of compensation for use of the chattel and there was no j oint venture. In Mattocks v. Great Northern R. Co., 94 Wash. 44, 162 Pac. 19, the railway company made a contract with one Gibbons to furnish him with drilling equipment and certain funds to be used in exploring for oil. Gibbons abandoned the work and it was sought to hold the railway company as a mining partner. The supreme court, reversing the trial court, held there was no joint ownership of property, or joint enterprise in the sense of two or more persons working property jointly owned by them. After citing authorities holding that to extend such contracts to cover additional liability on the part of those furnishing the money would be to hold in effect that mere agreements to provide a definite sum to another to be used in a mining venture made the person advancing liable for all expenses incurred, and that such was not the law, it held that the contract before the court was merely a grubstaking contract, and not evidence of a mining partnership. We do not think those cases, and others cited, are at all conclusive of the case at bar. Certainly it may not be said the trial court’s conclusion that there was a partnership in the nature of a mining partnership was based on mere conjecture. If the conclusion is wrong, it is by reason of the nonexistence of fundamental prerequisites of a mining partnership, a subject presented by appellant under its third proposition. Some of the authorities previously mentioned touch upon the elements of a mining partnership. In discussing this proposition, the appellant and appellees direct our attention to many other authorities. Both rely on Gilbert v. Fontaine, 22 F. 2d 657, where the court quoted approvingly from 40 C. J. 1143, viz.: “A partnership may be formed to work mines owned or leased by any or all of the individual members, but the parties must be associated together in the ownership or possession of the property in some manner; and although an equitable interest is sufficient, there must be an interest in the property or a right to possession in the right of the partnership as distinguished from that of the owner, and a mere license or contract of employment is not a sufficient interest in the mine to support a mining partnership.” (p. 660.) A full discussion of mining partnerships, especially as applied to the oil and gas industry, may be found in 4 Summers, Oil & Gas (Perm, ed.) 139 et seq., where many of the cases referred to in the briefs are mentioned. After discussing development of such partnerships, and with especial reference to the state of Oklahoma, which has considered the question on a number of occasions, it is said: “Finally, in White v. A. C. Houston Lumber Co., in an attempt to reconcile all of the cases, the court laid down three requirements for the creation and existence of a mining partnership; coownership, joint operation and an express or implied agreement to share in profits and losses.” (p. 156.) The above statement seems to be based on that part of White v. A. C. Houston Lbr. Co., 179 Okla. 89, 64 P. 2d 908, reading as follows: “Each case of mining partnership or joint adventure must necessarily be determined by its own facts. However, by examination of cases heretofore decided by this court, we can devise a test consisting of three requirements ■which must always be present in order to.form the relationship: (1) There must be joint interest in the property by the parties sought to be held as partners; (2) there must be agreements, express or implied, to share in the profits and losses of the venture; and (3) there must be actions and conduct showing cooperation in the project. None of these elements alone is sufficient. (Citing cases.)” (p. 91.) The above statement is as favorable to the appellant as any-brought to our attention either by the briefs or our independent research. Taking up the elements mentioned in inverse order, we think the trial court had a substantial basis in the evidence for finding the appellant’s actions and conduct showed cooperation in the development of the Dawson lease, and that from all the circumstances it was warranted in concluding there was an agreement to share, in the profits and losses of the venture. The only element remaining was whether the appellant had a joint interest in the property. It is true that the record title to the Dawson lease or any interest in it did not stand in the name of the appellant but, as was said in Gilbert v. Fontaine, supra, an equitable interest is sufficient. Was there evidence that warranted the trial court in concluding appellant did have such an interest? What reason was there why the appellant should obligate itself for the purchase of machinery which was placed on the lease, or why it should send one or more of its employees to the lease to engage in the exploration, or why it should advance large sums of money for recording fees, fuel and water bills and other expenses? Appellant says it had other leases in the vicinity and was interested in the exploration of the Dawson lease for that reason. But does that assertion demonstrate the trial court erred in concluding appellant’s activities were because it had an interest in the Dawson lease? We do not think so. Whatever the situation might have been between those engaged in promoting the exploration of the lease, and whatever their rights and liabilities with respect to each other, the evidence here showed that appellant exercised rights of ownership in sending its employees to the lease in question, in hiring others to work thereon, in supplying equipment to be used thereon and in paying for supplies used in prosecution of the work and the development of the lease. Appellant, to all appearances, was an owner. Third parties, aware of the situation, had a right to rely on such appearances (Clark v. Crouse, supra). We think the evidence rather logically leads the trial court to conclude that appellant would not have done all that it did had it not had an interest in the lease. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Wedell, J.: This was originally an action for divorce and alimony. Defendant’s appeal, however, is from a subsequent order which revived plaintiff’s, the wife’s, judgment in favor of the administrator of her estate, the National Bank of Topeka. Defendant’s complaint does not involve the procedure on revivor or the correctness of the amount of alimony found, in the order of revivor, to be due on the alimony judgment. He contends first that the original judgment of alimony rendered on July 29,1929, was void for indefiniteness, and second, that the trial court altered the alimony judgment by a subsequent judgment on April 27, 1935, which alteration he claims the court was without jurisdiction to make. Was the original judgment void for indefiniteness? Defendant contends the amount of alimony was not definitely fixed in that judgment. The decree included a money judgment for $4,500, and provided $500 thereof should be paid to plaintiff in cash, $1,000 was to be paid on or before July 29,1930, and the balance of $3,000 was ordered paid in monthly payments of $75 each, together with interest at the rate of six percent per annum. The decree likewise specifically included a money judgment against defendant in the sum of $2,200 in addition to the $4,500 item. The $2,200 item was the amount defendant then owed to the Shawnee Building & Loan Association, on the home place which was awarded to the plaintiff in the division of the property of the parties. The judgment further provided that five installment payments on that mortgage debt, being $150, should be paid by defendant to the mortgagee at once, and that defendant should pay the balance of the mortgage debt to the mortgagee as the same came due, together with interest, under the provisions of the mortgage. The judgment permitted plaintiff to pay the monthly payments on that mortgage in the event defendant failed to pay the same, and authorized plaintiff to add such payments made by her to the monthly alimony installments of $75. The decree also provided that if defendant failed to make the $1,000 payment within one year from date of the decree, or if he should be in default in the payment of three of the $75 monthly payments, then the entire amount of alimony awarded should be due and payable at once. The journal entry provided that the court retained jurisdiction of the cause for such further orders or judgments as seemed just and proper to enforce the payments it had directed to be made. Defendant defaulted in the payment of the mortgage debt, ánd on April 27, 1935, the court, after notice duly served on defendant, heard evidence upon plaintiff’s motion to fix the amount then due plaintiff under the provisions of the original judgment. It is not denied that the mortgagee threatened foreclosure on the home and that in order to avoid foreclosure plaintiff on April 14, 1935, paid the balance due on the mortgage in the sum of $1,504. There also remained unpaid $375 on the $4,550 item of the alimony judgment; $387.50 was due for interest on deferred payments, making a total of $2,266.85. For that total amount then found to be due, judgment was rendered against the defendant, to be paid at the rate of $75 per month on the first day of each month, together with interest on deferred payments, at the rate of six percent per annum. On October 9, 1938, plaintiff died intestate. The undisputed balance due on the date of revivor of the judgment was $1,46.6.85, together with interest at six percent per annum from September 28, 1938. The judgment was revived in favor of the appellee, administrator, on February 20,1939. The original judgment of alimony was not void for indefiniteness as .to its amount. It was rendered for the definite total sum of $6,750. It provided $4,550 of that amount should be paid in a specific manner. The balance of the alimony judgment likewise consisted of a definite sum, namely, $2,200. The latter represented the amount of the mortgage on the home place which the court permitted defendant to pay according to its specific terms. Upon default by defendant in the payment of the mortgage debt, and the payment thereof by plaintiff, as authorized by the judgment, the court did not on April 27, 1935, alter the original judgment, but calculated the balance then due thereon, and rendered judgment accordingly. Neither the correctness of the amount found due on April 27, 1935, nor the amount found due at the time of revivor are disputed by the defendant. Defendant also contends the original judgment was indefinite because it was based upon a contingency, the contingency being that defendant might default in the payment of the mortgage debt, and if so, he would be obliged, under the original, judgment, to pay a different amount than that specified in the original judgment. The contention is not well taken. The amount of the mortgage on the home place was definitely fixed in the judgment and defendant was required to pay it in accordance with the definite terms of the mortgage. The judgment specifically provided that in the event defendant failed to pay the mortgage plaintiff should be permitted to pay it and should have judgment against the defendant for the amount so paid. In other words, the judgment fixed not only the amount of the mortgage but also provided the manner in which plaintiff might protect her home in the event of defendant’s default. Defendant directs our attention to the cases of Moore v. Moore, 119 Kan. 704, 241 Pac. 117; Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409; Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Revere v. Revere, 133 Kan. 300, 299 Pac. 595; Catren v. Catren, 136 Kan. 864, 18 P. 2d 134; Mayfield v. Gray, 138 Kan. 156, 23 P. 2d 498; Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032; Id., 143 Kan. 83, 53 P. 2d 792. He contends those decisions prohibit the alteration of alimony judgments after the term in which they are rendered and that the Catren case makes contingent alimony judgments invalid. It could serve no useful purpose to extend this opinion by an analysis of the facts in those cases. The facts in those cases are readily distinguishable from those in the instant case. The principles therein stated in nowise conflict with the views herein expressed. Defendant finally urges the court had no authority to retain continuing jurisdiction to alter-the original judgment. It is a sufficient answer to say the court had authority to enforce its original judgment in the manner it did enforce it, irrespective of a provision in the original judgment that it retained jurisdiction to enforce the judgment. Moreover, the judgment was not altered in the instant case. Plaintiff insists defendant is estopped from complaining about the original judgment for the reason he concurred therein by accepting the property set aside to him, operated the business properties awarded to him and retained the profits therefrom and for many years made numerous payments on the judgment. Plaintiff also urges that irrespective of the judgment, the wife had the right to pay the mortgage debt on the home place and to be subrogated to the rights of the mortgagee. It is not necessary to treat those contentions. The alimony judgment was not void for uncertainty as to its amount, the amount was not altered and the district court had authority to enforce the judgment. The judgment is affirmed.

The opinion of the court was delivered by Harvey, J.: This was an action for damages to plaintiff’s car and for personal injuries sustained by him in an automobile collision alleged to have resulted from defendant’s negligence. Defendant’s general demurrer to plaintiff’s petition was overruled. He has appealed from that ruling and contends the petition shows on its face that plaintiff is barred from recovery because of his own negligence, which contributed to the injuries. So far as is pertinent here, the allegations of the petition may be summarized as follows: About 7:30 p. m. on September 12, 1938, plaintiff was driving his automobile in a careful and prudent manner and at a speed of about thirty-five miles per hour on the right-hand side of state highway No. 14 at a point about a mile and a half southwest of Hazelton; that defendant owned two trucks, then being operated by his two employees, who were named. These trucks had been driven in the same direction along the same highway, but were stopped, one directly behind the other, on the right- hand side of the highway, with the left sides of the trucks near the center of the highway and so as to bar the lane of traffic for cars traveling eastward; that neither truck had any headlight, taillight, or clearance light burning; that neither truck was equipped with a reflector, and that no' flares had been set out either in front of, or behind, or at the side of the trucks, as required by law; that as plaintiff approached the trucks a car approached from the opposite direction, the lights of which blinded plaintiff, making it impossible for him to see the full distance of his own light range; that by reason of these facts plaintiff was unable to see the trucks until he was within a short distance of them and too close to stop; that in attempting to avoid a collision with the trucks, or with the approaching car, he swerved his car to the right and into the ditch on the right-hand side of the road; that in doing so the left side of his car collided with the right rear corner of the rear truck, causing damage to plaintiff’s car and personal injuries to him, which are more fully described in the petition. Defendant’s negligence was more specifically alleged. In this court appellant concedes, for the purpose of his argument, that defendant was negligent, but argues that the allegations of the petition make it clear that plaintiff also was negligent in a manner which contributed to his injury and damage. We think the point is not well taken. It is well settled that contributory negligence is a defense. It is also well settled that ordinarily it is a jury question. The correctness of these propositions is conceded. Appellant correctly argues that a petition may show the negligence of the plaintiff so clearly that reasonable minds could not differ concerning it, and in such case the question is one of law. We think the allegations of the petition do not bring this case within that rule. Appellant cites the authorities holding that one traveling in an automobile on the highway at night should travel at such speed and have sufficient control of his automobile that he can see objects in time to stop within the range of his lights, and where the condition of the road, or the weather, or traffic, are unusual in any particular, he should use such care under the circumstances as a reasonably prudent man would do, and if he fails to do so that he is guilty of contributory negligence. The rule contended for by appellant is not as broad nor as universally applicable as appellant argues it to be. In Meneley v, Montgomery, 145 Kan. 109, 64 P. 2d 550, the cases were classified and those cited where the rulé had been applied and others cited where the facts did not warrant the application of the rule. There is no occasion here to cite and analyze all the authorities bearing on this question. Appellant stresses the allegations of the petition to the effect that as plaintiff approached these standing trucks, without knowing them to be there, he was partly blinded by the lights of an oncoming car, and argues that under those facts it was the duty of plaintiff to stop, if necessary, rather than to proceed without being able to see objects distinctly the full distance ahead of him that his lights ordinarily would show him. Standing alone, that would not be sufficient, as a question of law, to establish negligence of plaintiff which would prevent his recovery. (Witte v. Hutchins, 135 Kan. 776, 12 P. 2d 724; Conwill v. Fairmount Creamery Co., 136 Kan. 861, 18 P. 2d 193; Long v. American Employers Ins. Co., 148 Kan. 520, 83 P. 2d 674, and the recent case of Central Surety & Ins. Corporation v. Murphy, 103 F. 2d 117, which action arose in this state.) There was no error in the ruling of the trial court and the judgment is affirmed.

The opinion of the court was delivered by Hoch, J.: This is an original proceeding in mandamus to compel the county superintendent of public instruction of Lincoln county to approve the payment of tuition of certain applicants who desire to attend high school in adjoining counties. An alternative writ was issued. The defendant filed a motion to quash and an answer. The matter has been considered after oral argument and upon briefs filed by both parties. Section 72-3806, G. S. 1935, which we find to be here applicable, provides for an appeal to the state superintendent of public instruction from refusal of a county superintendent to approve such applications. Plaintiffs do not allege that formal appeal was taken to the state superintendent. They recite that upon rejection of the applications by the county superintendent the parents of several of the pupils who had been rejected, together with certain persons not parties to this proceeding, “went to Topeka to appeal to the state superintendent of public instruction, but he stated that he has no power to remedy the difficulty.” We cannot say, upon such an allegation of informal discussion and expression of opinion, that there has been a statutory appeal to the state superintendent. Nor is the case here on mandamus directed to the state superintendent. The writ of mandamus, which is an extraordinary remedy, may not be issued where there is a plain and adequate remedy in the ordinary course of the law. (G. S. 1935, 60-1702.) It is well established in a long line of decisions of this court, which need not be cited here, that mandamus will not be issued where petitioners have not availed themselves of the legal remedies provided. We find that the plaintiffs, having taken no appeal to the state superintendent, have not exhausted their statutory remedies and that the motion to quash should be sustained. It is so ordered. Smith and Allen, JJ., dissenting.

The opinion of the court was delivered by Dawson, C. J.: Richmond A. Cox and Theodore Cox, father and son, filed these actions for damages against defendants for injuries sustained in a collision of motor vehicles on a public highway. On the evening of October 29, 1935, after nightfall, plaintiffs were riding as guests of one Ludy in a small Ford truck on the paved highway (U. S. 50-S) a few miles east of Emporia. Ludy drove the truck and Theodore Cox rode in the cab by his side. Richmond Cox rode in the bed of the truck with his back leaning against an iron bar at the rear of the cab. En route westward they crossed a bridge or culvert where the highway curves to the south and then straightens out toward the west again. About the time the Ludy truck reached this curve, two motor vehicles came from the west — one called the Clements car which was traveling at a speed of 20 to 30 miles per hour, and a second called the Kellogg truck, belonging to defendants, which was traveling at a speed of 50 to 60 miles per hour and rapidly overhauling the Clements car. About the time the Ludy truck and the Clements car were passing each other, the Kellogg truck collided with the Ludy truck, with resultant injuries to the plaintiffs which gave rise to these damage suits. At the trial the most sharply contested issue of fact was whether the Ludy truck had gotten over on the south half of the road and first struck the Clements car and then ran into the Kellogg truck, or whether the Kellogg truck veered to the north side of the road to pass the Clements car at the time the Ludy truck was passing westward, thus causing a three-car collision and crashing into the left side of the westbound Ludy truck. The conflicting evidence relating, to the incident of the Clements car being struck (although without much damage to it), served as a talking point which plaintiffs and defendants strove to use to their own advantage. Plaintiffs sought to show that the driver of the Kellogg truck was under the influence of intoxicants, but as the trial progressed the court directed the jury to disregard that matter. It was also testified to, but denied, that immediately after the accident Theodore Cox said that Ludy was not fit to drive a car in the nighttime. Another issue of fact which developed a lot of evidence pro and con related to the extent of plaintiffs’ respective injuries. All these, as well as other controverted facts not now important, required a jury trial lasting six days, and culminated in a verdict in favor of Richmond A. Cox for $9,000, and for Theodore Cox in the sum of $2,000. The jury also returned answers to special questions, which read: “1. Do you find that on the night of the accident the Clements coupé was struck by either the Kellogg truck or the Ludy truck? A. Yes. “2. If you answer question No. 1 in the affirmative, state which truck struck the Clements coupé. A. Kellogg. “3. Where, in reference to the center line of the pavement, did the collision occur between the Kellogg track and the Ludy truck? A. North. “4. Where, in reference to the center line of the concrete slab, was the left front wheel and portion of the Ludy truck, immediately after the accident? A. North. “5. In what direction was the Kellogg truck headed immediately after the . collision with the Ludy truck? A. North of east. “6. In what direction was the Ludy truck headed immediately after the collision with the Kellogg truck? A. South of west. “7. Where, in relation to the center line of the concrete slab, was the Kellogg truck immediately after the collision with the Ludy track? A. Front left corner and wheel north of center line. “8. Did Theodore Cox make any statement after the collision as to who was to blame for the collision between the Ludy track and the Kellogg truck? A. No.” Yarious post-trial motions were disposed of; a remittitur of $1,000 was entered by Theodore Cox; and judgment was thereupon rendered in favor of plaintiffs. Defendants appeal, urging various errors, the first of which relates to the admission of testimony (later stricken out) to the effect that there was an odor of intoxicating liquor on the breath of Hoffmans, the Kellogg truck driver, immediately after the accident and later the same evening. Defendants objected to this testimony chiefly on the ground that plaintiffs had not alleged the intoxication of the Kellogg truck driver as one of the grounds of negligence. At the conclusion of plaintiffs’ direct testimony the record recites: “The Court: Before the defendants’ testimony is started, I want to instruct the jury that certain testimony has been introduced by one of the witnesses in this case concerning intoxicating liquors ... it will be stricken out, and the jury will not consider that testimony in arriving at their verdict. I refer specifically to the testimony of the plaintiff Theodore Cox concerning the intoxicating liquors, or the smell of intoxicating liquors immediately after the accident and also at the home of Theodore Cox. As stated, the jury will not consider this testimony in arriving at your verdict, because there is no proof that this particular testimony would lead to the belief that the use of intoxicating liquors in any way caused the accident in question. It will be stricken out and not considered by the jury.” “[Counsel for plaintiffs]: May I ask, Your Honor, what testimony you are referring to? “The Court: The questions and answers referring to intoxicating liquors or the use of intoxicating liquors at the time of the accident. There has been absolutely no testimony the jury could base any verdict on, convicting these defendants of negligence, because of this testimony. “[Counsel for plaintiffs]: On behalf of the plaintiffs in this case we except to the statement and ruling of the court, for the reason that the testimony referred to by the court was a part of the res gestae.’’ Defendants interposed no> objection to this ruling — which was in their favor — nor did they either then or later give the court any intimation that its ruling was insufficient to cure error, if any, in the first admission of that testimony. But its admission for the time being was not error. Nothing is more common than for the trial court to permit testimony to be given concerning facts of some possible evidential significance, but which when viewed in toto appear to be so meager or immaterial as to justify or require their being stricken from the record and the jury told to disregard them. The next error assigned relates to the overruling of defendants’ motion for a new trial. Aside from its relevance to the question of excessive verdict, which we will later notice, this motion appears to have been merely pro forma. We discern nothing in this point requiring discussion. The third error urged relates to the overruling of defendants’ motion to set aside the jury’s answers to the special questions. To none of these answers, however, is it squarely contended that there was not some competent and substantial testimony to support them. An abstract of the testimony, which extends to 118 pages, and which is again reproduced in defendants’ brief to the length of 43 pages, is submitted for our perusal — for no apparent reason we can discover unless it be on the assumption that an independent study of the evidence might induce this court to disagree with the jury’s determination of the controverted facts. This, however, is not the function of an appellant tribunal. In State, ex rel., v. Telephone Co., 115 Kan. 236, 269, 223 Pac. 771, the late Mr. Justice Marshall, speaking' for the court, said: “The rule that the verdict of the jury or the findings of fact made by a referee in the district court, when approved by that court, will not be disturbed in the supreme court where the verdict or findings are supported by evidence has been followed during the whole of the history of this state. Probably that rule has been followed five hundred times. It has been followed in equity cases as well as in law cases.” The next two errors assigned raise the question whether the verdicts were excessive. While it is true that the jury returned a verdict for $2,000 in favor of Theodore Cox, and that the trial court required him to choose between a remittitur of $1,000 and a new trial, there are no facts or circumstances shown in the record which would enable this court to hold that the jury’s overgenerous verdict was the result of passion or prejudice. On this point the record reads: “And the court, having listened to the arguments of counsel, and being well and fully advised in the premises, doth find: (1) That the verdict of the jury is excessive, and that said verdict is not excessive as the result of passion and prejudice of the jury. That unless plaintiff remits $1,000 thereof on or before February 4, 1939, said motion of the defendants, Kellogg’s Sales Company, a corporation, and C. C. Hoffmans, for a new trial should be sustained.” Our reports are laden with cases holding that the imposition on the prevailing litigant before the jury of a choice between a remittitur and a new trial because the trial court (or this court) considered the verdict to be excessive, does not necessarily establish passion or prejudice on the part of the jury. Sometimes it does; more commonly it does not. (Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 55-57, 10 P. 2d 33, and citations.) See, also, “Remission of Excessive Damages as Alternative to New Trial” in 7 J. B. A. Kan. 393-398. On the point whether the judgment in favor of Theodore Cox was still too large, even after the remittitur was filed, the plaintiff’s evidence tended to show that he received a cut over his left eye which required several stitches and that it has left a permanent scar. His left incisor tooth was broken so that it had to be drawn and a false tooth inserted and supported by bridge work; two of his upper front teeth were broken off and have had to be tipped with gold; his lip was badly cut; he received a blow on the head which caused numbness for several weeks. A judgment for $1,000 as damages for such a list of injuries does not strike this court as unduly large under our rule frequently applied in considering errors based on the amount of the verdict or judgment in damages. (Ellis v. Kansas City Public Service Co., 131 Kan. 555, 560, 292 Pac. 939; Sponable v. Thomas, 139 Kan. 710, 724, 33 P. 2d 721; Crawford v. Southern Kansas Stage Lines Co., 145 Kan. 580, 586, 66 P. 2d 601.) Turning next to appellants’ objections to the verdict and judgment for $9,000 in favor of the elder Cox, the plaintiff’s evidence tended to prove that he was about sixty years old when he was injured in the accident and that until then he had been an active manual worker in railroading and in farming, but that since then he has had a stiff neck; he cannot turn his head toward the right normally as he does to the left, and he needs a cane in walking, and is incapable of doing any hard manual labor. Immediately after his injury a swelling “about the size of a ten-cent loaf of bread” appeared on his back above his right hip. He was sent to a hospital where he remained eleven days, and thereafter he went to Kansas City for more medical aid. He lost weight for a time after the accident, but had regained it at the time of the trial. There was testimony that for some time he suffered pain in his back and in the back of his head; also, dizziness, nervousness and headaches, and had difficulty in sleeping. Some X-ray pictures of his neck, spine and pelvis were taken at various times, and these tended to show that there had been a compressed fracture of the fifth and sixth cervical vertebrae. Some muscular spasm had occurred in the lower region of plaintiff’s back, but the Xray revealed nothing in that region which might have caused it. One of plaintiff’s witnesses, a specialist in orthopedics, testified that compression of plaintiff’s fifth and sixth cervical vertebrae might be induced by trauma, impaction, or by arthritis. Ignoring entirely the evidence for defendants which tended to minimize the extent of plaintiff’s injuries — as we must, since the jury appears to have discredited it — did the plaintiff’s injuries summarized as above suggest that the verdict and judgment for $9,000 were excessive? A majority of this court hold that such excessiveness is not so clearly shown 'as to permit this court to interfere. The judgment is therefore affirmed.

The opinion of the court was delivered by Hoch, J.: This was an action to foreclose a real-estate mortgage. The defendant, who had bought the property subject to the mortgage, had made all the payments specifically provided for by the mortgage. The plaintiff refused to release the lien on the ground that the provisions for payment stated in the mortgage were in error and that the defendant was liable for additional payments called for by the note referred to in general terms in the mortgage. The defendant filed a cross petition for damages, under the statute, for refusal to release the mortgage. Defendant prevailed, and plaintiff appeals. Two questions are presented. The first is whether, under the facts and circumstances hereinafter stated, the purchaser was liable for the additional payments called for by the note. The second is whether, as a matter of law, the verdict and judgment against the plaintiff for refusal to release the mortgage should be set aside. We also have before us a motion by the appellee to dismiss the appeal on the ground that the appellant has not had transcribed and brought here for review enough of the evidence to enable this court to pass upon the questions presented. Appellant says that the abstract is adequate for determination of the questions of law which it desires to present. The fact that the appellant has not furnished more of the record is not in itself sufficient ground for dismissing the appeal. On the record submitted we have reached the conclusions hereinafter stated, and the motion to dismiss the appeal has been denied. The judgment sought against appellee Warson was solely one in rem. He was not involved when the original indebtedness was incurred and had nothing to do with the note which was secured by the mortgage. He was a subsequent purchaser, taking title subject to the mortgage. The debt had been incurred by Albert Anderson and wife, who were the owners of lot 13, block 1, Kenwood, an addition to Kansas City, Kan. On August 6,1925, they borrowed $2,750 from the plaintiff, the Citizens Savings & Loan Association, hereinafter called the association, to be used in building a house on the lot, and gave their note for that amount, secured by a mortgage upon the property. The contract note was given to cover subscription for 271/2 shares of stock in accordance with the association’s usual plan of operation. After recital that it was executed to secure the payment of $2,750 with interest and such charges as might come due under the terms of the contract note, the mortgage provided as follows: “. . . which said interest and dues on said shares the first parties agree to pay in monthly installments, making a total monthly payment of $34.38 payable as follows: Thirty-four and 38/100' dollars on or before the 6th day of August, 1925, and a like sum on or before the 6th day of each and every month thereafter to and including the month of January, 1934.” Subsequent to the recording of the mortgage the appellee, Joe Warson, negotiated with the Andersons for purchase of the property. Before completing the deal he secured an abstract of title, had it examined by a reputable and experienced attorney, who confirmed the representations of the Andersons and reported that the title was good, subject only to a mortgage of $2,750, which was payable in 102 monthly installments of $34.38, ending in January, 1934. On October 20, 1925, he made a cash payment and took title from the Andersons, who warranted the property to be free from all encumbrances except the mortgage. Two payments had been made by the Andersons, and from then on Warson made every monthly payment regularly, including the last one in January, 1934. The association refused, however, to make record release of the mortgage. They advised him that they had discovered that a mistake had been made by their scrivener at the time the mortgage was executed and that it was not in accordance with the terms of the note which it secured. They said that instead of calling for 102 monthly payments of $34.38, ending in January, 1934, the note called for 138 payments of that amount, ending in January, 1937. They explained that when negotiations for the loan were begun the Andersons desired to pay off the loan at the rate of $41.25 a month, including principal and interest, and that this would call for approximately 102 monthly payments, the last one being in January, 1934, but that before arrangements were completed the Andersons asked to have the monthly payments reduced, and that agreement was then made for monthly payments of $34.38, which would mature the debt in approximately 138 months, the last payment being in January, 1937. They said that the note was made out according to the new arrangement, but that the scrivener by mistake wrote up the mortgage to mature the payments in 102 months, ending in January, 1934. Warson contended that he had fully discharged the debt which he assumed. The foreclosure action was begun in July, 1934. The case, which did not come to trial until January, 1939, was tried before a jury, which brought in a general verdict for defendant Warson and assessed damages in his favor for $100 for refusal of the association to release the mortgage and for $400 for attorney’s fees. Although the trial of the case consumed several days, practically none of the testimony has been brought here for our examination. We have only the pleadings and motions made in the case, copies of the note and mortgage, opening statement for the defendant, certain correspondence dealing with the legal services performed by defendant’s attorney, the instructions asked by the plaintiff, the instructions given, the general verdict and the jury’s answers to special questions. Appellant concedes that questions of fact were tried out, and that while there was conflicting testimony, the jury’s findings of fact are not open to attack. It contends that as a matter of law Warson was bound to make payments for 138 months as provided for in the note signed by the Andersons, even though the terms of the note did not appear in the mortgage and were in fact contrary to the terms therein set forth. It seems to be appellant’s view that the jury’s findings of fact relative to representations which it made to appellee may be disregarded in determining the question of law presented. With that view we cannot agree. In its answers to special questions the jury found that Warson’s allegations as to representations made to him by officers of the association, both before and after he bought the property, were true. We need not, there fore, here determine whether Warson would be liable for payments called for by the note, and not appearing in the mortgage, if he had made no inquiry about the matter and had received no representations about it from the association, and had relied solely upon what appeared upon the face of the mortgage. The jury’s findings of fact cannot be disregarded. The jury found that: 1. Warson understood and believed when he bought the property in 1925 that 102 monthly payments of $34.38 from August, 1925, to January, 1934, would satisfy plaintiff’s lien upon the property. 2. Warson’s understanding and belief were induced by (a) the written opinion of the attorney who examined the title and construed the mortgage, (b) statements and conduct of officers of the association confirming the attorney’s written opinion, (c) statements of the plaintiff’s secretary and treasurer or either of them that payment provided in the mortgage would liquidate the lien. 3. That the. association, through its secretary and treasurer or either of them,'know or had reason to know, at or before the time Warson bought the property, that he was buying it in the belief that payments of $34.38 a month, to January, 1934, would retire plaintiff’s lien. 4. That the plaintiff did not notify Warson at the time he was making the purchase that it claimed any lien different from that described in the written opinion given by the attorney. 5. That on three different occasions the plaintiff informed War-son that the monthly payments to January, 1934, would discharge the lien, namely, (a) when the deed was made from the Andersons to Warson, (b) when Warson wanted to borrow money from another source and pay off the plaintiff, (c) when Warson was considering a loan for purchase of a farm. 6. That Warson used reasonable diligence in ascertaining the extent of plaintiff’s lien. 7. That the plaintiff was interested in whether Warson bought the property from the Andersons. The jury also found that the plaintiff did not intentionally deceive Warson as to when the mortgage would be paid out and would not have profited by deceiving him in the matter, but upon motion of the defendant these answers were set aside by the trial court. While the plaintiff’s motion for a new trial alleged, inter alia, “erroneous rulings of the court,” there is nothing in the record be fore us to indicate that the plaintiff called the court’s special attention, as alleged error, to the striking out of these particular answers. There was nothing upon the face of the mortgage to indicate that the terms therein set out might be in error and that the note, referred to, might carry different terms. It is urged that it was incumbent upon the prospective purchaser to make inquiry. The answer is that he did so. The association had possession of the note. Before he bought the property, and twice afterwards upon occasions involving his course of action, he made inquiry at the office of the association and was informed that the payments set forth in the mortgage would discharge the lien. For eight and a half years he made his monthly payments regularly, and in January, 1934, a total payment to the association of $3,506.76 was completed, which included the principal of $2,750 and interest at approximately seven percent. Under these facts the equitable rule of estoppel clearly applies and the defendant was entitled to discharge of the lien. (21 C. J. 1113, 1135, 1146; 10 R. C. L. 689; Westerman v. Corder, 86 Kan. 239, 119 Pac. 868; Continental Bank v. Kowalsky, 247 Mich. 348, 225 N. W. 496; Fulton B. & L. Asso. v. Greenlea, 103 Ga. 376, 29 S. E. 932.) We have examined all of the cases cited by appellant and find none of them inconsistent with the conclusion that by its representations to the defendant the plaintiff is estopped from demanding payments in addition to those set out in the mortgage. For instance, among the cases cited is Middlekauff v. Bell, 111 Kan. 206, 207 Pac. 184. In that case a bank held a note and mortgage which it assigned to Middlekauff, who delayed recording the assignment. Subsequently a third person accepted a mortgage on the same property on the alleged representations of the bank that the first mortgage had been paid. In spite of the fact that she had delayed putting the assignment of record the assignee of the first mortgage prevailed as against the holder of the second mortgage. The case is clearly distinguishable from the one we have here. The second mortgagee, in order to protect himself, should have insisted upon record release of the former mortgage before making the loan. He took no action upon any representations made to him by the holder of the first mortgage. ' Appellant devotes much of its argument to the proposition that the note and the mortgage must be construed together as one instrument. Appellant admits that the terms of the two instruments are inconsistent and contends that those of the mortgage were in error. If this action were between the original parties to the note and mortgage appellant’s contention would be more in point. It does not disturb the estoppel established by the facts, as between the association and Warson, who had nothing to do with the execution of the note and as far as the record discloses never saw it. The second question is whether the defendant was entitled to statutory damages for plantiff’s refusal to release the mortgage. In his cross petition the defendant sought recovery under the provisions of G: S. 1935, 67-309, which makes a mortgagee liable in the sum of $100, together with reasonable attorney’s fee, for failure or refusal to release a mortgage of record when it has been paid. The jury awarded the statutory damages of $100, and $400 for attorney’s fee. Appellant contends that even though it be held that Warson was entitled to release of the mortgage, it is not liable in damages under the statute, because a question of law was involved which it was entitled to litigate. It says that the statute cannot properly be invoked where there is ground-for honest and reasonable doubt as to the rights of the contending parties. On this question, as on the first one heretofore discussed, it again appears that appellant would outline the controversy without regard to the jury’s findings of fact. What was the controversy? What was the question of law involved in the controverted right of Warson to a release of the mortgage? Appellant says, in effect, that the question it was entitled to litigate was simply whether a purchaser of property subject to a mortgage is bound J>y the terms of the note referred to in the mortgage. The appellee says that the controversy was whether he was so bound in the face of the representations made to him by officers of the association. It is true that appellant denied that the representations were made, but the jury found otherwise. In other -words, the jury said that the controversy was what the appellee says it was. We cannot, therefore, decide whether the association had reasonable grounds to believe that the defendant had not discharged his obligation without taking into account the jury’s findings of fact. Having represented to Warson before he made the purchase that the terms stated in the mortgage would discharge the lien, and having advised him to the same effect on two subsequent and consequential occasions, can the association then say that there was reasonable doubt as to whether he was entitled to release of the mortgage? Assuming that these representations were made in good faith after examina tion of the mortgage, whose terms may have been mistakenly written by the scrivener, the fact remains, as found by the jury, that the representations were made and relied upon. Moreover, it must again be noted that appellant has not brought the testimony here for our review. What aggravating circumstances, if any, may have been shown by the testimony, we cannot say. We do have, however, the allegations made in defendant’s answer and cross petition, not only that the plaintiff refused to release the mortgage, but that thereafter it “went upon the defendant’s property and falsely and fraudulently stated and represented to the tenant of these defendants that said mortgage was unpaid and in default and that plaintiff held an assignment of the rent executed by these defendants and by said false statements induced said tenants to pay to the plaintiff the sum of twenty-five dollars ($25) as rent. That these defendants were required to employ counsel and bring suit against the plaintiff to recover said sum, etc.” We do not know what, if any, evidence was produced to support this allegation, or whether any other conduct was shown indicating willful disregard of defendant’s rights in refusing to enter the release. Appellant cites the recent case of Stumph v. Wheat Belt B. & L. Ass’n, 148 Kan. 25, 79 Pac. 896, which followed Parkhurst v. National Bank, 53 Kan. 136, 35 Pac. 1116. Our holding here is in nowise contrary to those decisions. In Stumph v. Wheat Belt B. & L. Ass’n, supra, it was held that the question of whether the appellee was entitled to statutory damages and attorney’s fee depended in a large part upon there being a bona fide controversy between the parties and that an ultimate finding against the appellant did not necessarily mean that its claim had not been made in good faith. The case involved no material representations made and relied upon by the opposing party. Likewise, Parkhurst v. National Bank, supra, simply held that if the mortgagee in good faith believes the mortgage is not paid he is not liable for the penalty. In that case no representations by the mortgagee, giving rise to estoppel, were involved. In the instant case, with its findings of fact by the jury, and the full testimony undisclosed, we cannot say that there was not sufficient evidence to support the award under the statute. (Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144; Mathews v. Ins. Co., 113 Kan. 1, 213 Pac. 157.) The judgment is affirmed.

The opinion of the court was delivered by Fatzer, J.: This appeal involves proceedings in the nature of an action to quiet title to certain personal property, a building and equipment, located on leased premises on the Union Pacific Railroad right of way. The action collaterally attacks a sheriff’s sale of the property to satisfy personal property tax judgments against the appellee, Tom Holden, in the district court of Trego County, Kansas. The facts are not in dispute. The appellee owned a lease on a portion of the Union Pacific Railroad right of way approximately 500 feet west of the city of WaKeeney. A building had been constructed on the site and equipped for processing mud for use in the drilling of oil wells. The business was owned by the appellee and operated under the firm name of Lubri-Gel Products or Lubri-Gel Company, and was unincorporated. The property was duly assessed each year by the taxing authorities of Trego County. The taxes for the years 1961 through 1965 were unpaid and personal property tax warrants were issued to the sheriff, and returned “not collected.” Thereafter, for each of those years the county treasurer filed with the clerk of the district court an abstract of the total amount of unpaid taxes and interest due, plus penalties and costs, accompanied by the tax warrant, and the clerk entered such total amount on his judgment docket against Lubri-Gel Company or Lubri-Gel Products as the name appeared on the warrant, which total amount became a judgment in the same manner and to the same extent as any other judgment. (K. S. A. 79-2101.) On January 23, 1967, the Board of County Commissioners directed the clerk of the district court to issue execution to the sheriff of Trego County on the several personal property tax judgments. One execution was issued and docketed in the district court as case No. 4631, which recited a total judgment in favor of the Board of County Commissioners and against Lubri-Gel Company for $2,479.24, with interest at ten percent per annum, and $8.75 costs of which $2,487.99 remained unpaid. A copy of the execution was served upon the appellee by the sheriff on January 26, 1967, and he was told that if the amount of taxes due was not paid he, the sheriff, would levy on the appellee’s building and equipment located west of WaKeeney and it would be advertised and sold to pay the judgments. Thereafter, the sheriff duly levied on the property in question. On February 7, 1967, the sheriff filed an appraisal which recited that he and two householders appraised the “buildings and equipment of Lubri-Gel Corporation of WaKeeney, Kansas,” at $3,500. (Emphasis supplied.) On February 16, 23, and March 2, 1967, the sheriff duly published a notice of sale of the property in question in The Western Kansas World of WaKeeney, as follows: “In the District Court of Trego County, Kansas, ss: “Board of County Commissioners of Trego County “vs “Lubri-Gel Corporation. “Case No. 4631 “Notice is hereby given that under and by virtue of an execution issued by the Clerk of the District Court in and for said county of Trego, in a certain action in said court numbered 4631, wherein the parties above named were respectively plaintiff and defendant, and to me the undersigned Sheriff of said county directed, I will offer for sale and sell at public auction, and sell to the highest bidder for cash in hand, at the west front door of the court house in the city of WaKeeney, in said County, on the 3rd day of March, 1967, at 2 o’clock p. m. of said day, the following described personal property, to-wit: “All buildings and equipment located on the Union Pacific Railroad right-of-way owned by Lubri-Gel Corporation and located approximately Five Hundred (500) feet west of the west city limits of WaKeeney. Frank Bednasek Trego County Sheriff.” (Emphasis supplied.) The property was sold on March 3, 1967, as advertised in the notice of sale. In response to the notice, some fifteen to twenty-five people attended the sale and there was competitive bidding up until the final bid. The sheriff returned the execution to the clerk of the district court, which showed it was received by him on January 25, 1967; that he levied on the property in question and advertised the same for sale and sold the goods and chattels at the price set opposite the same respectively: “Lubri-Gel Building and Equipment, less 2-50 h. p. electric motors and hookup disconnects owned by Central Kansas Power, and 1 west sliding door and track owned by Ray Stithem, sold to Clyde O. Byrd $2600.00.” On March 8, 1967, in response to a motion to confirm the sale, the district court entered an order in which it found that the, “. . . personal property listed in said notice was purchased by Clyde O. Byrd for the sum of $2,600.00, and that said sale, and all notice thereof, was had as provided by law and that said sale of personal property should be, and it is confirmed by the court and the sheriff of Trego County, Kansas, is authorized and directed to place Clyde O. Byrd, the purchaser of said property, in possession thereof." (Emphasis supplied.) The record shows the appellee had money to pay the personal property tax judgments and that he conferred with the county attorney and the Board of County Commissioners after the issuance of the execution in an effort to have the commissioners “knock off” or “forgive” the interest due on said judgments. He was advised the property had been levied upon and was advertised for sale on March 3, 1967. On May 1, 1967, and after the time to perfect an appeal or institute other proceedings in case No. 4631, the appellee filed his petition in the present action to quiet title to the property previously sold to the appellant, Clyde O. Byrd. All proceedings had in case No. 4631 were attached to and made a part of his petition. The appellant’s motion for summary judgment was considered by the district court and overruled. The district court concluded the execution was properly issued against Lubri-Gel Company but that the notice of sale referred to property of Lubri-Gel Corporation and that matters raised in the appellee’s action were not res judicata by reason of the tax sale. Thereafter, the appellant filed his answer to the appellee’s petition, and alleged ownership of the building and equipment by virtue of the sheriff’s sale and his possession of the property; that all matters set forth in the petition were res judicata by reason of proceedings had in case No. 4631; that the present action was a collateral attack on such proceedings and the order of the district court confirming the sale; that the appellee was estopped from asserting ownership of the property; that the appellant was a bona fide purchaser of the property, and that he lawfully assumed the public officials had properly performed their duties in bringing the property to sale and selling it in case No. 4631. Trial was by the court which rendered judgment in favor of the appellee. The court made findings of fact that the execution in case No. 4631 was a sufficient execution on the property of Tom Holden, doing business as Lubri-Gel Products or Lubri-Gel Company; that the notice of sale in case No. 4631 did not describe the property set out in the execution, but described property as being owned by Lubri-Gel Corporation, a separate and distinct legal entity other than Tom Holden, doing business as Lubri-Gel Company; that there was no property owned by such corporation at such location, and that such a corporation did not exist. It further found the sheriff’s report of sale on the return of the execution should be set aside, and that its order of March 8, 1967, confirming the sheriff’s sale should likewise be set aside. In accordance with its findings, the district court entered judgment in favor of the appellee and confirmed his ownership, title and possession of the property in question. The appellee makes no claim there was any error in the assessment of the taxes against the property in question, or that the amount of taxes set forth in the execution was not actually due and unpaid, or that the levy upon the property was in any way invalid. In fact, he concedes that both the execution and the judgment on which it was based were legally sufficient. Hence, we omit any reference to the taxing statutes except to direct attention to K. S. A. 79-2101 which provides in effect that if a tax warrant is issued to the sheriff and is not collected, the county treasurer shall file with the clerk of the district court an abstract of the total amount of unpaid taxes and interest due, plus penalties and costs, accompanied by the last tax warrant and the clerk shall enter the total amount thereof on his judgment docket and said total amount, together with interest at ten percent from date of filing, “. • • shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure . . .” The appellee asserts the outcome of this appeal is entirely dependent upon whether the published notice of sale of the personal property was legally sufficient. He argues that the description of the property as contained therein was not only improper, but was completely erroneous, and the sale and the order confirming it were void. K. S. A. 60-2409 requires that the officer who levies upon and sells personal property give public notice thereof, and reads in part: “The officer who levies upon personal property, shall, before he proceeds to sell the same, cause public notice to be given of the time and place of sale, for at least ten (10) days before the day of the sale. The notice shall be given by advertisement, published in some newspaper printed in the county, or, in case no newspaper be printed therein, by putting up advertisements in five (5) public places in the county, one of which shall be on a bulletin board established for public notices in the county courthouse . . .” In concluding the notice of sale was defective because it described the buildings , and equipment of Lubri-Gel Corporation, the district court ignored the remaining portions of the description contained in the notice of sale. The property advertised to be sold was all buildings and equipment on the Union Pacific Railroad right of way approximately 500 feet west of the city limits of WaKeeney, Kansas. There was only one Lubri-Gel plant in the county and it was owned by the appellee. The fact the notice referred to the property as being owned by Lubri-Gel Corporation rather than Lubri-Gel Company did not mislead prospective bidders and in the exercise of ordinary diligence anyone could have identified the property. The property was subject to examination by bidders and a defect, if any, in the description of the property which does not mislead will not vitiate the sale. (33 C. J. S. Executions, § 211, p. 451.) Moreover, the appellee had actual notice of the issuance of the execution to satisfy his unpaid taxes. While the notice of sale might have been voidable before confirmation by the district court—a point we need not here pass upon—we are of the opinion that the use of the word “corporation” rather than “company” did not render the sale void and it may not be treated as void in a collateral attack like the present action. (Magnolia Petroleum Co. v. Moyle, 160 Kan. 722, 165 P. 2d 419.) See K. S. A. 17-2802A. At most, the irregularity in the notice of sale describing the property was a technical, not a judicial, irregularity. (30 Am. Jur. 2d, Executions, § 32, p. 634.) The appellee concedes there was a valid judgment for unpaid taxes in case No. 4631. Proceedings in that case were final when the district court confirmed the sale. The time for appeal passed without any appeal being taken, and the appellee made no attempt to set the sale aside or correct the error which he now seeks to make available by collateral attack to defeat the sale. Where such an attack is made, unless it is clearly and conclusively made to appeal- that the court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will be held to be valid. (Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135, Syl. ¶ 9.) Since the district court had jurisdiction of the person and the subject matter and the judgment was in all respects legal, the error, if any, in describing the defendant as Lubri-Gel Corporation was not a jurisdictional defect, rendering the acts of the sheriff absolutely void. The sheriff’s official report of all the proceedings, including the notice of sale, was before the court on March 8, 1967, for adjudication at the time of confirmation, and it was expressly found upon examination that the sale and the notice thereof were had as provided by law and all acts of the sheriff were regular and in conformity with the statute. Until reversed or set aside in a direct proceeding instituted for that purpose, the confirmation of an execution sale is conclusive as to everything found by the court that is essential to its regularity. (Schroeder v. Pehling, 20 S. D. 642, 108 N. W. 252; 30 Am. Jur. 2d, Executions, § 322, p. 634.) For reasons above set forth, we are of the opinion the district court erred in entering judgment in favor of the appellee. The judgment is reversed with directions to enter judgment in favor of the appellant. It is so ordered.

The opinion of the court was delivered by Hatcher, C.: This is an appeal from judgments of the district court of Shawnee County in proceedings under K. S. A. 1965 (now 1967) Supp. 38-808 (b) finding that the appellants, then under 18 years of age, were not fit and proper subjects to be dealt with under the Kansas Juvenile Code and directing their prosecution as adults under applicable criminal statutes. William McKinley Stephenson and Leroy Hudson, Jr. were separately charged in the Juvenile Court of Shawnee County, Kansas with committing acts of delinquency on April 28, 1967, by allegedly committing the acts of rape, assault and theft. Each of the juveniles was 17 years of age on the date of the alleged crimes. On application of the county attorney, the judge of the juvenile court appointed a guardian ad litem for each of the two juveniles, held hearings, made findings in line with the language of the statute and entered orders in each case waiving jurisdiction and directing the county attorney to commence prosecutions under the applicable criminal statutes. Each of the juveniles filed an appeal to the district court. As the matters were tried de novo in the district court and the appeals to this court are from the orders of the district court, we are interested only in the alleged errors of the district court, and the proceedings in the juvenile court will be given no further attention. The district court heard evidence, made extensive findings of fact and concluded in each case: I “The record and previous history of the appellant, including contacts with law enforcement agencies, the Juvenile Court and school authorities indicate a continued trend toward anti-social behavior. II “If appellant is found guilty of the alleged offenses, the prospects for adequate protection of the public are poor and there is little likelihood of reasonable rehabilitation of appellant by the use of procedures, services and facilities currently available to the Juvenile Court. III “The alleged offenses appear to have been committed in a willful, violent and aggressive manner. IV “The alleged offenses of appellant include offenses against persons of a serious nature to the community and from which the community requires protection. V “Substantial evidence has been adduced that the offenses alleged are punishable as felonies under the general law of the State of Kansas and that appellant was sixteen years of age or older at the time of the alleged commission of such offenses and that appellant would not be amenable to the care, treatment and training program available through the facilities of the Juvenile Court. VI “Appellant is not a fit and proper subject to be dealt with under the Kansas Juvenile Code.” It was ordered that the appellants be prosecuted under the applicable criminal statutes and the proceedings in the juvenile court be dismissed. The district court’s findings, which were amply supported by evidence of previous offenses, supported the conclusions reached. The two juveniles have appealed and the appeals were consolidated for hearing before this court. The appellants first contend: The judgment is erroneous because the evidence adduced in support of the certification consisted solely of past juvenile delin quent records and there was no evidence in support of the alleged offenses involved in the certification for trial in the district court, and the appellants were not confronted with the alleged victims at the hearing. There is no merit in the contentions. The statute does not require proof of the offenses alleged in the petition in the juvenile court be made at the hearing to determine whether the juvenile court should release its jurisdiction. The above contentions were fully considered and decided in In re Templeton, 202 Kan. 89, 447 P. 2d 158. Out of fairness to counsel for the appellants we should state, however, that at the time the briefs were filed in the case now under consideration the Templeton case had not been decided. Be that as it may, it would serve no useful purpose to extend this opinion by reiterating here what was said in the very recent Templeton case. We incorporate herein by reference what was there said and make it a part of this decision. The appellants would appear to contend that the sole reason jurisdiction of the juvenile court was relinquished was lack of facilities at the Boys’ Industrial School to handle the culprits. We do not so understand the findings or the evidence. The district court had before it a long list of delinquent conduct on the part of both appellants which justified the conclusions of the district court as set out herein. An examination of the record discloses sufficient evidence to support the order relinquishing jurisdiction of the juvenile court and certifying the delinquents to the district court for trial. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Harman, C.: This is a direct criminal appeal from sentences imposed upon guilty pleas. On August 2, 1968, in case No. CR 5076 in the district court of Sedgwick county, Kansas, appellant Michael E. Kelly, while represented by experienced retained counsel, pleaded guilty to two offenses allegedly committed April 4, 1968, namely, robbery in the first degree (robbery of Angee’s Pizza Royal) and possession of a pistol after conviction of grand larceny and possession of marijuana. Upon these pleas appellant was sentenced to the statutory terms of not less than ten nor more than twenty-one years for the robbery and not less than one year nor more than five years for the pistol charge, such sentences to run concurrently with each other. At the same time appellant pleaded guilty to other offenses and received sentences which are the subject of the appeal in State v. Kelly, 204 Kan. 717, 466 P. 2d 351. Thereafter appellant appealed pro se and present counsel was appointed to represent him. Appellant’s sole contention upon appeal is that his pleas of guilty were coerced. Appellant has included in his abstract a letter he wrote to his present counsel more than ten months after he was sentenced. In it appellant stated his pleas of guilty were coerced because the day before he was to be sentenced he was told by the county attorney in the absence of his retained lawyer that if he did not plead guilty to the two offenses charged he would be tried before a jury and the habitual criminal act would be invoked against him, and further, that the next day in court he and his lawyer were served with notice of the habitual criminal act. This letter comprises appellant’s only basis here for his assertion of coercion. The record of the proceedings reveals this question appellant now attempts to raise was never presented to the trial court. With exceptions not here material, an appellate court will not consider questions not presented to the trial court. (State v. Baker, 78 Kan. 663, 97 Pac. 785; State v. Arlis Blair, 197 Kan. 691, 421 P. 2d 22; State v. Blair, 197 Kan. 693, 421 P. 2d 32). A letter to one’s lawyer alleging facts outside a record of trial presents nothing for an appellate court to review. Appellate review of a conviction based upon a plea of guilty is confined to irregularities disclosed by the record and going to jurisdiction or legality of the proceedings. Examination of the proceedings before the trial court reveals that after pleading guilty to each offense charged, appellant in response to careful questioning by the court, stated he was pleading guilty to each offense because he was guilty, and further expressly acknowledged he robbed Angee’s Pizza Royal and that at the time he had an automatic pistol in his possession after having been convicted of a felony. Upon allocution appellant stated he knew of no reason why he should not be sentenced. Under these circumstances the trial court properly sentenced appellant upon his pleas of guilty (Whaley v. State, 202 Kan. 175, 446 P. 2d 397; Mathues v. State, 204 Kan. 204, 460 P. 2d 545; Griffin v. State, 204 Kan. 340, 461 P. 2d 814). No irregularities appear and the judgment and sentences appealed from are affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Fontron, J.: This is an action to recover the balance allegedly due for transporting twenty-nine shipments of dressed beef from Dodge City, Kansas, to various out-of-state destinations. Judgment was rendered in favor of the plaintiff, and the defendant has appealed. There is little dispute regarding the material facts. Between April 27, 1964, and June 5, 1964, the plaintiff, often referred to herein as Graves, carried twenty-nine shipments of dressed beef from Dodge City, where the defendant Hy Plains had its plant, to the metropolis of Wichita, whence it was transshipped to terminals in other states. Graves quoted and collected a rate based on an intrastate rate of forty cents (40‡) per hundredweight to Wichita and an interstate rate from Wichita to points of ultimate destination. In each instance the combined total of the intrastate and interstate rates was less than the current class rate. By way of specific example, on shipments consigned to Arlington, Texas, cargo was first transported by Graves to Wichita, where it was interlined with Jones Truck Line of Springdale, Arkansas, to its final destination at Arlington. The total charge from Dodge City to Arlington quoted by Graves and paid by Hy Plains was $1.41 per hundredweight, computed by adding a rate of 40 cents per hundredweight to Wichita and $1.01 from Wichita to Arlington. This total charge was 50 cents per hundredweight less than the published class rate of $1.91. Other rates quoted by Graves were computed in like fashion and were likewise less than the class rates then in force. Investigation conducted by the Interstate Commerce Commission disclosed that Hy Plains was undercharged on the entire twenty-nine shipments in a total amount of $4,511.60. At the behest of the Commission, Graves commenced this action to recover the entire undercharge. In its answer to the plaintiff’s petition, the defendant alleged that the original charges had been quoted by Graves as being correct; that had defendant not been misled by Graves, it would have used other means of transportation; and that because of Graves’ misstatements and misrepresentations the defendant had been damaged and was entitled to a setoff in the entire amount for which it was sued. Trial was to the court, where Hy Plains orally confessed the petition filed by Graves and stated it was “obligated and indebted to the plaintiff in the amount of $4,511.60.” Trial then proceeded on Hy Plains’ setoff. Evidence was introduced by Hy Plains, and Graves offered no evidence. When trial was concluded the court found as a matter of law that Hy Plains was not entitled to a setoff and rendered judgment for Graves in the amount asked. The defendant poses two questions on appeal. They may be paraphrased as follows: 1. May Hy Plains, as a matter of law, be charged a class rate rather than a duly published rate which is lesser in amount? 2. May Graves, as a matter of law, misquote freight rates without being liable to Hy Plains for damages caused thereby? The first question proposed is somewhat enigmatic. However, in essence it seems to be that it would be unfair to require payment to Graves on a class rate when the published rate of a competing truck line was less than the class rate. Testimony is found in the record that a published rate of $1.65 per hundredweight was charged by Frozen Food Express for shipping dressed beef to Arlington. This rate contrasts with the $1.91 class rate charged by Graves. One of the defendant’s methods of computing its damage was based on this disparity and others similar thereto. In our judgment this evidence presents no justiciable issue and is wholly irrelevant to the central point of this lawsuit, as we trust will more fully appear from our subsequent discussion. The obligations of a common carrier engaged in interstate commerce are governed by the federal Interstate Commerce Act, whose interpretation is a matter for the federal courts. These facts of commercial life were given early recognition by the courts of this state. (See Schenberger v. Railroad Co., 84 Kan. 79, 113 Pac. 433, and cases cited therein.) Under the provisions of the Act, common carriers are required to publish, file and post tariffs, or schedules of rates, and they are obliged to adhere to their published rates. (13 Am. Jur. 2d, Carriers, § 107, p. 647.) Section 217 (b) of the Interstate Commerce Act (49 U. S. C. A., § 317 [6], p. 292) applies specifically to common carriers by motor vehicle and this statute provides in substance that no motor carrier shall charge or collect more, or less, than the rates and charges specified in its published tariffs, nor may the carrier refund or remit in any wise any portion of the rates and charges so specified. Cases have arisen in this court more than once respecting transportation charges. Our latest pronouncement on the subject of undercharges is Kanotex Refining Co. v. Atchison, T. & S. F. Rly. Co., 142 Kan. 139, 46 P. 2d 16, which we believe is of controlling significance in the present case. The facts in Kanotex were as follows: Kanotex had an opportunity to buy some three hundred carloads of crude oil in Oklahoma City for shipment to its refinery in Arkansas City. The published tariff on crude oil between those cities was ten cents per hundredweight. Before buying the oil, Kanotex made an agreement with Santa Fe wherein the latter agreed it would immediately file and make effective a tariff of 6 cents per hundredweight. Relying on this agreement, Kanotex bought the oil and shipped it over Santa Fe lines, but the carrier failed to publish the new rate in time for it to become effective as to the Kanotex oil. Instead, Santa Fe demanded and collected the full 10 cent rate. Kanotex sued to recover damages for breach of contract, but recovery was denied. The substance of the holding is fairly reflected in the syllabus: “Legal rights existing between a shipper and a carrier as to rates in interstate commerce are measured by the tariffs or rates published and on file with the interstate commerce commission. (Syl. ¶ 1.) “No deviation from such published rates can be made on any pretext, and an agreement, the purport of which is to permit the collection of charges at other than the published rates, is of no binding force or effect. (Syl. ¶ 2.) “No act or omission of the carrier can estop it from enforcing payment of the full amount of the charges due, computed according to the published rates on file with the interstate commerce commission at the time of the shipment.” (Syl. ¶ 3.) In Kanotex this court followed and applied the rule generally adopted in this country, a succinct statement of which is found in an annotation in 88 A. L. R. 2d at page 1392: “Although it is often apparent that one who is required to pay shipping charges in excess of the amount which he originally contemplated has suffered pecuniary damages as a result thereof, the courts have been almost unanimous in holding that no action to recover such damages from the carrier will lie, since to do so would amount to a preferential and unlawful rebate.” In pleading its claim of setoff, Hy Plains saw fit to allege that it was misled by Graves and had been damaged by the misstatements and representations of Graves’ agents. However, the evidence set out in the record does not indicate fraud on the plaintiff’s part, and no claim of bad faith was advanced in defendant’s brief or in oral argument. But even if Graves had been guilty of misrepresentation, the result of this litigation would remain unaffected. In 13 Am. Jur. 2d, Carriers, § 108, p. 650, the rule is set out: “. . . Moreover, consistent with the general policy of allowing no one to avoid payment of lawful freight charges, the courts have dismissed the question of the carrier’s honesty or good faith in understating its rates and have held that the intentional misrepresentations are not a defense to recovery by the carrier.” See, also, 13 C. J. S., Carriers, § 393, pp. 873-876 and annotation in 88 A. L. R. 2d, pp. 1388, 1389. In Kanotex, this court discussed the effect of the contracting parties’ good faith on a transaction resulting in an undercharge and came up with this observation: “Good faith and laudable motive or the converse thereof do not enter into the matter, however. . . .” (p. 148.) The defendant suggests that the rationale of Kanotex and kindred cases should be deemed to have no application where class rates are involved. No authority is cited in support of this contention and our limited research has failed to reveal any. While we make no pretense of being learned in the field of public transportation with its accompanying schedules, tariffs and rates, it is our limited understanding that class rates are those which apply to various commodities within a general classification while a commodity rate, by contrast, refers to a particular or specific commodity. (New York v. United States, 331 U. S. 284, 91 L. Ed. 1492, 67 S. Ct. 1207; Board of Public Utility Com’rs v. United States, 21 F. Supp. 543; 13 C. J. S., Carriers, § 276, p. 627.) We see no practical distinction between class and commodity rates so far as this case is concerned. We assume that rates in both categories are established pursuant to the provisions of the Interstate Commerce Act and the rules and regulations which have been promulgated thereunder. As we read the Act all rates must be just and reasonable; must be filed and published; and must not result in favoritism or preferential treatment. Hy Plains does not contend that the class rate to which it objects was not published or that it was not in effect when all of its shipments were transported. No reason has been advanced for presuming that class rates, when applicable, are not equally as binding and obligatory upon shipper and carrier alike as are rates for specified commodities. Although at first glance the result reached in this case may seem harsh so far as Hy Plains is concerned, we must bear in mind that “the purpose of the interstate commerce act is to prevent discrimination or preference . . .” (Kanotex v. Atchison, T. & S. F. Rly. Co., supra, p. 148.) The public policy against discrimination inherent in the requirement that carriers adhere to published tariffs, precludes a shipper from asserting a claim, counterclaim or defense in an action brought by a carrier to recover the full legal charges for transportation. (13 Am. Jur. 2d, Carriers, § 110, p. 651.) Hence courts have been zealous in ruling that a carrier may not, under any pretext, exact transportation charges which are more, or less, than the published, filed and effective rates. To hold otherwise might well open the door to subterfuge, artiface, evasion and chicanery. Finally, the defendant calls attention to the Harris Act. (49 U. S. C. A., §304 (a).) Under the terms of this federal statute, enacted in September, 1965, an action may be commenced for the recovery of “reparations”, which are defined as damages resulting from transportation charges to the extent the Commission, on complaint, finds them to be unjust, unreasonable, unjustly discriminatory, unduly preferential or unduly prejudicial. Since the Harris Act was adopted more than a year after the transactions between Graves and Hy Plains were concluded, it obviously can not control the disposition of this lawsuit, and so much was conceded by Hy Plains at oral argument. Neither do we view the enactment of the Harris Act as effecting a sufficient change in public policy, as expressed by Congressional act, to justify us in reversing this case in the face of our long standing precedents. In conclusion we deem it appropriate to quote the picturesque language of Justice Dawson in Farrar v. Perkins, 122 Kan. 141, 146, 251 Pac. 440, as typifying the principle by which courts have long been bound in cases involving transportation rates. “. . . One specific matter which is regulated by statute with censorious particularity is that of freight rates. The carrier may not charge more and may not accept less than the regularly authorized freight tariffs permit. If the correct freight charge is not paid the carrier is bound to exhaust its available remedies to collect the balance due and compromises which would or might savor of favoritism or of rebates to particular shippers are against public policy. Like a tax collector the railway company must collect the proper charge and may not settle for less. . . No error appears in the judgment entered by the trial court and it is affirmed.

The opinion of the court was delivered by Kaul, J.: This case involves the construction of a provision for “Non-occupational Vehicle Accident Death Benefit” in a policy of life insurance issued by the appellant on the life of Jerry L. Clark, son of the appellees. The facts are not in dispute. On May 26, 1965, appellant issued to Jerry L. Clark a life insurance policy in the face amount of $5,000.00 with double indemnity for accidental death and triple indemnity for accidental death falling within the “Non-occupational Vehicle Accident Death Benefit” provision. The policy was in full force and effect on April 29, 1966, when Jerry L. Clark was killed in an accident. He was driving a motorcycle when he collided with a pickup truck at an intersection in Pittsburg. Appellees, the beneficiaries of the policy, were paid $10,000.00; $5,000.00 on the face amount of the policy and $5,000.00 under the accidental death provision. Appellant refused to pay the triple indemnity benefit and this litigation followed. The provision in question and its caption or heading are as follows: “Non-Occupational Vehicle Accident Death Benefit “If an Accidental Death Benefit is payable, as specified in the Accidental Death Benefit provisions, or would be payable except for the operation of the Reduction paragraph of such provisions, and if the required due proof shows that the injury resulting in the accidental death was sustained by the Insured (a) while driving or riding in a private automobile of pleasure car design (including station wagon or similar body types) not in use for commercial or occupational purposes by the Insured, or (b) as a result of being struck by a motor vehicle while not himself or herself driving or riding in a motor vehicle, or (c) while riding as a passenger in or upon a public conveyance provided by a common carrier for passenger service, the Company will pay, in addition to all other benefits provided by the policy, a Benefit equal to the face amount. If this Benefit becomes payable, it will be added to the proceeds otherwise payable under the policy.” (Emphasis supplied.) The question is whether the terms of the provision are ambiguous. After pleadings were filed and issues joined, appellant filed a motion for summary judgment which was heard and overruled by the trial court on the grounds that the question whether the policy was ambiguous was an issue of fact, not determinable by summary judgment. Thereafter, a pretrial conference was had following which the trial court entered a pretrial order in which essentially the same rulings were made as those announced on the overruling of appellant’s motion for summary judgment. Pertinent portions of the pretrial order read as follows: “3. The court determines the following to be questions of fact to be determined in the case: (a) Whether or not the insurance policy provision is ambiguous; (b) Whether or not plaintiffs are entitled to the rule of favorable construction. “4. A question of law is presented as to whether or not parole (sic) evidence is admissible concerning the interpretation of the policy by insurance agent of defendant. The court rules that a question of fact being present on ambiguity of the policy provisions, parole (sic) evidence is admissible to explain the intention of the parties to the insurance policy and evidence of the interpretation of the policy by insurance agents of defendant is admissible.” The case proceeded to trial on the issues set out in the pretrial order. Testimony of a number of witnesses, concerning the interpretation of the provision in question, was submitted by appellees over the objection of appellant. Thereafter, appellant presented the testimony of several witnesses to the effect that the provision was not ambiguous. The trial court found the provision ambiguous; that parol evidence was admissible; and it was the intent of the parties that a benefit of triple indemnity would be paid for the death of the insured from a “non-occupational vehicle accident.” After hearing further evidence on the issue of attorney fees, the trial court found that appellant had refused, without just cause, to pay the loss and allowed a reasonable attorney fee to appellees’ attorney. On appeal appellant claims error by the trial court in ruling that ambiguity was a question of fact; that parol evidence was admissible regarding the interpretation of the policy; in failing to sustain appellant’s motion for summary judgment; in finding the policy provision ambiguous; and in allowing attorney fees. Whether a written contract is ambiguous is a question of law. (West v. Prairie State Bank, 200 Kan. 263, 436 P. 2d 402; and Kittel v. Krause, 185 Kan. 681, 347 P. 2d 269.) The same rule applies to a written contract of insurance. (1 Couch on Insurance 2d, § 15.3, p. 638; and Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P. 2d 477.) If the facts are admitted, it is the province of the court to deter mine whether they come within the clear and unambiguous terms of a policy of insurance. (1 Couch on Insurance 2d, § 15.3, pp. 638, 639.) In the Goforth case, decided January 25, 1969, subsequent to the trial of the instant case, we held: “As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court. If the facts upon which a beneficiary relies to recover on the policy are admitted, then it is for the court to decide whether they come within the terms of the policy, and such determination may be made pursuant to a motion for summary judgment.” (Syl. ¶ 1.) On appeal appellees’ counsel candidly admits the trial court should have found the question of ambiguity to be one of law. However, it is contended the matter is of no consequence since the same trial procedure would have been followed and thus the rights of appellant were not prejudiced by the trial court’s erroneous rulings. We are inclined to agree with the appellees’ theory as to the nonprejudicial effect of the trial court’s ruling if the policy were ambiguous but, as to this, we cannot agree. Refore proceeding further with the question of ambiguity we should first consider the nature of the provision in relation to the policy as a whole. The provision is not a part of the basic contract between the parties but rather it provides for an additional benefit under the circumstances set out. It is not an exclusionary or reduction clause. The reduction paragraph of the accidental death benefit provision, mentioned in the first sentence of the provision, refers to a reduction of the accidental death benefit in case a payment had been made prior to death for the loss of sight or limbs, as a result of the same accident. The reduction paragraph referred to is not a reduction of benefits but only serves to avoid duplication of benefit payments and has no bearing on any of the issues here. The provision in question is not an exclusionary clause, as contemplated in Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681. It does not grant and then take away; it only provides for a triple indemnity benefit, conditioned on the factors set forth therein, in addition to the benefits provided for in the other insuring agreements of the policy. Returning to the question of ambiguity, we note rulings of this court dealing with the subject and pertinent to the issue in the case at bar. When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.) To be ambiguous the contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. (Goforth v. Franklin Life Ins. Co., supra; Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P. 2d 352.) Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Goforth v. Franklin Life Ins. Co., supra; Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803; Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P. 2d 808; Braly v. Commercial Casualty Ins. Co., supra.) Looking at the policy, from the view of an ordinary insured, we find three benefits provided: (1) An ordinary death benefit; (2) a double indemnity accidental death benefit; and (3) a triple indemnity accidental death benefit, under the provision in question. From our examination of the provision we believe an average insured would clearly recognize that a triple indemnity benefit would be payable under (a) only when an insured is accidentally killed while driving or riding in a private passenger automobile for pleasure, or under (c) while riding as a passenger of a common carrier. In the instant case, the insured was not driving or riding in a private automobile for pleasure nor was he a passenger of a common carrier. If covered, the accident resulting in the death of insured must fall within part (b), which we recite again: . . or (b) as a result of being struck by a motor vehicle while not himself or herself driving or riding in a motor vehicle, . . What coverage would the average or ordinary insured attach to part (b) ? We think an ordinary insured would readily discern that two conditions must exist in order to establish coverage under (b). First, the insured must be struck by a motor vehicle and, second, at a time when he was not driving or riding in a motor vehicle. In this case the insured was struck by a motor vehicle but he was driving a motorcycle at the time. If a motorcycle is a motor vehicle, within the ordinary meaning thereof, then coverage under part (b) does not attach. We think an ordinary insured would commonly understand a motorcycle to be a motor vehicle. It is so defined by statute. (K. S. A. 8-126 [d], 8-234 [b], and 8-501, now K. S. A. 1969 Supp.) We believe any ordinary insured would consider a motorcycle to be a vehicle driven by a motor and within the purview of the term “motor vehicle.” The primary risk contemplated by (b) clearly appears to be that of a pedestrian exposed to motor vehicle traffic. The language used, however, extends coverage beyond that of strict pedestrian classification by covering any insured who is not driving or riding in a motor vehicle. Thus an insured, though not a pedestrian but driving or riding in a non-motor driven vehicle (i. e., a bicycle), would still be covered. We believe the terms “automobile,” “motor vehicle” and “vehicle” are of such common usage that an insured would understand the more limited aspects of the term “automobile,” the broader facets of the term “motor vehicle” and that the term “vehicle” may include almost any means of conveying property or persons. (7 Am. Jur. 2d, Automobile Insurance, § 99, p. 406; 12 A. L. R. 2d, Anno., p. 598; 39 A. L. R. 2d, Anno., p. 952; and 78 A. L. R. 2d, Anno., p. 1044.) If a policy of insurance is clear and unambiguous, the words are to be taken and understood in their plain, ordinary and popular sense, as an average or reasonable person with ordinary understanding would construe them, when used to express the purpose for which they were employed in the policy. (44 C. J. S., Insurance, § 294, pp. 1156-1159; Goforth v. Franklin Life Ins. Co., supra; Fowler v. United Equitable Ins. Co., 200 Kan. 632, 438 P. 2d 46. Eliminating inapplicable alternatives, the phrase applicable to the facts of this case “while not himself . . . driving . . . a motor vehicle” is clear and unambiguous and does not require judicial interpretation or the application of rules of liberal construction. (Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P. 2d 107; Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P. 2d 396; 43 Am. Jur. 2d, Insurance, § 259, p. 316.) Appellees claim the policy is ambiguous because the words “or riding in” are used as an alternative in part (b) rather than the words “on” or “or upon.” There is no question but that insured was driving a motor vehicle—a fact directly within the purview of part (b). Therefore, whether he was “riding in a motor vehicle” is immaterial and need not be determined. The provisions of an insur anee policy are to be construed in the light of the facts of the case. (Standard Life & Accident Insurance Co. v. Hardee, [Tex. Civ. App.], 330 S. W. 2d 544; 78 A. L. R. 2d, Anno., p. 1044.) The fact that terms of a policy of insurance may be construed as ambiguous, when applied to one set of facts, does not make them ambiguous as to others which come directly within the purview of such terms. (Smith v. Mutual Benefit Health & Acc. Ass’n, 175 Kan. 68, 258 P. 2d 993.) While unnecessary for our disposition of the case, we have, nevertheless, examined the interpretation appellees seek to give the word “in” as used in the phrase “riding in a motor vehicle.” Appellees argue that a motorcycle was not contemplated by appellant in drawing the contract because one does not “ride in” a motorcycle, and thus, when the term “motor vehicle” was used as the object of the sentence in part (b), it is contended that motor vehicle actually means only automobile, and as such could not include motorcycle. The narrow meaning which appellees seek to attach to the word “in,” when used as a preposition in a phrase such as that in part (b), is contrary to the meaning attached by most courts when called upon to deal with the subject. (39 A. L. R. 2d., Anno., Accident Insurance—“in or on” car, p. 952.) Appellees suggest inconsistency between the caption and the terms of the provisions. The benefit in question here is a part of the policy which sets out benefits supplementary to the basic policy. The provisions of each supplementary benefit are preceded by a caption or heading such as ‘Waiver of Premium Benefit,” “Accidental Death Benefit” and that with which we are concerned “Nonoccupational Vehicle Accident Death Benefit.” The caption here is not an insuring provision; it is merely a heading or a title which standing alone would be inoperative. While it does not describe the additional supplementary benefits accruing to a pedestrian in part (&), or to a public conveyance passenger in part (c), it cannot be said to be misleading or to create an ambiguity. Part (a) supplies that which is described in the caption. The undisputed facts are that the insured was driving a motor vehicle when he met his accidental death. Such being the case it is for the court to decide whether the facts come within the terms of the policy, and such determination may be made pursuant to a motion for summary judgment. (Goforth v. Franklin Life Ins. Co., supra.) Appellant’s motion for summary judgment should have been sustained. In view of our disposition of the case the matter of attorney’s fees does not require consideration. The judgment is reversed.

The opinion of the court was delivered by PIarman, C.: This is an action to set aside a gift of a $25,000 savings account. Essentially the contest is between the donor’s widow and his sister. Trial to the court resulted in a judgment for the donee defendant, from which plaintiff has appealed. Plaintiff Geraldine Herman initiated the action as administratrix of the estate of her late husband, Lloyd G. Herman, and later had herself joined as a plaintiff as his widow. She has continued the action in both capacities. We highlight pertinent events. In 1961 Lloyd G. Herman was accidentally injured by electricity and as a result both his legs were amputated. For this injury he received a settlement award, out of which he placed $25,000 on deposit in a savings account in a Garden City, Kansas, bank. This amount remained there until he withdrew it in January, 1967, and is the source of the account in dispute here. For some time in 1962 and 1963 Lloyd lived at Nevada, Missouri, with Geraldine as his housekeeper. Both had previously been married and divorced. Geraldine had three children. On June 17, 1964, Lloyd and Geraldine entered into an antenuptial agreement and on August 29, 1964, were married. She had no property other than her clothes and her only job experience had been that of a waitress. Her formal education ended with one year of high school. Prior to the marriage Lloyd purchased a home in Garden City for $8,000, paying $2,000 down and agreeing to pay the balance in monthly payments of $52.27. Later, in 1966, Lloyd and Geraldine bought a rental house nextdoor for $600.00, taking title as joint tenants. Lloyd, Geraldine and her three children lived in the Garden City home. They had social security and Veterans Administration payments aggregating $389.00 per month. Lloyd worked some on a part time basis and Geraldine worked about two years at Woolworths. They maintained a joint checking account in the Garden City bank out of which family expenses were paid. Lloyd continued to maintain the separate savings account in his own name. Marital trouble arose in late December, 1966, after Lloyd had a heart attack. Geraldine left the home January 11, 1967. On January 15, 1967, she withdrew all the money in the joint checking account. On January 16 Lloyd withdrew his entire savings account. On January 17 he went to Victoria, Kansas, his boyhood home, and there deposited in the Farmers National Bank $25,000 of that money in a savings account in his own name. The account was marked payable on death to Wilfred Herman (Lloyd’s brother) and Helen Goetz (Lloyd’s sister, defendant-appellee herein). Lloyd also put $1,300 in a checking account at the Victoria bank. On January 20 Geraldine commenced divorce proceedings in Finney county, Kansas, and had Lloyd personally served with summons that day. On January 21 Lloyd returned to the Victoria bank with his mother and his sister Helen and had the savings account put in Helen’s name. This account is the target here. On January 24 Lloyd filed his answer and cross-petition in the divorce proceeding, alleging among other things the existence of the antenuptical agreement. On February 8, 1967, Lloyd died as a result of a heart attack. The evidence will be related in more detail when pertinent to the questions involved. In ruling against appellant the trial court made findings of fact and conclusions of law. In effect it upheld the validity of the antenuptial contract, ruled the transfer of the savings account to appellee was a valid gift inter vivos, that appellant’s rights to a property division as a spouse terminated upon Lloyd’s death and the lis pendens statute (K. S. A. 60-2201 [a]) did not operate to bar the gift. The court found the antenuptial contract was a valid and binding contract freely and voluntarily entered into prior to the marriage and in consideration of the marriage, that appellant had full knowledge of Lloyd’s property, the agreement was fairly and understandably made, was just and equitable in its provisions, and was free from fraud and deceit. In essence the agreement provided that during the marriage each party was to continue to have the exclusive use and control of his own property, each was to have the right to sell, convey or transfer his own property as though he or she was unmarried; each released, disclaimed and waived any interest in the property of the other by reason of the marriage, and each agreed such property should pass to heirs at law, devisees or legatees of each as though no marriage were ever consummated. Nothing in it could be construed as encouraging á separation. Appellant contends the court erred in its findings and conclusions that the agreement was fairly, justly and equitably made and was free from fraud and deceit. Her argument here is that the contract must be inequitable if by reason of it Lloyd could transfer away from his wife a large part of his property. This position does not really come to grips with the question. Appellant recognizes the general rule in this state that persons competent to contract may execute an antenuptial agreement and determine for themselves what rights they will have in each other’s property during their marriage and after its termination by death, and such a contract will be upheld where it is fairly and understandably made, is just and equitable and is not obtained by fraud or overreaching (Dunsworth v. Dunsworth, 148 Kan. 347, 81 P. 2d 9; In re Estate of Schippel, 169 Kan. 151, 218 P. 2d 192). The consideration for an antenuptial contract may be any valuable consideration, reciprocal stipulations or the marriage alone (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; In re Estate of Ward, 178 Kan. 366, 285 P. 2d 1081). In Gordon v. Munn, 87 Kan. 624, 125 Pac. 1, this court held: “If the intended wife is competent to make a contract and has a fair and adequate knowledge concerning the future husband’s property when she enters into an antenuptial agreement, which is free from deceit or fraud, it should not be set aside merely because the court or jury find that the provision made for her is in great disproportion to his property.” (Syl. ¶ 5.) In Watson v. Watson, 104 Kan. 578, 180 Pac. 242, this court referred to and amplified the foregoing by holding: “An antenuptial contract must be upheld unless some fraud, deceit or unreasonable inadequacy or disproportion appears. If the latter appear, the presumption of fraud is raised, and the burden is on the husband or those claiming under him to show that the wife was fully informed as to his property.” (Syl. ¶ 5.) Then in In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, this court stated: “Unreasonable inadequacy of a provision for the intended wife, or disproportion of the share she will receive, cannot be concluded from the con tract alone. What is inadequate or disproportionate can only be determined from a consideration of all the circumstances. Not only is the amount of the husband’s property a factor—consideration should be given to the situation of the parties, their respective ages, as compared to each other, their respective property, their family ties and connections, and the whole circumstances leading up to the execution of the contract and their marriage, the question in the end being whether, in view of all the facts, the intended wife was overreached.” (pp. 552-553.) The evidence favorable to appellee reveals Lloyd and Geraldine were well acquainted with each other for some time prior to their marriage. Geraldine was fully aware of his financial affairs prior to the marriage, she knew the net amount of his settlement, and both before and after the marriage she assisted him in handling financial transactions. Prior to the marriage the two went to the office of a Garden City attorney who at Lloyd’s request had drawn the antenuptial agreement. Geraldine had a copy of the agreement prior to the time she signed it. The attorney explained each paragraph. He told Geraldine she could ask any question about the agreement and also that she should seek independent legal advice. Lloyd made full disclosure of his property to Geraldine in the lawyer’s presence. Geraldine’s own trial testimony indicated she was not unaware of what she was doing in signing the antenuptial contract. Geraldine’s age was thirty-one at the time of trial in January, 1968. Lloyd’s age was not revealed in the record but his physical condition was. There was no concealment or misrepresentation as to property. We need not labor the point. The basic issue is whether the intended wife was overreached (In re Estate of Cantrell, supra). The trial court found she was not and we must say that finding is substantially supported by the evidence. The contract must be treated as a valid and enforceable one, binding on Geraldine insofar as property rights are concerned. Appellant also challenges the trial court’s finding and conclusion that a valid inter vivos gift of the $25,000 savings account was made by Lloyd on January 21, 1967, in effect arguing insufficiency of evidence to show Lloyd intended to relinquish control of the account. Shortly prior to January 21 Lloyd had several times expressed his desire to get rid of the savings account because of the grief it was causing him. He had tried to give it to a brother and also to another sister. His expressed desire was to be permanently rid of it although he indicated he did not want Geraldine to have any of it. There was testimony Geraldine had said she deserved the money and was going to get it, that she was going to show him it was as much hers as it was his. Lloyd went to the home of his sister, appellee, in Russell, Kansas, and told her he was going to give her his money. Appellee said she would accept it. No conditions were attached to the gift. Lloyd said he was receiving plenty of money from the government upon which he could live. Appellee indicated to Lloyd he could make his home with her. Lloyd also discussed with her arrangements for him to operate a beer joint in Russell. Lloyd, his mother, and appellee went to the Victoria bank. We will only summarize the evidence as to the transaction there. At Lloyd’s direction, the banker prepared the necessary papers evidencing transfer of the savings account to appellee. Lloyd delivered a deposit slip and passbook in appellee’s name to appellee, stating it was hers and she was now the owner. The banker had previously explained the effect of the transaction, that Lloyd had lost complete control of the account and it could only be withdrawn by appellee. Afterward Lloyd several times expressed his relief and satisfaction that the transfer had been made. In Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878, this court set forth the requisites of a gift inter vivos as follows: “To establish a gift inter vivos there must be (a) an intention to make a gift; (b) a delivery by the donor to the donee; and (c) an acceptance by the donee. The gift must be absolute and irrevocable. (Syl. ¶ 3.) There it was also pointed out the elements of intent, delivery and acceptance are usually questions of fact to be determined by the trier of the fact. That is the case here and we cannot, as urged, reweigh the credibility of the witnesses who testified upon the subject and declare Lloyd never really intended to make a gift. Upon our limited review we can hold only that the trial court’s finding Lloyd effected a valid inter vivos gift of the account is supported by substantial evidence. Appellant contends the doctrine of lis pendens (K. S. A. 60-2201 [a]) should come to her rescue inasmuch as the transfer of the savings account was made after she had commenced her divorce proceeding. She cites and relies on Craig v. Craig, 110 Kan. 13, 202 Pac. 594, and Graham, v. Pepple, 129 Kan. 735, 284 Pac. 394. Neither case is helpful to her. In Craig this court stated: “The death of a party to an action for a divorce, pending its appeal, abates the action or appeal so far as it affects the marital status, but it does not neces sarily abate the action or appeal so far as property rights are concerned.” (Syl. ¶ 5.) (Our emphasis.) The above case is inapplicable for two reasons. In it there was great fraud in the transfer of property from one spouse to the other. Here no fraud was involved. Secondly, the case dealt with property rights between the parties. Here the property rights had already been determined by the antenuptial contract. In Graham, as well as in other cases cited by appellant, there was no antenuptial contract and the lis pendens doctrine was applied to specific realty described and claimed in a divorce petition. In Travis v. Supply Co., 42 Kan. 625, 628, 22 Pac. 991, this court stated the three elements of a valid and effective lis pendens are: (1) The property must be of a character to be subject to the rule of lis pendens; (2) the court must acquire jurisdiction both of the person and the property; and (3) the property must be sufficiently described in the pleadings. The litigation must be about some specific thing or property which will be affected by the termination of the suit (54 C. J. S., Lis Pendens, § 4, p. 574). Here it must be borne in mind we are dealing with specific property—the $25,000 savings account—nothing more. The record reveals appellant has received the two Garden City homes, one of which she sold and the other she has rented. We are not concerned with them. Nor are we concerned with unadjudicated conjugal rights springing from the marriage relation which may not have been affected by the antenuptial contract (see 2 Lindey, Separation Agreements and Ante-nuptial Contracts, rev. ed., § 90, ¶¶ 13A & 13B) but which were terminated upon Lloyd’s death. We are concerned with property rights which were determined by the antenuptial contract. Lloyd validly conveyed the property prior to his death and it was not subject to the rule of lis pendens. The judgment appealed from is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Schroeder, J.: This is an action for permanent damage to plaintiffs’ property caused by a change of grade at Kansas Avenue, between Crane and First Streets in the City of Topeka, by the construction of an approach to the new bridge across the Kansas River at Kansas Avenue. The trial court sustained the defendant City’s motion for summary judgment on the ground the plaintiffs failed to comply with the provisions of K. S. A. 12-105. Appeal has been duly perfected. The only question presented on appeal is whether the plaintiffs were required to give the three-month notice required in K. S. A. 12-105 as a condition precedent to sustaining an action. The facts giving rise to this action are not in dispute. They are established by the pleadings, stipulations, an affidavit and an exhibit. By ordinance No. 624 the City of Topeka (defendant-appellee) established the grade elevation at the Kansas Avenue intersections o£ Crane and First Streets. There has been no amendment or change in the grade or the ordinance establishing grades at these intersections. By reason of the construction of flood control levies along the south bank of the Kansas River, it was necessary to increase the elevation of the new bridge and the south approach on Kansas Avenue leading to the new bridge. Barricades were constructed in front of the property of Samuel E. Lux, III and Geraldine Lux (plaintiffs-appellants) on the 12th day of October, 1965; construction on the south approach to the bridge was commenced September 13, 1965; the construction was completed and the new bridge opened for traffic on April 30, 1967; the appellants filed a written claim for damages with the City on March 29,1967, and suit was filed on May 19, 1967, claiming $75,000 damages to their property by reason of the construction which changed the grade of Kansas Avenue in front of their property. In sustaining the City’s motion for summary judgment the trial court held the appellants failed to comply with the provisions of K. S. A. 12-105. The trial court found the date of injury was' no later than October 12, 1965, when the barricades were constructed and the street abutting the appellants’ property was torn up. The trial court held the statute applicable; that there was a permanent appropriation for the taking of a property right; that the claim filed by the appellants was not timely made; and that the statute expressly prohibits the maintenance of an action without filing the claim within the time required. K. S. A. 12-105, insofar as it is material herein, provides: “No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: . . .” The appellants concede in an action for negligence against a municipality a claim for damages must be served on the City within three months after the happening of the accident or event which caused the injury or damage. The appellants contend, however, there was no necessity for the filing of a claim in this case because their claim is in the nature of an inverse condemnation claim and not one for negligence. This point is well taken. The basis of the appellants’ claim is the statutory duty of a city to pay damages to an abutting property owner when the city changes a previously established grade on a street. K. S. A. 13-1019 provides: “The governing body may by ordinance establish the grade of any street or alley, and when the grade of any street or alley shall have been so established, said grade shall not be changed until a resolution shall have been passed by a three-fourths vote of all the councilmen elected declaring it necessary to change said grade.” K. S. A. 13-1020 provides: “When such resolution is passed declaring it necessary to change any grade, the governing body shall proceed pursuant to the procedure required for the exercise of the power of eminent domain in accordance with sections 1 to 16 [26-501 to 26-516], inclusive, of this act.” In the instant case the City failed to comply with these statutes. Before the turn of the century the Kansas Supreme Court construed the provisions of ordinance No. 624 establishing the grade on Kansas Avenue and discussed the duty of the City of Topeka when it changes an established grade in a case entitled City of Topeka v. Sells, 48 Kan. 520, 29 Pac. 604 (1892). The court in Sells said the requirements of the statute (now appearing as K. S. A. 13-1019 and 13-1020) in plain terms cast the duty upon the City of making a proper appraisement of damages; and that such duty was a condition precedent to the exercise of the right to change the grade. The court held the statute confers a positive right to such damages, saying: “. . . The statute was passed for the benefit of the city, the operative machinery of the law was given into the custody of the city the better to enable it to accomplish the purposes of the statute, and the city authorities cannot openly omit to do the things required of them and then be protected against all claims for damages that arise out of their own neglect of duty. We think this action is properly brought and can be successfully maintained. . . . (pp. 532, 533.) The subject was pursued in Atchison Ice Co. v. City of Atchison, 172 Kan. 94, 238 P. 2d 531. There a viaduct was constructed resting on piers with its floor over twenty feet above the former established grade, but the change in grade did not occupy the entire street in front of the plaintiff’s property, as here. In an exhaustive opinion the court held G. S. 1949, 13-1019, et seq., applicable, saying: “. . . The question is not whether a means of ingress and egress remains in the appellees, although that may enter into the amount of damage, but whether, under the statute, there has been a change of grade, bringing the statute into action; or stated another way, do the admitted facts show there was a change of grade so that appellees may prove and recover their damages, if any? The failure of the city to follow the course of procedure outlined in the last cited statutes, will not preclude the owners from maintaining these actions (City of Topeka v. Sells, 48 Kan. 520, 29 Pac. 604).” (p. 97.) In Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934, it was claimed the state highway commission had taken the right of access to a controlled access highway without obtaining the right of access by condemnation or otherwise. There the court held, where the right of eminent domain had not been exercised by the state highway commission and an abutting property owner was aggrieved because he felt that his access to a controlled highway had been unreasonably restricted, the remedy was by way of an action for damages in the nature of a suit on an implied contract. Such an action may be characterized as an inverse condemnation action. The situation in the instant case is analogous because the City did not follow the statutory mandate to determine the damages sustained by the appellants prior to the change in grade on Kansas Avenue as it was required to do under the condemnation law. Accordingly, we hold the action filed by the appellants herein is in the nature of a suit on an implied contract. This court has recently held in Stauffer v. City of Topeka, 200 Kan. 287, 436 P. 2d 980, the provisions of K. S. A. 12-105, requiring the filing of a written statement of injury to person or property as a prerequisite to the bringing of an action against a city, have no application to an action for breach of a written contract. In the opinion it was said the statute had “application only to actions for injury to persons or property, i.e., tort actions.” (p. 289.) In his work on “Municipal Law” (1957) Charles S. Rhyne states in § 17-20: “The constitutional provision requiring the payment of just compensation is self-executing and a landowner may enforce his constitutional right to compensation in common law action. And the filing of a claim by an owner against the city is not necessary in an eminent domain proceeding instituted by the city.” (p. 409.) The author of “Municipal Law,” above, discusses the necessity of filing a written claim and states in § 30-32: “. . . Statutory notice required for negligence actions is not necessary . . . for a suit based on implied contract rather than tort; . . .” (p. 788.) No reason exists under the circumstances here presented why an action based upon a written contract should be treated differently from one based upon an implied contract. We therefore hold the appellants were not required in the instant case to give the City the three-month notice provided in K. S. A. 12-105 because their action is based upon an implied contract calling for the payment of damages as the City was directed to do by the provisions of K. S. A. 13-1019, 13-1020 and K. S. A. 26-501, et seq. The dictum upon which the appellee relies in Wildin v. City of Hutchinson, 177 Kan. 671, 282 P. 2d 377, to the contrary, is disapproved. (See Wong Kee Jun v. Seattle, 143 Wash. 479, 255 Pac. 645, 52 A. L. R. 625.) The judgment of the lower court is reversed.

The opinion of the court was delivered by Harman, C.: At issue here is distribution of a workmens compensation award between the dependents of a deceased workman. The contestants are the widow and a minor child born of a previous marriage. The workman, Warren Emery Richardson, was accidentally killed November 28, 1967, while in respondent’s employ. Claim for compensation was duly made by his widow and by the minor child. All issues essential to recovery of compensation except those of dependency were stipulated favorably to the claimants. The evidence upon the disputed issue revealed the following: Warren I. Richardson, appellant herein, is a son of decedent by a previous marriage with Ann M. Rico, having been born March 27, 1954. Decedent and Ann were divorced December 9, 1959, in Roswell, New Mexico. Appellant’s custody was granted to Ann. The divorce decree provided that decedent should pay $30.00 per month toward appellant’s support. Ann married her present husband, Angel L. Rico, on December 23, 1959. Decedent was then in the United States Air Force. By means of a service allotment he commenced making the $30.00 support money payments and continued them until his retirement from the air force in November, 1965. Thereafter, he was having financial difficulties and, with Ann’s consent, he made only insignificant payments toward appellant’s support. Appellant was supported by his mother and stepfather. Decedent did arrange for service benefits to be paid appellant in the event of his death. During the time the $30.00 monthly payments were received, they were not sufficient to take care of appellant’s needs and additional provision had to be made by Ann and her husband. Appellee Peggie M. Richardson married decedent March 18, 1965, and remained his wife until his death November 28, 1967. She had never been employed and had no other source of income while married, being dependent upon decedent for her support. Based upon the foregoing the examiner found the widow was a wholly dependent person within the meaning of the workmen’s compensation law and that the minor was a partially dependent person and, pursuant to the workmen’s compensation director’s rule 51-10-4, he awarded full compensation to the widow with nothing to the minor. These findings and the award were approved by the director and upon appeal were adopted by the district court and incorporated in its judgment. The minor has appealed to this court. The director’s rule 51-10-4 provides in part: .“Where there are both wholly dependent persons and partially dependent persons, the wholly dependent persons are entitled to all compensation due to the complete exclusion of the partially dependent persons.” Appellant does not challenge this rule nor its application to the facts found. His sole contention is that the trial court erred in failing to find he was a wholly dependent person within the meaning of the compensation law and in failing to order an apportionment of the award between him and appellee. K. S. A. 44-508, as amended, sets forth the following definition: “(j) ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only legal widow or husband, as the case may be, and children; . . .” K. S. A. 1967 Supp. 44-510 provided; “The amount of compensation under this act shall be: “(2) Where death results from the injury, (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three (3) times his average yearly earnings, computed as provided in K. S. A. 44-511, but not exceeding sixteen thousand five hundred dollars ($16,500) and not less than two thousand five hundred dollars ($2,500): “(b) If a workman does not leave any such dependents but leaves dependents in part dependent on his earnings, such percentage of the sum provided for total dependency in paragraph 2 (a) of this section as employee’s average annual contributions which the deceased made to the support of such dependents during the two (2) years preceding the injury bears to his average annual earnings during a contemporaneous period, during such two (2) years. “(c) The director shall have the power and authority to apportion the compensation allowed under either subsection (a) or subsection (b) hereof in accordance with the degree of dependency as of the date of the accident. Appellant relies upon three of our decisions in contending he should be declared to be wholly dependent upon the deceased workman. The first two were Wade v. Scherrer & Bennett Const. Co., 143 Kan. 384, 54 P. 2d 944, and Thomas v. Bone, 191 Kan. 453, 381 P. 2d 373. In Wade a minor daughter of the deceased workman was the only claimant of compensation. The child’s parents were divorced and she had been living with her maternal grandparents. The mother had made only inconsequential contribution to the child’s support. The father had left the family home prior to the divorce and had made no contribution to the child’s support since the divorce. He had later returned to Cowley County, Kansas, where his former wife resided. He was then in poor health and unable to work but he urged a remarriage and made promises to support both his former wife and his daughter when he was able. He had obtained employment for only a short period of time prior to his death but had made no contribution to the daughter. The trial court found there was a reasonable probability the father’s obligation of support would have been fulfilled and further found the daughter was wholly dependent upon the deceased. Upon appeal this court affirmed, reviewing certain authorities and stating: “These authorities sustain the view that a dependent of a deceased workman, within the meaning of the workmen’s compensation law, must be within that class of persons named in the statute as dependents, and must be in fact dependent, in whole or in part, on the workman at the time of the accidental injury which results in death. They also hold that whether one who claims to be a dependent is within the class defined by the statute, and if so whether he was dependent on the workman at the time of his fatal injury, and if dependent whether wholly or in part dependent, and if only partially dependent the degree of dependency, are questions of fact to be determined by the commission or court provided by statute for weighing evidence, passing on credibility of witnesses, and determining the facts in compensation cases. In this state, so far as this court is concerned, the fact-finding tribunal is the district court. Our own decisions, insofar as we have treated the questions, are not out of harmony with the authorities above cited. [Citations.] “The fact that the workman had not used his wages for the support of the one claiming as a dependent does not necessarily defeat the claim; if so, the workman’s child born after his fatal injury would not be a dependent, as they are universally held to be. . . . Neither is compensation as a dependent necessarily defeated by the fact that a minor child of the workman for a time prior to his fatal injury had been temporarily cared for and maintained by charity, or by relatives or friends under no legal obligation to do so. . . . The child, being itself helpless, is by nature dependent on its parents, and particularly on the father, if he is the wage earner. The law makes the support of the child the duty of the parents, particularly of the father. The natural dependency is as strong or stronger than the legal dependency, but both exist. They cannot be ignored, but must be taken into account in determining the ultimate fact, namely, was the child a dependent of the workman at the time of his fatal injury? Circumstances may exist, certainly can be imagined, in which the trier of facts would be justified in finding—perhaps forced to find— that this natural and legal dependency had no practical value, in fact was worth nothing; hence, to be of no aid in supporting a claim of dependency. On the other hand, as in this case, the facts may be such as to indicate that this natural and legal dependency would be worth as much to the child, or substantially so, as though the workman, prior to his fatal injury, had been paying from his wages for the support of the child. In effect the commissioner and district court so found. This was a question of fact, and we examine that finding here only to see whether there was substantial competent evidence to support it. . . . There is an abundance of evidence that the workman planned and intended to support claimant as soon as his health and his employment made it possible for him to do so, and on that point there was no conflicting evidence. We cannot say these facts did not justify the finding that the claimant was wholly dependent on the workman, and that this dependency had a practical substantial value.” (Emphasis supplied.) (pp. 392-394.) The Thomas case was similar in that a minor child was the only claimant of compensation and the fact-finder held in its favor. The workman and the child’s mother had divorced and the mother had remarried. Part of the child’s necessities were supplied by the stepfather. The workman had made some support money payments as ordered in the divorce decree but not all. The trial court found as a fact there were both actual support and reasonable expectation of future support on the part of the workman and it held the minor was wholly dependent upon the workman. This court affirmed saying: “Our continuing rule has been that if the evidence supports the finding of the trial court in regard to dependency, this court will not disturb such finding on appeal.” (p.455.) The court also commented: “There may have been some other evidence upon which the trial court could have made other findings but that is not our present concern in view of all that has been stated herein.” (p. 456.) Thus both Wade and Thomas differ from the case at bar in that there was no other claimant to compensation in either of them and the fact-finder, on differing evidence, ruled favorably on the issue of total dependency. The third case relied upon by appellant is Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P. 2d 463. Here there were two sets of claimants to compensation—on one side the widow and four children and on the other, two children by a previous marriage. The trial court made an apportionment of compensation between the two sets, finding both to be wholly dependent upon the deceased workman. A third party was supporting the two children from the prior marriage and challenge was made upon appeal to their entitlement to a part of the award. In refusing to disturb the trial court’s order this court pointed out the trial court had found that the third party had supported the children under an oral contract with the workman and upon his credit. We have no such situation here. All our cases declare that whether a claimant is a dependent of a deceased workman is a question of fact and such dependency is to be determined as of the date of the accident (5 Hatcher’s Kansas Digest, rev. ed., Workmen’s Compensation, § 55). Further refinement of the rule is found in Peters v. Peters, 177 Kan. 100, 276 P. 2d 302, in which it was stated: “The degree of dependency in a workmen’s compensation case is a question of fact and findings with respect thereto will not be disturbed on appellate review when there is any evidence to support them.” (Syl. ¶ 2.) This is essentially a fact case. The trial court had before it the evidence adduced by the parties on the factual issue. At the time of the accident the father had contributed nothing to appellant’s support for about two years. Appellant was in fact being supported by others during that period. The father had remarried. He was having difficulty meeting his bills. A pattern of nonsupport had been firmly established, a not uncommon practice when divorced persons remarry and establish new families. The trial court had nothing before it to indicate when, if ever, that pattern would be changed. There remained a legal obligation of support but the evidence disclosed nothing to indicate any reasonable expectation it would ever be met. The trial court may well have considered this case as one of those envisioned by Chief Justice Harvey in Wade when he stated: “Circumstances may exist, certainly can be imagined, in which the trier of facts would be justified in finding—perhaps forced to find—that this natural and legal dependency had no practical value, in fact was worth nothing; hence, to be of no aid in supporting a claim of dependency.” (p. 393.)- Appellant had the burden of proof to show he was wholly dependent upon his father at the time of the accident. The trial court found only partial dependency. This, in effect, was a negative finding of fact against1 the one having the burden of proof upon the issue. We find nothing in the record which would justify us in setting the factual finding aside. The judgment is affirmed. APPROVED BY THE COURT

The opinion of the court was delivered by Price, C. J.: This is an action to recover for personal injuries and other damage sustained by plaintiff when the car driven by her struck a utility pole owned and installed by defendant company in the driveway entrance to a gasoline service station. The jury made special findings and returned a general verdict for plaintiff for $1,700.00. Defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict (K. S. A. 60-250) was sustained. Plaintiff has appealed from that ruling and aslrs this court to reinstate the verdict. For purposes of this appeal the facts may be highly summarized. The service station in question was at the southwest comer of a street intersection in Wichita. The east-west street (Kellogg) was being widened, which made it necessary for defendant to move its utility poles at the intersection. The pole in question was moved to a location substantially in the north half of the east driveway leading into the service station from the north-south street. It was a black creosoted pole. There appears to be no question that it was installed in accordance with state highway and city specifications. No warning signs were attached to it, and because of its color was difficult to see at night. On the evening in question—after dark—plaintiff approached from the south—driving slowly. She turned to her left into the driveway to the service station. She did not see the pole “until she hit it”. The immediate area was well lighted from lights of the service station, a grill and liquor store. Plaintiff was familiar with the driveway—having been to the service station on a number of occasions. As a result of striking the pole plaintiff’s car was damaged and she sustained personal injuries. The pretrial order contained a stipulation that the pole was located within the right-of-way lines of the north-south street, south of Kellogg, but outside the curb line of the north-south street for traffic using that street. Among the issues of fact to be determined were whether defendant was guilty of negligence and whether plaintiff was guilty of contributory negligence. The pretrial order further recited that plaintiff’s contentions were that defendant was negligent in placing a dark utility pole in the driveway of the service station where the public was invited to travel, and in not having proper lighting on the pole or other appropriate warning devices. The order further recited that defendant’s contentions of contributory negligence were, among other things, that plaintiff failed to keep a reasonably careful lookout; that she failed to look and see that which was plainly visible, and that she knew, or should have known, of the location of the pole because of recent familiarity with the driveway. It was further recited in the order that the questions of law for determination were whether, under the facts, plaintiff had a claim for which relief could be granted; whether plaintiff was guilty of contributory negligence as a matter of law, and whether there was any duty on the part of defendant to warn plaintiff that the driveway to the service station was being altered or not available for use by business invitees of the station. The parties proceeded to trial. After stating the contentions of the parties, the court gave the usual and standard instructions on negligence and ordinary and proper care. Instructions Nos. 3 and 7 were devoted to contributory negligence and the rights of the parties in the event such negligence was found. Instruction No. 5 was: “The law requires public utilities to erect and to maintain service facilities with reasonable care to avoid hurt or injury to others. If the circumstances of this case are such that the defendant, by using ordinary care, would recognize at once that their act of relocating the pole would place another in danger, the duty to take reasonable precaution to avoid danger then arises.” Together with its general verdict in favor of plaintiff the jury made two special findings. The first was that plaintiff was not guilty of negligence. The second was that defendant was guilty of negligence and that it consisted of: “We feel that the relocation of the pole placed it in an obvious place of danger and further feel that it was the defendant’s responsibility to attach some warning device or other means of making the presence of the pole known.” At the conclusion of plaintiff’s evidence and again at the conclusion of all the evidence defendant had moved for a directed verdict and for judgment under K. S. A. 60-250. Following the verdict, defendant renewed its motion, as it had a right to do under the statute. In sustaining defendant’s motion for judgment the court commented that it was inclined to think that instruction No. 5 (above quoted) was erroneous and that the physical facts showed plaintiff to be guilty of contributory negligence as a matter of law and therefore the verdict could not stand. It further commented to the effect that defendant, having installed the pole in proper manner pursuant to specifications of the public authorities, was relieved of obligation to warn those who might be entering the driveway of the private business. During the trial defendant had objected to instruction No. 5 on the ground it was “a revision of P. I. K. 12.70, which is a business invitee instruction and which places this Defendant in the same position as the proprietor, which I respectfully submit is not the law of the State”. We disagree with defendant’s contention as to the import of instruction No. 5 and that is a revision of PIK 12.70—which concerns the duty of an invitee to use reasonable care for his own safety when on the premises of another. This action is not against the owner or proprietor of the service station—and therefore rules pertaining to the degree of care owed to a business invitee or licensee do not come into play. There was no relationship of invitee or licensee as between plaintiff and this defendant. The order setting aside the verdict and entering judgment for defendant appears to be based on the fact that instruction No. 5 was erroneous and that under the evidence plaintiff was guilty of contributory negligence as a matter of law. We believe the criticism of instruction No. 5 is unjustified. Actually, it merely is a general statement of the universal rule to the effect that everyone—including a public utility company—is under a duty to exercise reasonable care—in the circumstances—to avoid injury to others. As applied to the facts of this case we fail to see how defendant was prejudiced by the instruction. And neither do we agree that the evidence was such as to convict plaintiff of contributory negligence as a matter of law. In fact, it was quite conflicting, and was such that the minds of reasonable men could easily differ on the question. The applicable rule has been stated many times (Borggren v. Liebling, 198 Kan. 161, 422 P. 2d 884, and cases cited). Subsection (b) of K. S. A. 60-250 is the same as the corresponding subsection of the federal rule, and it will be seen in Swearngin v. Sears Roebuck & Company, 376 F. 2d 637 (10th Circuit, Kansas, 1967) that the federal court has applied the same test as that in the Borggren case, above. We believe the court erred in concluding that plaintiff was guilty of contributory negligence as a matter of law. The question was properly submitted to the jury in the first instance. In conclusion—instruction No. 5 was not prejudicial to defendant. The question of contributory negligence was properly submitted to the jury. The jury found that plaintiff was not negligent, and that defendant was negligent. There is evidence to support both findings. It is apparent both parties were afforded a fair trial. Even in event of reversal defendant does not request a new trial. Plaintiff does not request a new trial—merely reinstatement of the verdict. No error in the trial itself being made to appear—we know of no reason—and none has been cited—why—upon reversal—the verdict of the jury should not be reinstated. The judgment is reversed with directions to reinstate the verdict.

Per Curiam: On November 17, 1969, Kenneth Franklin Metzger voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, which is now on file with the clerk of this Court. It is therefore ordered by the Court that the surrendered certificate be accepted and the clerk of this Court is ordered and directed to mark the certificate void and to strike Kenneth Franklin Metzger’s name from the roll of attorneys.

The opinion o£ the court was delivered by Kaul, J.: This is an appeal in a criminal action by the defendant-appellant who was convicted by a jury of first degree murder of his wife. He was sentenced to life imprisonment in the Kansas State Penitentiary. The principal issue concerns the propriety of instructions dealing with the felony murder rule as applied to the facts of the case. The sole defense at the trial was insanity at the time of the alleged offense. The facts are not in dispute. Defendant Ralph J. Clark, a deaf mute, and Rosa E. Clark had been married for about thirteen years and lived in Olathe. Defendant attended the Kansas School for the Deaf at Olathe and had been employed for several years as a farm laborer on the farm operated by the school. The evidence disclosed that Ralph and Rosa experienced marital difficulties, which extended over a period of time, and culminated in Rosa’s filing a divorce action in Olathe on July 10, 1956. At that time defendant was employed by the Reno Construction Company at Melvern. On July 15, 1956, between 9 and 10 a. m., while at work at Melvern, defendant was served with a summons in the divorce action by the sheriff of Osage County. After he was served with the summons, defendant left his job to go to Olathe. He was described by his supervisor as being emotionally disturbed. Around 1:30 p. m. defendant arrived in Olathe at the home of Helen Mayes, who was a sister of defendant’s wife Rosa. Helen was an eyewitness to the events'that transpired. Helen testified that Rosa had come to her home in Olathe and as they were getting into a truck to leave Ralph drove up in his car; that Ralph got out of his car and asked Rosa to get out of the truck and they approached each other. Helen testified: “They got out of the car and they walked toward each other and Rosa got out of her car and they met. Ralph didn’t say anything at first. Rosa said, ‘Why aren’t you working today? It is a nice day.’ And then Rosa said, ‘Did you mess up my car?’ Ralph said, ‘No.’ And he said, ‘Why are you divorcing me?’ And then Rosa said, ‘Yes; we agreed on that before.’ And then he grabbed her hand and stabbed her.” Helen further testified that Ralph appeared cross and mad; that she had seen him mad before; and that Ralph and Rosa talked about five minutes when Ralph stabbed Rosa twice. He first stabbed her in the stomach, she attempted to run away, Ralph turned, caught Rosa, and stabbed her a second time in the chest; Ralph' then stabbed himself several times in the abdomen. Helen did not know where Ralph got the knife but that he did have it on his person somewhere. She further testified that Ralph made threats on previous occasions and that Ralph and Rosa had quarreled before about Rosa running around with other men and wasting Ralph’s money. Edward J. Bowers, a detective for the Johnson County sheriff’s office, was called and when he arrived found Rosa lying on the ground moaning and bleeding from her right side. He also found Ralph with several wounds. Both Ralph and Rosa were taken to Olathe Community Hospital where Rosa died that afternoon at 2 p. m. Ralph was removed to the Kansas University Medical Center and subsequently recovered. On July 17, 1956, a complaint was filed in magistrate court and preliminary hearing set for August 13, 1956. After hearing evidence, the magistrate court bound Clark over to the district court for trial on murder in the first degree. An information charging Clark with murder in the first degree was filed on August 23, 1956. Thereafter, a petition was filed for the appointment of a commission to determine whether Clark was able to comprehend his position and make his defense. The commission was appointed and reported that in its opinion Clark was insane. On October 8, 1956, the trial court approved the commission’s report and committed Clark to the Larned State Hospital for safe keeping and treatment as provided by law. Clark remained in the Larned Hospital until February 1, 1958, when he was returned to Johnson County for trial. On February 11, 1958, Clark appeared before the district court; Herbert L. Lodge, of the Johnson County Bar, was appointed to represent Clark and Rice Lardner and W. C. Jones, who had represented him in all previous proceedings, were permitted to withdraw as Clark’s counsel. Clark’s new counsel filed a motion requesting the appointment of a sanity commission to determine Clark’s ability to stand trial. A commission was appointed and, after examining Clark, reported on March 10, 1958, that he was competent to stand trial. The report of the commission was approved by the trial court. Thereafter, on request, the court authorized Clark to employ, at the expense óf the county, two physicians to examine Clark and testify concerning the issue of his sanity at the time of the commission of the alleged offense. On March 10, 1958, Clark was arraigned and, standing mute, a plea of not guilty was entered by the court. The trial commenced on March 24, 1958, and was concluded three days later by a jury’s verdict of guilty of murder in the first degree, fixing Clark’s punishment at life imprisonment. A motion for a new trial was filed, heard and overruled by the court on April 16, 1958. Clark was then confined in the State Penitentiary at Lansing. On October 8, 1958, through his court-appointed counsel, Clark filed a notice of appeal, but the appeal was not perfected. Clark now claims that on January 27, 1959, prison officials of the state penitentiary confiscated his pro se brief and abstract, which he had prepared for docketing in the Kansas Supreme Court. His claim is neither corroborated nor supported by any evidence in the record. On March 10, 1959, Clark was notified by the clerk of this court that his appeal had been dismissed since no brief or abstract had been filed. In 1964 Clark filed a motion to vacate his sentence pursuant to K. S. A. 60-1507. The motion was denied by the trial court and, on October 22, 1964, a notice of appeal from that ruling was filed in this court. On October 28, 1965, this court on its own motion entered an order directing that Clark’s motion be treated as a request for the appointment of counsel pursuant to our Rule No. 56 (Prefatory Rule No. 1 [f], 201 Kan. xv) for the purpose of perfecting and presenting an appeal from the judgment and sentence to this court. Subsequently, this court entered an order reinstating Clark’s original direct appeal and it is now before us. In his motion for a new trial defendant set out ten grounds for reversal and reasserts them as his points on appeal. However, in view of our disposition of the case, we think it only necessary to consider defendant’s objections to certain instructions. The trial court submitted twenty-three instructions which covered and presented to the jury rules of law pertaining to murder in the first and second degrees and insanity as a defense. The defendant objected to five of the instructions during the trial and reasserted his objections on motion for a new trial. We believe there is merit in defendant’s objections to those instructions, which applied the felony murder doctrine to this case. Our first degree murder statute G. S. 1949, 21-401 (now K. S. A. 21-401) prescribes two concepts under which a homicide is indictable as murder in the first degree. First, a deliberate premeditated killing and, second, the Kansas version of the common-law rule that if a person kills another in doing or attempting to do an unlawful act, amounting to a felony, the killing is murder. 21-401, supra, reads as follows: “Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated lolling, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.” In the instant case, three of the instructions (Nos. 6, 8 and 9), objected to by defendant, deal with the application of the perpetration of a felony concept of our statute. Instruction No. 6 consists of two paragraphs, the first of which recites the provisions of 21-401 in full. The second paragraph reads as follows: “Murder is the unlawful killing of a human being, with malice aforethought, either express or implied, by a person of sound memory and discretion, and under the law in this state, when it is committed by means of poison, or by lj'ing in wait; or when it is committed willfull, deliberately and premeditately, or when it is committed in the perpetration of, or an attempt to perpetrate any felonious assault, it is deemed to be, and is, murder in the first degree.” In Instruction No. 8 the thrust and effect of the felony murder rule is correctly set out in the first paragraph and assault with felonious intent, as defined in G. S. 1949, 21-431 (now K. S. A. 21-431), is fingered as the felony involved in this case. In Instruction No. 9 the first paragraph deals with premeditated murder, as applied to the facts of this case. The second paragraph applies in the alternative the felony murder rule and reads as follows: “Or, if you find from all the evidence beyond a reasonable doubt that at the time and place alleged in the information that the defendant, Ralph J. Clark, did unlawfully, feloniously, on purpose and of malice aforethought, stab Rose Eva Clark with a deadly weapon, with the intent to kill or maim her, the said Rose Eva Clark; and you further find beyond a reasonable doubt that the said Ralph J. Clark while so engaged in the perpetration of such felonious assault upon the said Rose Eva Clark, did then and there inflict mortal wounds upon her from which she did then and there die, then you must find the defendant, Ralph J. Clark, guilty of murder in the first degree.” Under the instructions recited, the jury, if unable to find premeditation, is presented with the alternative of convicting under felony murder; the felony being felonious assault by stabbing under 21-431. The felony murder provisions of our statute, in the context presented here, was first considered by this court in State v. Fisher, 120 Kan. 226, 243 Pac. 291. The Fisher case was a first degree murder prosecution in which tire felony murder rule was applied in instructions quite similar to those in the instant case. The deadly weapon in Fisher was a riñe, instead of a knife, and the assault resulting in the homicide was a shooting, instead of a stabbing. However, the other felony relied on in Fisher was—as here—assault with felonious intent. This court set aside the co'nviction in Fisher and, with respect to the application of the felony murder rule, held: “. . . the other elements constituting the felony must be so distinct from that of the homicide as not to be an ingredient of the homicide, convictable under an information charging the homicide as murder.” (Syl. p. 226.) The reasoning of the court is explained by Mr. Justice Harvey speaking for the court: “. . . It is the contention of the state that if murder is committed in the perpetration or the attempt to perpetrate any other felony, it is murder in the first degree; hence, that if the boy, John Michael Foley, met his death at the hands of defendant, while defendant was committing an assault with a deadly weapon, under such circumstances that it amounted to a felony under any statute pertaining thereto, the offense is murder in the first degree. This contention cannot be sustained. The effect of it would be to make any homicide, not excusable or justifiable, which by our statute is defined to be manslaughter in any of the degrees, or murder in the second degree, to constitute murder in the first degree. In other words, there could, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree. . . . “We have examined all of tire authorities cited in the able brief of counsel for the state as tending to support this instruction. It will not be necessary to make a detailed analysis of them. The few which tend to support the instruction are upon statutes differing from our own and are not applicable. Those holding that a murder committed in the perpetration or attempt to perpetrate a distinct offense, as robbery, arson, or the like, are in keeping with our own decisions and are not opposed to the conclusion here reached. Here the act of the defendant in doing the shooting is either murder in the first degree or some other offense. That same act cannot be made the basis, first, of some other felony, as manslaughter, and then that felony used as an element of murder in the first degree. . . .” (pp. 230, 231.) Following its first pronouncement, the holding in Fisher has been discussed and noted with approval in State v. Booker, 197 Kan. 13, 415 P. 2d 411, and 200 Kan. 166, 434 P. 2d 801, cert. den. 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031; State v. Moffitt, 199 Kan. 514, 431 P. 2d 879; State v. Severns, 158 Kan. 453, 148 P. 2d 488, and State v. Merriweather, 136 Kan. 337, 15 P. 2d 425. In State v. Moffitt, supra, where the other felony involved was possession of a pistol after conviction of a felony under K. S. A. 21-2611, Justice Schroeder speaking for the court points out the distinction in the situation there from that existing in Fisher: “. . . The assault was the same act which resulted in the homicide. This was held improper on the ground the same act cannot be made the basis, first, of some other felony, and then that felony used as an element of murder-in the first degree. The situation in Fisher is to be distinguished from the facts presently before the court.” (p. 530.) The purpose of the felony murder rule is to relieve the state of the burden of proving premeditation and malice when the victim’s-■death is caused by the killer while he is committing another felony.. The rationale being that the killer s malignant purpose is established by proof of the collateral felony. But where the other felony, such as an assault, directly results in or is an integral element of the homicide, the assault becomes merged with the killing and cannot be relied upon as an ingredient of felony murder. Under a statute, such as ours, if the rule were to be applied otherwise then, as noted by Justice Harvey in Fisher, “there could be no such thing as any lower degree of homicide than murder in the first degree.” As was noted in the Fisher opinion, the application of the felony murder rule is not limited in some jurisdictions by the doctrine of merger of the felony and the killing. Our research indicates the division stems from a variance in statutory provisions for felony murder. Cases from many jurisdictions are catalogued and statutory variances are noted in a survey of the subject (The doctrine of merger in felony-murder and misdemeanor-manslaughter) in Vol. xxxv St. John’s Law Review, at page 109. See, also, Vol. 1 Wharton’s Criminal Law and Procedure, Murder, § 251 [Felony-murder rule], p. 539, and 40 Am. Jur. 2d, Homicide, § 72, pp. 364, 366. The Supreme Court of California was recently confronted with the identical problem in People v. Ireland, 75 Cal. Rptr. 188, 450 P. 2d 580 (1969). The court said: “. . . To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. . . (p. 198.) We turn next to the problem in the case at bar whether the error requires reversal. As we have noted, the facts are not in dispute nor the killing denied. The state’s evidence was ample to support the conviction. The reporter’s transcript of the trial, which we have at hand, reveals the real issue in the trial to have been the defense of insanity which was thoroughly and forcefully presented by defendant’s trial counsel. The trial transcript reflects that while defendant’s counsel objected to the instructions on felony murder, he failed to specify the question of law involved; nor did he call the trial court’s attention to- State v. Fisher, supra, or any of the other authorities we have mentioned. The evidence is such that the jury could not have acquitted the defendant unless it found him to be insane at the time of the offense. However, the erroneous instructions might have influenced the jury’s consideration of murder in the second degree. In weighing the gravity of the error, we feel obliged to mention a reference by the county attorney to the felony murder instructions during his closing argument, even though no objection was lodged at the time. The county attorney quoted a portion of instruction No. 8 and then stated to the jury: “In other words, what that means, I might have no particular design to kill you. Any one of you. I may have a knife and I am going to just assault you with it and cut you. Say maybe I just took my knife out of my pocket and I was mad, so I said, ‘I am just going to cut you some place that is fatal, that they [then] becomes Murder in the First Degree, because I killed someone when I was attempting to perpetrate the crime of under those facts—of criminal assault, or assault with a deadly weapon,’ and ‘deadly weapon’ here is any weapon, the nature and character of which is calculated to cause death or great bodily harm, if used for that purpose.” The impact on the jury of the felony murder instructions, emphasized by the county attorney’s remarks, is, of course, not ascertainable. Under the circumstances related, however, we are unable to say the verdict was not affected. The judgment is reversed with directions to grant a new trial. O’Connor, J., not participating.

The opinion of the court was delivered by Hatcher, C.: This controversy stems from bad debt deductions claimed by the taxpayers, L. A. Laybourn and his wife, but disallowed by the Kansas Director of Revenue. Briefly summarized, the facts reveal that Laybourn incorporated a company known as the Hustler Corporation, Inc., on December 20, 1960. A stock certificate number 1 representing 100 shares of its $100.00 par value common stock was issued to him for the sum of $10,000.00. No further stock was issued from that time on, and Laybourn was at all times the sole owner, president and chief executive officer of the Hustler Corporation, Inc., which elected, for federal tax purposes, to file as a small business corporation. Laybourn made advances to Hustler Corporation, Inc., during the years 1961, 1962, 1963 and 1964, in the respective amounts of $154,175.45, $119,500.00, $111,200.00 and $103,000.00 which were used to continue the business operations of the Corporation. The company filed Kansas corporation income tax returns for 1961, 1962, 1963 and 1964, disclosing net operating losses from all its operations in the respective amounts of $123,453.86, $106,641.28, $138,934.53 and $126,856.81. The taxpayers, L. A. Laybourn and wife, claim nearly identical amounts as bad debt deductions on their Kansas individual income tax returns for the years 1961, 1962 and 1963, and as a worthless security deduction on their 1964 individual income tax return. The Income Tax Division of the Department of Revenue refused to allow these deductions, and made an additional assessment of income tax in the aggregate sum of $34,498.92 for the years in question. The taxpayers’ objections were overruled by the Director of Revenue for the State of Kansas and the Board of Tax Appeals. The taxpayers then appealed to the District Court of Saline County, Kansas. Prior to tire trial the taxpayers withdrew their objection to the assessment of additional income tax for the year 1964. At the pretrial conference the parties stipulated: “The controverted issue of fact to be determined by the court is as follows: Whether the above-described cash advances made by L. A. Laybourn to Hustler Corporation, Inc., during the years involved were valid and enforceable debts owed to L. A. Laybourn, or whether these advances were made during said years as a contribution to the capital of Hustler Corporation, Inc.” The case was tried to the district court on a stipulation of facts, oral testimony of witnesses and numerous exhibits. The trial court stated in a letter of decision: “It is conceded in the briefs of both parties that the substance rather than the form of tire transactions is controlling. The Court having considered the evidence produced by the petitioner, being particularly impressed by the testimony of Paul Mott, a practicing CPA, finds that the advances were valid and enforceable debts owed to L. A. Laybourn and were not contributions to capital; that the bad debt deductions claimed by petitioner were erroneously disallowed.” The appellant, the Director of Revenue for the State of Kansas, states the issue on appeal to this court as follows: “Do advances of money by an individual who is the sole owner, president and manager of a corporation to his corporation for the purpose of his corporation buying oil leases, drilling for oil and other capital expenditure qualify as a ‘bona fide uncollectable bad debt’ within the meaning of the Kansas Income Tax Act when, in fact, the money was advanced without any security, at no specified rate of interest, without a date for repayment of the money being set and before any attempt by the individual is made to secure repayment from the corporation, said corporation being an active, undissolved and viable corporation with prospective or present ability to repay the money either in money or oil leases?” Evidence of all the above enumerated factors are proper elements to be considered in determining the question. However, none of them are conclusive. In determining whether the advances were intended as capital or a loan creating a debt the trial court had to glean the intent of L. A. Laybourn from all the relevant facts and circumstances before it. This court cannot so review and weigh the evidence. We must apply here the substantial evidence rule which is so well established that no citations are necessary to support it. Findings of the trial court will not be disturbed on appeal when there is any substantial evidence to support them. The question before the trial court was purely factual. It stated that it was impressed with the oral testimony of Paul Mott, a practicing certified public accountant. Mr. Mott testified the accounting records of both parties disclosed the advances as liabilities. He further testified: “. . . [W]e traced the actual cash transactions into the bank account on the records of the corporation, we also then verified the balances at the end of the year by reference to the counter-set of books with Mr. Laybourn’s books where it showed up as a receivable, and we examined the checks, cancelled checks, and we also obtained confirmation from the creditor, Mr. Laybourn, as to the amount of the liability and its nature. “Q. Was this confirmation you speak of one which is required in writing? “A. Yes, it was a letter which we normally use in this type of a situation. A letter to Mr. Laybourn asking him to confirm the amount of the liability. “Q. After conducting your audit, then were you as an independent certified public accountant satisfied that this was a bonafide liability from Hustler Corporation to L. A. Laybourn during the three years involved? “A. Yes, we were satisfied as to that. Both parties represented it to be so and we so showed it on the audit report.” The findings of the trial court were also supported by the testimony of L. A. Laybourn. The findings being supported by substantial competent evidence we are bound thereby. We have examined the numerous authorities cited by appellant. At most they offer but tenative clues as to what is a debt and what is an advance to capital. In the final analysis each case must be decided upon its own particular facts which are probably dissimilar from all others. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Hatcher, C.: This appeal covers two separate actions resulting from a collision between two automobiles. One action was by the driver of the automobile for damages as the result of personal injuries sustained. In the other action the owner of the automobile driven by the injured party seeks property damages for injury to the automobile. The two cases were consolidated. The plaintiffs sought recovery under the doctrine of res ipsa loquitur. The facts are not in serious dispute. The plaintiff, Norman B. Kline, was driving his father’s Chevrolet automobile north on Merchant Street, Emporia, Kansas, on October 5, 1965, at about 9:00 p. m. It was dark but the weather was clear and the streets were dry. He was approaching a parking lot maintained for the students of the Kansas State Teachers College, Emporia, on the east side of Merchant Street which he intended to enter. There were some people crossing the entrance to the parking lot, so he came to a stop about ten feet south of the entrance, still headed directly north. When the plaintiff stopped he signaled his intention. His brake lights were working. As he stopped, his automobile was struck in the rear by defendant’s car. At the trial, after disclosing the above facts, the plaintiffs introduced evidence as to the extent of the injuries and damages and rested. The defendant, Kent A. Emmele, was the only witness testifying as to the direct nature and cause of the accident. He disclosed the following facts: He was driving a Ford Falcon automobile two or three car lengths, maybe less, behind the Kline car. Both cars were traveling approximately 20 miles per hour. He did not see plaintiff give any signal to indicate he was stopping. His first indication that the plaintiff was slowing down was given by the distance between the two automobiles. As he hit the brake pedal it went all the way to the floor. He tried to swerve out of the way by swinging into the other lane but as he did so there was an impact with the left rear of the Kline vehicle. There was just one impact with the vehicle and after the impact Emmele thought he had hit the wrong pedal and switched his foot over and hit the accelerator. After impact his automobile was out of control and because of oncoming traffic and parked cars he hit a tree in order to stop his vehicle. Prior to this time he had never had any trouble with the brakes on the vehicle. The investigating officer observed brake fluid on the street south of the point of impact behind the vehicles and also on the differential housing of the Emmele vehicle. He checked the brakes on the Emmele vehicle and found there were no brakes. Emmele also observed the brake fluid on the street and the investigating officer pointed out to him a bruised looking spot on the brake line and he saw where the split or break in the brake line was located. He claimed not to have had time to apply his emergency brake. On the above facts the case was submitted to the jury. The juiy answered special questions as follows: “1. Do you find that the defendant was guilty of any act or acts of negligence which was the direct cause of the collision? “Answer.: Yes. “2. If your answer to Question No. 1 is “Yes’, state the act or acts of negligence of which defendant was guilty. “Answer: Following too closely and not having car under proper control. Failure of driver to avoid collision by using emergency procedure.” The jury returned a verdict in favor of the plaintiff, Norman B. Kline, for personal injuries in the amount of $4,000, and a verdict in favor of the plaintiff, James C. Kline, for damages to the automobile in the amount of $400. The defendant has appealed. The appellant contends that the trial court erred in failing to give requested instructions with regard to the law on failure of brakes, creating an unavoidable accident and sudden emergency. The appellant makes no objection to the instructions on negligence, burden of proof and proximate cause. We will first consider appellants contention that the trial court erred in not giving his requested instruction with regard to the law pertaining to brake failure on automobiles creating an unavoidable accident. The sudden failure of brakes without knowledge of any defect or fault on the part of the driver is a form of unavoidable accident. A defense based up'on a claim of an unavoidable accident is merely a denial of negligence. (Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459; Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213.) The trend has been to disapprove unavoidable accident instructions where negligence, burden of proof and proximate cause have been properly defined in the instructions. We SO' stated in Herrington v. Pechin, 198 Kan. 431, 434, 424 P. 2d 624. (See, also, Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055; Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 376 P. 2d 809; Gardner v. Welk, 193 Kan. 445, 393 P. 2d 1019.) In Curby v. Ulysses Irrigation Pipe Co., Inc., 204 Kan. 456, 464 P. 2d 245, (No. 45,512), we stated: “Running through our decisions is the rule that the foundation for an unavoidable accident or equivalent accident instruction exists only when the court can say there is no evidence of a negligent act or omission of one or both of the parties to the action. In other words, if there is any evidence of negli gence of either party, such an instruction has no application to the case. . . .” (p.-. See, also, cases cited therein.) We find no error in the failure to give the requested instruction. The appellant next complains of the failure of the trial court to instruct the jury on sudden emergency or peril. The appellant had requested that the pattern instruction be given. (PIK 8.81.) Again we must state that a claim of sudden emergency is but a denial of negligence. It simply refutes negligence—it does not seek to avoid liability for a negligent act. In Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770, we stated: “The doctrine of sudden emergency cannot be regarded as something apart from and unrelated to the fundamental rule that everyone is under a duty to exercise ordinary care under the circumstances to avoid injury to others. A claim of emergency is but a denial of negligence. Application of the doctrine is really application of the test for negligence couched in language tailored to a peculiar situation. The fact that a person is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is merely a factor in determining the reasonable character of his choice of action and whether his conduct constituted negligence. (Restatement of Torts § 296.) . . .” (p. 303.) In 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 1030, p. 588, we find the following statement: “The determination as to either the giving of an .instruction on the rule of sudden emergency in a motor vehicle accident case or the validity of a given instruction on such rule may depend upon or be affected by various circumstances and considerations relating particularly to the existence and nature of the claimed emergency, the creation or cause thereof, and acts or conduct in meeting it. The application of such circumstances or considerations may in some cases be limited or peculiar to particular emergencies or accidents, or to those occurring in a particular manner or situation.” Certainly if all of the above mentioned factors are to be given consideration in determining whether an instruction is to be given on sudden emergency, the question of whether or not the instruction should be given must be left to the sound discretion of thei trial court when the circumstances and considerations are established by substantial evidence. We are impressed with the suggestion that where there is definite evidence of negligence on the part of the defendant, the weight of such evidence might be entirely destroyed by an instruction on sudden emergency. Such an instruction might well cause the jury to lose sight of the negligence which caused the emergency. The able trial Judge no doubt recognized all of the above con siderations when he refused to give the instruction on sudden emergency. We quote the appellant’s next complaint: “The trial court’s Instruction No. 5 improperly and prejudicially stated the law with reference to vehicle control and the regulation of speed to ability to stop or turn aside within the range of vision in the situation shown by the evidence to have existed, i. e., a sudden emergency.” The appellant wants his claim of sudden emergency to be the only issue presented to the jury. The trial court and the jury were faced with the additional issue of whether the appellant was guilty of negligence which caused the emergency—driving too close to the rear of appellee’s automobile. The appellant does not question the accuracy of the instruction as a rule of law pertaining to control of vehicles during the night time. There is no merit in appellant’s contention. Appellant complains of the trial court’s instruction to the jury to the effect that the plaintiff should be allowed “reasonable expense of necessary medical care, hospitalization, and treatment reasonably certain to be needed in the future.” The basis of the complaint is that there was no evidence to support future medical care, hospitalization and treatment. Appellee’s doctor testified that appellee had suffered a fracture of the spinous process resulting in a bone fragment in the soft tissue adjacent to the spinous process of the second cervical vertebrae. It was his opinion that the injury had reached a maximum degree of recovery. Any additional recovery would, of course, require future medical and hospital care. The doctor’s testimony was not refuted by evidence for the appellant. The appellee recovered total damages in the amount of $4,000. We are not informed what amount, if any, was allowed for future medical and hospital care. However, we are in no position to say that there was no evidence justifying an instruction on the question of recovery for future medical and hospital care. There was substantial competent evidence supporting the jury’s answers to the special questions. A careful examination of the record discloses no trial errors which would justify the granting of a new trial. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Harman, C.: This is a proceeding for post conviction relief under K. S. A. 60-1507. In March, 1949, appellant Fred Miller was found guilty by a jury of the offense of murder in the first degree. His motion for new trial was overruled and on March 26, 1949, he was sentenced to life imprisonment. Throughout trial appellant was represented by retained counsel. No direct appeal was taken from this conviction. In 1966 appellant filed his motion which is the subject of this appeal. The matter was presented to the trial court October 13, 1967, at which hearing appellant appeared and testified. The motion was denied and this appeal has ensued. Appellant’s 1507 motion is not included in the record before us but from the argument we gather that four contentions were made. First, appellant seems to say that a confession received in evidence against him was not voluntarily made by him. If this be his contention, it cannot be sustained in the light of his own testimony. Appellant did testify at length at his 1507 hearing respecting the taking of his confession by police officers. Nowhere in his testimony, either directly or inferentially, did he state his confession was other than voluntarily given or in accord with then existing rules governing the making and admission into evidence of confessions. Appellant contends that during his trial a brother of the victim (who was appellant’s aunt by marriage) was seen mingling with and talking to certain jurors. It appears this matter was brought to the attention of the trial court but was not deemed of sufficient importance to warrant disturbing the verdict. At most this was a trial error and could not, in any event, afford ground for relief by way of 1507 proceeding (Rule 121 (c) (3), 201 Kan. xxxiii). Appellant says he was unaware of his right to appeal his conviction and sentence. Assuming the truth of this allegation, the failure of the trial court in 1949 to advise appellant of his right to an appeal did not constitute a denial of a right guaranteed him by the federal or state constitutions (Allen v. State, 199 Kan. 147, 427 P. 2d 598). Appellant’s principal contention upon appeal is that he requested but was not furnished a transcript of the proceedings resulting in his conviction. It appears the notes of the court reporter who attended the trial could not be located so that a transcript could not be supplied. The court reporter, the trial judge and the attorney who conducted appellant’s defense at his trial in 1949 are all deceased. Appellant contends this failure to furnish him a trial transcript amounts to an unconstitutional discrimination against him. K. S. A. 20-903 does provide for the stenographic recording by the official court reporter of proceedings in district court and for the filing of such stenographic notes with the clerk of the court. Under K. S. A. 1968 Supp. 62-1304 (b) transcripts of such proceedings are to be made available without cost to indigent defendants. A similar situation to that in the case at bar was presented in Norvell v. Illinois, 373 U. S. 420, 10 L. ed. 2d 456, 83 S. Ct. 1366. There a state prisoner, who was represented by a lawyer, was convicted in 1941 of the offense of murder. No appeal was taken. In 1956 in connection with his motion for new trial defendant requested a stenographic transcript of his trial. The reporter who had reported the trial was dead and no one was able to read his shorthand notes. An effort to reconstruct the transcript by means of witnesses who had attended the trial was unsuccessful. The motion for new trial was denied. It was held that a state, in a situation where no transcript of the trial is available dire to the death of the court reporter, may without violation of the due process or equal protection clauses of the federal constitution deny relief to one who, at the time of trial had a lawyer and who presumably had his continuing services for purposes of appeal and yet failed to appeal. It was further said: “When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made. . . . “The rough accommodations’ made by government do not violate the Equal Protection Clause of the Fourteenth Amendment unless the lines drawn are "hostile or invidious’. . . . We can make no such condemnation here. For, where transcripts are no longer available, Illinois may rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal.” (p.424.) And in United States v. Pate, 318 F. 2d 559, following the rationale announced in Norvell, it was held the inability of a court reporter to locate his notes of a state homicide trial and the inability of the state to furnish a transcript of trial, without any fault on its part, did not show a constitutional infringement of rights and did not warrant habeas corpus relief in federal court. In the case at bar there is no indication of fault upon the part of the state. No hint of hostile or invidious discrimination appears toward appellant. He has not been denied a transcript because of indigency or for any other reason than the fortuitious circumstances related. We conclude the trial court properly denied his motion for relief. Judgment affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Harman, C.: The sole question in this will probate proceeding is whether a litigant acquiesced in a judgment entered by a probate court so as to preclude his appeal to district court. The facts are not in dispute for our purposes here. In October, 1947, Harold K. Buehler married Laura J. Culver. Each owned property at the time of their marriage and Laura had previously advanced sums of money to Harold. Laura had a son by a former marriage, Leroy M. Culver, appellant herein. On June 24, 1960, Harold and Laura executed a document pm-porting to be their joint last will and testament. The instrument revoked a prenuptial contract and contained recitals that it was contractual in nature. The will provided that upon the death of either of them the survivor should take all their property and upon the death of the survivor one-half of all their property should go to Laura’s son, Leroy, and one-half to Harold’s sister, Helen Bergman. Leroy was named as executor after the death of both. The will directed that Thomas H. Finigan should act as attorney for the estate. Laura died January 2, 1967. No will upon her behalf was offered for probate. On February 6, 1967, Harold executed a last will and testament. In it he bequeathed his property equally, share and share alike, to eight named persons: Six sisters, a stepdaughter and his stepson, Leroy M. Culver. Leroy was named executor and the desire was again expressed that Thomas H. Finigan represent the executor of the estate. On May 17, 1968, Harold executed a codicil to his February 6, 1967, will, deleting one sister as a beneficiary and adding specific bequests to two other blood relatives. The codicil further directed that Leroy receive no fee for his services as executor in view of the fact the testator had set over to him a $2,000 life insurance policy. Harold died May 28, 1968. On June 5, 1968, Leroy filed in the probate court of Wyandotte county, Kansas, a petition for the probate of the February 6, 1967, will as modified by the May 17, 1968, codicil, attaching copies of both instruments. He alleged the original will was in decedent’s safety deposit box and further that nurses’ bills arising out of decedent’s last illness should be paid immediately and requested he be appointed special administrator for the purpose of taking care of matters needing immediate attention. On June 6, 1968, Leroy was appointed special administrator of Harold’s estate. On the same day Harold’s safety deposit box was opened and inventoried. Among the items found was Harold’s February 6, 1967, will. Thereafter, no action having been taken on the petition to probate this will, Leroy discovered the June 24, 1960, joint will of Harold and Laura which had evidently been in the custody of an officer of a Kansas City, Kansas, bank, and on July 9, 1968, he filed an amended petition seeking probate of the joint 1960 will, making allegations essential to its admission. On October 10 and October 15, 1968, a probate judge pro tern held hearings on both petitions and entered separate orders admitting Harold’s 1967 will and codicil to probate and denying the admission of the 1960 joint will to probate, saying as to the latter: “1. That portion of the Joint and Mutual Will which was Laura J. Buehler’s Last Will and Testament, was not knowingly withheld from Probate and more than one year having elapsed between date of her death and date the Will was offered for Probate, it may not be admitted to probate.” The probate court further ordered Leroy’s appointment as executor of Harold’s will and that upon filing of his oath letters testamentary issue to him. On October 11, 1968, Thomas H. Finigan wrote Leroy the following letter: “Dear Leroy: “The Judge held against us on one of the main points which was to the effect that more than a year having elapsed between the date of your mother’s death and the time the Will was offered for probate, it may not be admitted to probate. I think he is definitely wrong on this. “He has appointed you executor under the Will dated February 6, 1967 and we will have to qualify and make bond. “I think this order should be appealed and I feel confident that his judgment can be reversed in the District Court. We have thirty days from the 10th of October, 1968 in which to appeal, but we should do it at an early date.” On October 15, 1968, Leroy took his oath and qualified as executor of Harold’s estate. Thereafter Leroy timely perfected two separate appeals to the district court of Wyandotte county from the probate court orders denying admission of the 1960 joint will and admitting the 1967 will and codicil. The first of these appeals, handled by Leroy’s present counsel, was by Leroy as an individual and the other was by him as executor, this appeal being processed by Mr. Finigan. Apparently Mr. Finigan died before any action was taken on the appeals in district court and he was succeeded by Charles S. Schnider as attorney for the estate. On December 2, 1968, Sheldon M. Crossette, as attorney for Harold’s six sisters, filed in the district court motions to dismiss both of Leroy’s appeals on the ground he had consented to and acquiesed in the judgments appealed from when he qualified as executor of Harold’s estate. On January 16, 1969, the district court heard the motions to dismiss. Mr. Schnider, as attorney for Leroy in his capacity as executor, appeared but made no argument. As an individual Leroy was represented by present counsel. On January 20, 1969, the court sustained the motions to dismiss upon the ground Leroy had acquiesced in the judgments appealed from by his act of qualifying as executor of the estate. The trial court thereafter entertained a motion for rehearing but on March 20, 1969, adhered to its former ruling. Leroy, as an individual, has appealed from the rulings. The appellee now defending in this court the rulings appealed from is William E. Scott, administrator c. t. a. of Harold’s estate. The parties have explained that after Leroy’s appeals were dis missed by the district court the probate court removed him as executor o£ Harold’s estate and appointed Mr. Scott in his stead. The record does not reveal the circumstances of this action. As indicated, the only question is whether Leroy precluded himself from appealing to district court by qualifying as executor of Harold’s estate. The rule relied upon by the trial court has been broadly stated that anything savoring of acquiescence in a judgment cuts off the right of appellate review (Hawkins v. Wilson, 174 Kan. 602, 257 P. 2d 1110), but we find no-decision in our reports involving a factual situation similar to that in the case at bar. In Stephenson v. Stephenson, 156 Kan. 520, 134 P. 2d 397, an administratrix who was also an heir in an estate appealed to the district court from an order of final settlement by the probate court. Among the several items in the order were directions to the administratrix to.make certain payments to the heirs including herself and to deliver a certificate of stock to herself. The administratrix complied with these provisions in the order but not the others. Her appeal to the district court was dismissed. In affirming the dismissal this court held that since the result of the litigation as to all of the items would have been reflected in the amount which the probate court ordered distributed to her she had, by her acceptance of the payment of the amount allowed her individually, acquiesced in the entire judgment. This court pointed out she had accepted the benefits of the order from which she was appealing. In In re Estate of Markham, 195 Kan 436, 407 P. 2d 239, an order of final settlement was entered by the probate court. The order included an allowance of a certain amount for attorney fees and also directed the executrix to pay the court costs. The executrix, in her official capacity and as an individual, appealed to the district court from the order of final settlement and, particularly, from the allowance of the attorney fees. Thereafter she paid the court costs. The district court dismissed her appeal on the ground she had acquiesced in the probate court’s judgment by reason of her payment of court costs. Upon appeal this court recognized but declined to apply the acquiescence rule. It was pointed out that the appellant, in her capacity as executrix of the estate, was not a litigant in any sense of that term but was acting in a representative capacity pursuant to her appointment by the probate court, and in the execution of her duties was subject to the control and directions of that court. This court stated an executor occupies a status different from that of an ordinary litigant and held a right of appeal was not foreclosed. In Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750, it was held that where a party has a cause of action consisting of several items and judgment is awarded in his favor on one of them but against him as to the other items, he cannot accept the amount allowed in his favor and then appeal as to the remainder of the items. The rationale was stated as follows: “The rule is founded upon the well-established principle that litigants must be consistent. They cannot be permitted to change and shift their position in an inconsistent manner. The orderly administration of justice is best advanced by a firm insistence upon this principle. It is simply an application of the homily that one cannot eat his cake and have it.” (p. 515.) Here appellant was, in the same letter, advised to qualify as executor and to appeal the rulings upon the two wills, which, understandably, he did, his adviser being the attorney named as counsel in both wills. The fact one acts in accord with legal advice does not relieve him from the consequence of the act. However, it is difficult to find any personal benefit to appellant arising out of his act of qualifying as executor of the later will, or at least of such nature which ought to preclude his appeal. He accepted no benefit as was present in Hyland or Stephenson. He received nothing by way of distribution from the estate. He accepted the executorship in the face of a provision which stated he should receive no fee for those services. And whatever advantage or benefit he could be said to have derived from this act was not absolute as demonstrated by the fact he has now been removed. As was pointed out in Markham, appellant’s status as an executor was not that of an ordinary litigant because, as executor, he could act only in a representative capacity under the control of the appointing authority. He qualified as executor at the direction of the probate court. He would normally have been entitled to this appointment under the provisions of either of the two wills, so that the entitlement existed independently of any particular share in the estate. Finally, he perfected his appeal as an individual as well as in his official capacity. Under the circumstances we think he has not acquiesced in the judgments so as to preclude the hearing of his appeal upon the merits. Appellee further argues appellant should be foreclosed from ap peal because, by reason of his initial petition to probate the 1967 will, he invited and consented to the orders complained of and that his present position is fatally inconsistent with his prior position. This contention is patently without merit (see also K. S. A. 59-2225). The judgments appealed from are reversed for further proceedings in harmony with the views herein expressed. APPROVED BY THE COURT.

The opinion of the court was delivered by Schroeder, J.: This is an appeal in -a criminal action from a conviction and sentence on two charges of second degree burglary and grand larceny in connection therewith contrary to K. S. A. 21-520 and 21-524. The appellant specifies the trial court erred in (a) consolidating the two cases against him for purposes of trial; (b) permitting the prosecuting attorney to examine his own witnesses by leading and suggestive questions; and (c) overruling his motion for a new trial based on the ground of newly discovered evidence. Briefly stated, the evidence discloses that Larry Joe Collins (defendant-appellant) during the early evening hours of May 31, 1967, was in the company of John Patterson, his wife, Sharon Patterson, Gary Leach and Joe Campos in a tavern called Jenk’s Jive in the city of Wichita, which is located near the Kansas Lighting Distributors, Inc. There was “bad blood” between John Patterson and the appellant, which came about because the appellant started keeping company with Patterson’s wife while Patterson was confined in the Sedgwick County jail. The purpose of the meeting at the tavern on the evening in question was ostensibly to call “a peace treaty.” After Leach and Campos left the tavern, conversation soon turned to burglarizing the place next door, Kansas Lighting Distributors, Inc. Patterson testified he went into the alley, climbed up to the roof and entered the building through an attic window. Once inside he located the safe and rolled it to the door. Patterson then opened the door and went back to the tavern where he told the appellant the safe was ready to be punched. After an attempt to punch the safe was unsuccessful, it was loaded into the back of the appellant’s automobile and taken to a residence at 2301 Mascot in the city of Wichita, which was occupied by Benny Ray Wolfenbarger and Raymond Czernialc. The safe was unloaded from the trunk of the automobile, taken into the house where it was opened, and the contents removed. The safe was then hauled away and dumped into the river. Patterson testified that after this incident he, his wife and the appellant went to Joe’s Lounge where they again met Gary Leach and they “decided to get this Rose Bowl West.” Patterson then told of the group breaking and entering into the bowling alley, removing the safe, taking it to the appellant’s house, opening it, removing the contents, and finally throwing the safe into the river. The appellant was charged with second degree burglary and grand larceny in one information for the burglary committed at the Kansas Lighting Distributors, Inc. He was charged in another information with burglary in the second degree and grand larceny for burglarizing the Rose Bowl West bowling alley. Patterson toned state’s evidence upon being granted immunity from prosecution for the Rose Bowl West incident. Upon motion the trial court consolidated the two cases against the appellant for trial. The appellant entered pleas of not guilty, was tried to a jury and found guilty. He was sentenced as an habitual criminal pursuant to K. S. A. 21-107a and given twenty-five years in the state penitentiary on each burglary and larceny count, the four sentences to run consecutively. The appellant, an indigent, was represented throughout the trial and on appeal by Wilmer E. Goering, a duly authorized practicing attorney appointed by the trial court to represent the appellant. Appeal has been duly perfected specifying the errors heretofore indicated. Over objection of the appellant the trial court consolidated the two cases against him for trial. On appeal the appellant relies primarily upon language in State v. Thompson, 139 Kan. 59, 29 P. 2d 1101. It has been repeatedly held where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial. (State v. Brown, 181 Kan. 375, 312 P. 2d 832; and State v. Anderson, 202 Kan. 52, 446 P. 2d 844.) Whether a defendant who is charged with several separate and distinct felonies, as above stated, may be tried upon all of the several counts of the information at one and the same time, and in one trial, rests in the sound judicial discretion of the trial court. (State v. Brown, supra.) Upon motion of the state, the offenses with which the appellant was charged in the two cases were consolidated for trial because the offenses were of the same tj'pe, requiring the same mode of trial, the evidence as to both offenses would be interrelated, and the punishment in both cases would be the same. No distinction is made in the law, as above stated, where separate informations are filed against the same defendant charging him with similar offenses, and die trial court sustains a motion to consolidate the two cases for trial. (State v. Browning, 182 Kan. 244, 320 P. 2d 844.) The appellant in State v. Brown, supra, relied upon the same language in State v. Thompson, supra, asserted by the appellant herein. In Brown the decisions of this court were carefully analyzed and the arguments of the appellant herein were shown to have no merit on facts similar to those here presented. In the instant case the chisel and hammer used to open each of the safes in question were shown to be the same. This was disclosed by an analysis of the paint from each of the safes recovered from the river and the hammer and chisel recovered from a trash barrel near the appellant’s residence. Under these circumstances the state was confronted with the possibility that a prosecution for a second offense may have been barred under K. S. A. 62-1449 had the cases not been consolidated for trial. (State v. Momb, 154 Kan. 435, 119 P. 2d 544; and State v. Browning, supra.) In the instant case the two burglaries and larcenies occurred on or about the same day, both crimes were committed in a single series of transactions, and some of the same evidence was needed to prove each offense. Under all of the circumstances heretofore related, the trial court did not err in consolidating the two cases for trial. The appellant contends the trial court erred in permitting the state to refresh the memory of Wolfenbarger and Czernialc with previous statements made to and recorded by the Wichita police department, or in permitting the state to use leading questions to examine these state witnesses. While ordinarily a party may not impeach his own witness, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements; and may, in the discretion of the court, be permitted to show what such contrary statements were. (State v. Jones, 202 Kan. 31, 48, 446 P. 2d 851.) Wolfenbarger and Czerniak were both called as state witnesses and examined as accessories to the burglary of Kansas Lighting Distributors, Inc. A sledge hammer located in a back room of their house was used in the “peeling” of the safe. Two chisels were used, the larger one also came from the back room of their house. Examination of these witnesses by the state disclosed them to be reluctant if not actually hostile. Over objection the trial court permitted these witnesses to be examined by leading questions concerning previous statements they had made to the police. With respect to the witness Czerniak the appellant made no objection to any questions on the ground they were leading. Both witnesses testified it would refresh their memory to see a transcript of their previous statement disclosing their past recollection. It has been stated a witness may refresh his recollection by reference to a writing or memorandum made by him shortly after the occurrence of the fact to which he relates and testify to the fact provided he then has an independent recollection of the subject matter. The weight and force of such testimony is for the trier of the fact. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.) An examination of the record presented herein discloses the situation to fit squarely within the foregoing rule. The evidentiary rules applicable to the examination of witnesses in criminal trials are within the ambit of the civil code. (K. S. A. 62-1413; State v. Wright, 194 Kan. 271, 398 P. 2d 339; and State v. Taylor, 198 Kan. 290, 424 P. 2d 612.) The form and admissibility of evidence is covered in K. S. A. 60-243 (a) and (b). It is specifically provided in 60-243 (b), supra, that “A party may interrogate any unwilling or hostile witness by leading questions.” K. S. A. 60-420 provides for the impeachment of a witness by either party, including the party calling him. (See Gard, Kansas Code of Civil Procedure Annotated, § 60-243, pp. 210, 212.) An examination of the record does not disclose the trial court erred in permitting the examination of Wolfenbarger and Czerniak by the prosecution on matters concerning which the appellant makes complaint. The appellant has failed to make it affirmatively appear that prejudicial error resulted from the court’s rulings. The appellant contends the trial court erred in overruling his motion for a new trial based on newly discovered evidence as to the Rose Bowl West burglary. An investigator for the Wichita police laboratory who participated in an investigation of the apartment rented by the appellant and the surrounding area on June 1, 1967, stated that a search was made of some trash barrels in the vicinity of the apartment belonging to the appellant. In a trash barrel located behind the apartment, which is the next address to the north of the appellant, they found a brown sack containing a hammer and chisel. Upon examination the hammer and chisel were found to be the ones used to break open the two safes in question. The appellant contends it was not until Patterson testified at the trial that he was informed as to the persons involved in the Rose Bowl West burglary, namely Gary Leach and possibly one Steve Campos. Neither of these two individuals could be located by the appellant at the time of trial. He contends, it was discovered after the trial was concluded, that these two individuals at the time in question lived in an apartment on the premises where the hammer and chisel apparently used in the burglaries were found in a trash barrel. He argues this evidence could not have been discovered prior to or at the time of trial. It is to be noted the record discloses evidence that Leach was present at Jenk’s Jive with the appellant prior to the first burglary and also met with the appellant and Patterson after the first burglary and participated in the second. The appellant’s argument admits Leach lived in an apartment house adjacent to the home of the appellant at the time of the two burglaries. Aside from this point, the evidence which the appellant claims to have been newly discovered was never offered in any form upon the hearing on the motion for a new trial. The evidence was not supported by affidavit, oral testimony or by deposition as required by K. S. A. 60-259 (g). By reason of K. S. A. 62-1414, the provisions of 60-259, supra, are made applicable to criminal cases. K. S. A. 60-259 (g) provides: “Production of evidence. In all cases where the ground of the motion is error in the exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence, such evidence shall be produced at the hearing of the motion by affidavit, or when authorized by the judge by deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.” Before a trial court is authorized to grant a new trial on the ground of newly discovered evidence, it must first be shown to the court’s satisfaction that such evidence could not with reasonable diligence have been produced at the trial. (State v. Leigh, 166 Kan. 104, 199 P. 2d 504.) No showing has been made by the appellant why reasonable diligence at the time of and during the trial could not have produced the evidence now claimed to have been newly discovered. A careful review of the record fails to disclose the trial court erred in any of the particulars specified by the appellant. The judgment of the lower court is affirmed.

The opinion of the court was delivered by Hatcher, C.: This is an appeal from a verdict in an action for damages for personal injuries received when the automobile in which plaintiff was riding was struck in the rear by another automobile. The plaintiff, LaVonne McLinn, and her husband, Duane Mc-Linn, brought the action under K. S. A. 23-205 for loss or impairment of LaVonne’s ability to perform services as a married woman and for damages to the automobile. The defendant admitted liability and the case was submitted to the jury as to the amount of damage only. The jury returned a verdict in favor of the plaintiff, LaVonne McLinn, in the amount of $1,000 and a verdict in favor of the husband in the amount of $500. The plaintiffs have appealed. The .appellants state their position before this court as follows: “As the defendant has admitted liability the only issue before this court is whether the trial court should have given an instruction defining plaintiffs’ right to recover for an aggravation of pre-existing conditions and disabilities caused by the negligence of the defendant. . . .” The appellants claim aggravation to pre-existing conditions and disabilities in two particulars—(1) lower back pains resulting from pregnancy and (2) anxiety or mental distress. The appellee contends that the appellants’ evidence shows nothing more than mental anguish, pain and suffering. We are not inclined to present the testimony at great length. However, a brief quotation from each category will clearly present the issue. As to the aggravation of lower back pains due to pregnancy there was medical testimony as follows: “Q. All right. Did you have an opinion as to what condition she had as a result of her automobile accident in November of 1965? “A. Yes. “Q. And what was that, sir? “A. I thought it was entirely conceivable that she could have sustained an acute back sprain from the type of injury despite the fact that the low-back is somewhat protected by the position of the seat of the car in this type of rear-end collision, and also considering the fact that low-back pain is extremely common in later months of pregnancy anyway, but this could have been aggravated to some degree by the injury.” On the question of aggravation of anxiety or mental distress there was medical testimony as follows: “Q. Yes. So, what you’re telling this jury is that basically this woman has the type of personality that if she is subjected to any form of stress that she has less tolerance for that stress than, let’s say, the average human being would have. “A. Yes, sir. “Q. If she’s faced with a crisis, she’s liable to react differently or more hysterically than the average individual; wouldn’t you say? “A. Yes, that’s right. “Q. Now, the same goes for persons that are subjected to pain; wouldn’t you say that some people can tolerate pain less than other people? “A. Correct. “Q. And pain would have a tendancy to produce hysteria or anxiety in a person of this low mentality range; isn’t that right? “A. It would create more pain probably than in another person who was not so endowed, meaning who has different personality strength. “Q. This pain has persisted through medication, through traction, and everything, apd the woman’s attitude has changed into a person that has anxiety about what’s happening to her and she’s like you found her the day you examined her. Now, Doctor, wouldn’t you say with a degree of medical certainty that this accident triggered or activated the anxiety that you see in her the day that you tested her? “A. Yes, sir.” We need not enter into a lengthy discussion of the weight and effect of the appellants’ evidence. The trial court did instruct on the amount of appellants’ recovery as follows: “You may consider any of the following as were shown by the evidence: “(a) Pain, suffering, or disabilities and any accompanying mental anguish suffered by the plaintiff to date and those she is reasonably certain to experience in the future; “(b) The reasonable expenses of necessary medical care, hospitalization and treatment received and reasonable expenses of necessary medical care, hospitalization and treatment reasonably certain to be needed in the future. “In arriving at the amount of your verdict you should consider plaintiff’s age, condition of health, before and after, and the nature, extent and duration of her injuries. For such items as pain, suffering, disability and mental anguish, there is no unit value and no mathematical formula the Court can give you. You should award such sum as will fairly and adequately compensate her.” (Emphasis supplied.) If the jury considered the condition of LaVonne’s health before and after her injuries, as instructed by the court, it must have of necessity considered aggravation of pre-existing conditions and disabilities. The instruction, when considered in connection with the other instructions, sufficiently covered the subject. All instructions are to be considered together in determining whether one of them is prejudicial, unless it is a clear and prejudicial misstatement of the law. (State v. Turner, 193 Kan. 189, 392 P. 2d 863; Hughes v. Atkinson, 188 Kan. 413, 362 P. 2d 618.) It is true that we have a pattern instruction on the issue. (P. I. K. 9.43.) However, this does not mean that an instruction differently worded constitutes error. An instruction not prejudicially erroneous will not constitute grounds for reversal. (Bollinger v. Railway Co., 114 Kan. 669, 220 Pac. 274.) The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by O’Connor, J.: This action was instituted by a group of taxpayers (appellants) against Unified School District No. 346 and its board members (appellees) to challenge the validity of a special bond election held June 14, 1968. The taxpayers have appealed from the judgment of the district court finding the proceedings valid and refusing to enjoin the sale and issuance of bonds authorized by the election. Appellants question the validity of the election proceedings on the grounds: (1) The published notice of the bond election did not comply in certain particulars with the provisions of K. S. A. 1967 Supp. 72-67,114 (f) (Repealed, L. 1968, ch. 59, § 45); (2) there was a conflict between the wording of the board’s resolution calling the election and the published notice and ballot; (3) the board adopted the resolution calling the election at a special meeting for which no written notice was given, nor were there waivers of such notice; and (4) the election was conducted by the county clerk instead of the board of education of the school district. The facts are not in dispute. The territory of the district includes parts of both Linn and Bourbon counties. A special meeting of the district board was held May 20, 1968. All members of the board were present in person and participated in the proceedings. The minutes recite the purpose of the meeting was to determine a date for a bond election and to pass a resolution to call the election. The resolution provided in part: “Section 1. That an election shall be called and held in said Unified School District on the question of issuing General Obligation Bonds in the amount of not exceeding $900,000.00 for the purpose of purchasing necessary site, constructing and equipping of necessary new school buildings in said district, this being the estimated cost of said improvements, all as provided by law, specifically Sections 72-6761 and 75-2315 to 75-2318, Kansas Statutes Annotated, and any amendments thereto, polling places for such election to be at the City Halls in Prescott, Blue Mound, and Mound City, Kansas. . . . “Section 2. The Clerk of the District Court Board is hereby authorized and directed to call upon the County Clerk the ‘official election officer’ to join with said school board to give notice of said election, including the date, hours, polling place, and purpose thereof, in full compliance with all the requirements of law, by publishing in a newspaper of general circulation in said School District for three consecutive weeks, the first publication to be not less than twenty-one full days prior to said election.” The minutes of the special meeting indicate in two separate places the resolution was unanimously adopted, while in the third instance the minutes reflect one member of the board abstained from voting. Plans and suggestions for presenting the information to the public through news releases and by the mailing of brochures were also discussed at the special meeting. Notice of the election was first published in the Mound City Republic, May 23, 1968. Pertinent portions of the notice are as follows: “. . . it is hereby ordered by the Board . . . and said order approved by the County Clerk of Linn County, Kansas, the ‘County Election Officer,’ that AN ELECTION be held in said Unified School District No. 346, Linn County, Kansas (In Linn and Bourbon Counties, Kansas), on the 14th day of June, 1968, upon the question of issuing General Obligation Bonds in an amount not exceeding $900,-000.00 for the purpose of purchasing necessary site, constructing and equipping of necessary new school building in said District. “. . . the polling places shall be as follows: City Hall in the City of Prescott, Kansas. City Hall in the City of Mound City, Kansas. City Hall in the City of Blue Mound, Kansas. The vote shall be by ballot. “Dated this 20th day of May, 1968. “Published . . . for three consecutive weeks and for more than twenty-one full days before said election. . . . “By Order of the Board . . . Eixwood Stambaugh, President, Board of Education, Unified School District No. 346, Linn County, Kansas T. T. Concannon, Treasurer T. T. Concannon, County Clerk, Linn County, Kansas, ‘County Election Officer.’ “Attest: Eltheda R. Kennedy, Clerk. (Seal)” Prior to the election printed brochures containing information about the contemplated budding, its location, cost, floor plan, capacity, and the fact it was to be for high school grades 9 through 12, were prepared and mailed by the superintendent of the school district to 1,947 residents and electors of the district. News articles explaining the election and describing the proposed building appeared in two local newspapers—the Mound City Republic and the Fort Scott Tribune. Election boards were appointed by the county clerk, and the election was held June 14, 1968. The ballot proposition presented to the voters read in part as follows: “SHALL THE FOLLOWING BE ADOPTED? “Shall Unified School District No. 346 Linn County, Kansas (In Linn and Bourbon Counties, Kansas) issue and sell General Obligation Bonds of said Unified School District in the sum of not exceeding $900,000.00 for the purpose of Purchasing Necessary Site, Constructing and Equipping of necessary new school building in said district. All as provided for by Section 72-6761 and 75-2315 to 75-2318, Kansas Statutes Annotated and any Amendments Thereto?” Returns from each election board were taken to the county clerk and tabulated by him. On June 17, 1968, after a canvass of the results by the board of county commissioners of Linn county, the commissioners certified the vote as follows: “For the Bond issue..................................... 809 Against the Bond issue.................................. 803 Void Ballots............................................. 19 Total Ballots ............................................ 1631” At the next regular meeting of the district board the county commissioners’ canvass was “joined in and approved” by the board. The case was decided by the district court on a stipulated record. In the course of his memorandum opinion, the trial judge observed there was nothing in the record to indicate that any illegal votes were cast, that any persons who were not electors of the district voted, that any qualified electors were prevented from voting, nor that there was any misunderstanding among the electors or that they were misled in any respect. This same observation is borne out on appeal, for, as in the lower court, the substance of appellants’ argument is that numerous irregularities and defects, particularly in the published notice, were of such substantial nature as to vitiate the election. Turning to the alleged defects in the notice, we find the provisions of K. S. A. 1967 Supp. 72-67,114 (f), which was in effect and controlling at the time of these proceedings (see, Masheter v. Vining, 198 Kan. 691, 426 P. 2d 149), required the published notice of a special bond election to state: “. . . (1) the name of the unified district, (2) the date of the bond election, (3) the purpose for which the bonds are to be issued, (4) the amount of bonds to be issued, (5) the proposition to be voted upon, (6) the hours of opening and closing of the polls, (7) the voting place or places and the territory each voting place is to serve, (8) the amount and purpose of the bonds proposed to be issued, and (9) the address of the election headquarters of the officer or board conducting the election.” Appellants urge that the purpose for which the bonds were to be issued, as stated in the notice—“purchasing necessary site, constructing and equipping of necessary new school building in said District” —was so vague and indefinite that an elector had no way of knowing whether the proposal was to build a grade school, junior high school or high school. The purpose stated in the ballot proposition submitted to the electors (K. S. A. 1968 Supp. 25-605) corresponded verbatim with that in the notice. The election in question was authorized under the provisions of K. S. A. 72-6761, which provides in part: “. . . When a board determines that it is necessary to purchase . . . a school site . . . or to construct, equip . . . any building . . . used for school purposes, . . . such board may submit to the electors of the unified district the question of issuing general obligation bonds for one or more of the above purposes, . . .” The wording of the notice and ballot went no further than the general wording of the purposes stated in the statute. The obvious intent of the legislature, in requiring the notice to state the purpose for which bonds are to be issued, was to make certain the question to be voted upon was clearly stated so that the electors would not be misled thereby. Equally important is that the ballot state the purpose with clarity. Since bonds may be issued only for such purposes as authorized by statute, with the approval of the electors, each voter must have a fair opportunity to register an intelligent expression of his will. The fundamental principle running through all the cases is that the election laws contemplate that when a special proposition is submitted to a popular vote, the ballot (as well as the notice) shall clearly state the substance of the question to be voted upon by the electors. The decisions of this court on the subject are extensively reviewed in Unified School District v. Hedrick, 203 Kan. 478, 454 P. 2d 536; Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P. 2d 138; City of Coffeyville v. Robb, 165 Kan. 219, 194 P. 2d 475; Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421. We are of the opinion, under all the circumstances presented, that the purpose stated in the notice and ballot was sufficient to apprise the electors of the issue they were voting upon. In light of the widespread publicity made' available to the electors by the mailed brochures and newspaper articles, there could be no doubt whatever that the bonds were to be used to construct a high school building. These items of information, although clearly not a substitute for the official notice required by statute, may nevertheless be considered as supplemental thereto in determining whether the electorate was fully informed on the matter to be voted upon. (See, State, ex rel., v. Lane Rural High School District, 173 Kan. 1, 243 P. 2d 232; Eastern Kansas Utilities, Inc., v. City of Paola, 165 Kan. 558, 196 P. 2d 199; 29 C. J. S., Elections § 73.) Out of approximately 1,947 electors in the district 1,631 voted in the election, yet no contention is advanced that any voter was misled in respect to the purpose for which the bonds were to be issued. Along the same vein, appellants urge the “proposition to be voted upon” was not set out in the published notice. True, the word “proposition” was not used; the notice merely stated an election would be held “upon the question of issuing General Obligation Bonds. . . .” The word “question” is defined as a proposition to be voted on. (Webster’s Third International Dictionary, Unabridged.) We perceive nothing misleading in this respect, and are of the view the proposition to be submitted was adequately stated in the notice. Likewise without substance is appellants’ assertion the notice and ballot were indefinite because the specific amount of bonds was not stated but only a ceiling—“not exceeding $900,000.00.” In Gray v. Joint Rural High School District No. 9, 178 Kan. 387, 286 P. 2d 147, the court stated: “It is to be noted further that the proposals were to vote bonds in an amount not io exceed a stated amount. Any contention that the exact amount of bonds to be issued was not stated and therefore the elections were illegal cannot be sustained. At the time of the elections there was nothing to indicate the full amount would not be issued and sold. ... At the time the present elections were called and when they were held the total cost of the improvement was an estimated cost and not a finality. Had the improvement cost less than the estimated cost, the bond issue would have been limited to the actual cost and expenses of such improvement (G. S. 1949, 10-104). . . .” (pp. 393-394.) Finally, appellants complain that the notice designated three polling places but the territory to be served by each was not stated, as required by the statute. This constituted an irregularity and a departure from what we regard a directory provision of the statute; but on this record the validity of the election was unaffected. While time and manner of notice may be regarded as mandatory, and strict compliance a necessity (Baugh v. Rural High School District, 185 Kan. 123, 340 P. 2d 891, and cases therein cited; cf., Drum v. French, 138 Kan. 277, 25 P. 2d 579; 26 Am. Jur. 2d, Elections § 198), a departure from a directory provision does not necessarily compel annulment of an election. In Stanhope v. Rural High-school District, 110 Kan. 739, 205 Pac. 648, this court said: “We have often held that irregularities in elections, where there had been departures from directory provisions of the statute, did not vitiate such elections where such irregularities did not frustrate or tend to prevent the free expression of the electors’ intentions, nor otherwise to mislead them. . . .” (p. 744.) Here, there is absolutely no showing that any person voted who was not entitled to vote, or that any voter voted at more than one polling place, or that any qualified elector was prevented from voting because of the irregularity. For the reasons discussed, we hold that the published notice substantially complied with the provisions of K. S. A. 1967 Supp. 72-67,114 (f). A further contention raised by appellants is that an inconsistency existed because the resolution of the board calling the special election used the word “buildings” but the notice of election and ballot proposition referred to “building.” We cannot regard this irregularity fatal to the election. For all we know, the discrepancy may have been a typographical error, for the notice and ballot, as well as the brochures and newspaper articles, clearly disclose the board contemplated the erection of only one building. The case of Honohan v. United Community Sch. Dist., 258 Iowa 57, 137 N. W. 2d 601, relied on by appellants, is neither analogous nor persuasive. There, the petition requesting a special election, the resolution calling the election, and the notice of election, all referred to the building of a “new schoolhouse,” whereas the ballot stated the question was construction of a “new senior high school building.” This was held to be a substantial variance and voided the election. The court, after noting the terms “schoolhouse” and “senior high school” were not synonymous, stated that the people were compelled to vote on a proposal which, as far as the record disclosed, they had neither heard about nor considered prior to the challenged election. Appellants also challenge the validity of the resolution adopted by the board May 20, 1968, because no written notice of the special meeting was given, nor were there waivers thereof, as required by K. S. A. 1968 Supp. 72-8205. The statute, in part, provides: “. . . Special meetings may be called at any time . . . Written notice, stating the time and place of any special meeting and the purpose for which called, shall, unless waived, be given each member of the board at least two (2) days in advance of said meeting and no business other than that stated in the notice shaE be transacted at such meeting. . . The fact there were neither written notices of the meeting nor written waivers is conceded. The record discloses, however, that all members of the board were present and participated without objection in the business before the board. The situation is not unlike a special meeting of the council of a city of the third class at which the mayor, clerk, and all members of the council are present and participate in matters coming before the council for consideration where the statutory requirement of written request and formal call of such meeting (K. S. A. 15-106) is deemed to have been waived. (Bluff City v. Western Light & Power Corp., 137 Kan. 169, 19 P. 2d 478.) Under the circumstances, we think the written, notice required by the statute was effectively waived and the proceedings had were valid. The rule is well stated in 78 C. J. S., Schools and School Districts § 123b: “. . . where aE the members of a board are present and participate in a meeting thereof they may take official action, and the fact that no notice of such meeting was given, or no formal call was issued, ... is immaterial to the validity of the proceedings. . . .” (p. 913.) As their last point appellants urge the special election was void because the board abdicated its responsibility for conducting the election by turning the matter over to the county clerk of Linn county. The election law on June 14, 1968, was in a transitional stage. Chapter 406 of the 1968 Session Laws had been enacted, and provided in essence for the county clerk, as “county election officer,” to conduct all national, state, county, township, city, and school elections and “question submitted elections” held on the same day as any national, state, city or school primary or general election. No mention, however, was made about “question submitted elections” held on other days, such as the election here. Thus, the board of education of a unified school district remained responsible for conducting its own election. (See, K. S. A. 1967 Supp. 72-6752.) Chapter 59 of the 1968 Session Laws, which did not become effective until July 1, 1968, placed the responsibility for conducting a “question submitted election” on the county election officer, who in this instance was the county clerk. The record discloses the board proceeded to call the election and, apparently out of an abundance of caution, requested the county clerk, as county election officer, to join with it in holding the election. The notice was signed by the board as well as by the county election officer. As previously indicated, the canvass of the results by the board of county commissioners was “joined in and approved” by the board. These facts fail to sustain appellants’ argument that the board abandoned its responsibility. In the absence of any showing that the results would be changed, or that the electors were prejudiced or confused in any way, the procedure followed by the board, while perhaps irregular, did not vitiate the election. The judgment of the district court upholding the validity of the election and denying injunctive relief is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is a direct appeal by the defendant in a criminal action in which the defendant was convicted upon his own plea of guilty and sentenced pursuant to K. S. A. 21-734. The underlying issue presented is whether the appellant was in lawful custody on September 12, 1967, at the time he actually departed from the Pomona Honor Camp, and thereby unlawfully gained his liberty contrary to the provisions of 21-734, supra. On the 28th day of October, 1966, the appellant was sentenced to the Kansas State Penitentiary at Lansing, Kansas, for a term less than life, by the district court of Johnson County, Kansas, upon his plea of guilty to the crime of assault with intent to commit grand larcency, as defined by K. S. A. 21-434. On the 8th day of August, 1967, while the appellant was serving the foregoing sentence imposed, he was transferred by the Director of Penal Institutions for the State of Kansas from the Kansas State Penitentiary to the State Industrial Reformatory at Hutchinson, Kansas, as a trusty to the Honor Camp at Pomona Reservoir located within Osage County, Kansas. The appellant remained at the Pomona Honor Camp until his escape therefrom on the 12th day of September, 1967. His departure was voluntary. Several days thereafter upon being apprehended, the appellant was returned to the Kansas State Penitentiary, Lansing, Kansas. Thereafter he was taken to Osage County, Kansas, where in accordance with K. S. A. 62-401 he was charged, entered a plea of guilty, and sentenced for the crime of escape without breaking prison as defined by K. S. A. 21-734. The appellant specifies that the trial court erred in overruling his motion to quash the information because it did not have venue or jurisdiction of the offense committed on the facts alleged in the amended information, and the facts stated in the amended information did not constitute a public offense. This specification raises the question heretofore stated. After the appeal in the instant case was perfected, this court decided the questions here presented in State v. Carreiro, 203 Kan. 875, 457 P. 2d 123. Except for the dates, the facts stated by the court in that case and the information charging the appellant are identical. The court there held: “A prisoner committed to the State Penitentiary under a sentence confining him at hard labor for a term less than life, may be transferred by the Director of Penal Institutions pursuant to K. S. A. 76-2311 to the Industrial Reformatory, and be assigned by the Director to perform labor on state property in any county of the state pursuant to K. S. A. 76-2442a. While in another county to which the prisoner is assigned for labor under supervision, the prisoner is in lawful custody pursuant to the sentence and order of commitment entered by the court. “Where a prisoner is assigned to an Honor Camp to perform labor in Osage County on state property in accordance with Syllabus ¶ 1, his subsequent escape from the Honor Camp constitutes the crime of escape as defined by K. S. A. 21-734. “To constitute an escape on the part of a prisoner there must be lawful custody and an actual departure from the place of confinement whereby he unlawfully gains his liberty. “Under K. S. A. 62-401 it is mandatory that a criminal offense be prosecuted in the county in which it is committed. Thus, it has been held a court must have venue of an offense or it does not have jurisdiction.” (Syl. ¶¶ 1 through 4.) What was said and held by this court in State v. Carreiro, supra, controls the decision herein. The judgment of the lower court is affirmed.

The opinion of the court was delivered by O’Connor, J.: The director of revenue has appealed from a judgment of the district court of Sedgwick county abating and setting aside an order of the Board of Tax Appeals sustaining an assessment against Cities Service Gas Company (hereinafter referred to as Gas Company) for additional corporate state income tax for the year 1958 in the amount of $128,462.67, plus interest. The additional assessment came about because of the director’s disallowance of a federal income tax deduction of $6,367,534 claimed on Gas Company’s 1958 Kansas return. The over-all question is whether Gas Company, in computing its net income for the year in question, was entitled to take a deduction for federal income tax paid, accrued or incurred, based on its computation of what the company owed the federal government on a separate-return basis when, in fact, it joined with other wholly owned subsidiaries of the parent company, Cities Service Company, in the filing of a consolidated federal income tax return showing no tax due. Under applicable provisions of the internal revenue code, all corporations whose voting stock is owned 80% or more by a parent company must join in the filing of a consolidated federal income tax return. When a consolidated return is filed, a separate return must be prepared for each company. The separate returns are transmitted to the Internal Revenue Service, together with the consolidated return in which the losses of any company, or companies, in the consolidation are offset against the taxable income of other companies in the group. In addition, losses can be carried back for three years or carried forward for five years, and can be offset against taxable income for those years. A résumé of the factual background to this controversy will focus the decisive issue before us. Gas Company is engaged in the unitary gas pipeline business of purchasing, transporting and selling natural gas. It purchases gas in Texas, Oklahoma and Kansas, and transmits it by means of a continuous, interconnected network of pipelines for marketing in Texas, Oklahoma, Kansas, Missouri, and Nebraska. Since its organization in 1922, and until August 1, 1963, the company was directly or indirectly a wholly owned subsidiary of Cities Service Company. In addition, the parent company was also the 100% owner of 34 other subsidiary corporations which are engaged in the unitary petroleum business. For the year 1958 Gas Company prepared its individual corporate federal income tax return, reflecting net income of $12,256,412 from its five-state unitary gas pipeline business and federal income tax due thereon of $6,367,534. This return was forwarded by Gas Company to die parent, Cities Service Company, along with Gas Company’s four separate checks totaling $6,367,534, payable to the parent company. Each check was accompanied by a voucher stating, in essence, that the check was in payment of an installment of Gas Company’s federal income tax for the calendar year 1958. In similar fashion the 34 other subsidiaries engaged in the unitary petroleum business also prepared and delivered to the parent company their 1958 federal income tax returns on a separate-return basis. Those subsidiaries showing a profit on their individual returns paid the parent company a total of $10,415,212 for federal income taxes, as reflected in their separate returns, thus making a grand total of $16,782,746 received by the parent from all its profit subsidiaries, including Gas Company. These payments were exactly equal to the amount the subsidiaries would have paid to the federal government had their federal income tax returns been filed independent of the consolidated return. After receiving the individual federal income tax returns from each of its subsidiaries, the Cities Service Company prepared a consolidated federal retrun to which was attached the separate returns of the subsidiary corporations. Gas Company’s net income of $12,-256,412 was reported to the federal government and was included in the consolidated return. Exclusive of the profit shown by Gas Company from its unitary gas pipeline business, the unitary petroleum business conducted by Cities Service Company through its 34 subsidiary corporations sustained a net loss for the year 1958 in the amount of $19,401,983. Under provisions of the internal revenue code, the unitary petroleum business was entitled to carry back the net loss to the year 1955 and offset it against net taxable income for that year of $23,-286,129 on which it had paid the federal government $12,533,020 in taxes. By reason of the net loss sustained in 1958, the unitary petroluem business would have been entitled to a refund of $10,-224,666 on the tax it had paid in 1955. But, because of the inclusion of Gas Company’s 1958 taxable income in the 1958 consolidated return, the refund received by the unitary petroleum business from the federal government was reduced by $6,367,534 (the exact amount of tax payable upon Gas Company’s taxable income), to $3,857,132. Under established accounting procedures used by Cities Service Company and its subsidiaries, the $3,857,132 refund received by the parent company in 1958 from the federal government, plus the $16,782,746 received by the parent company in 1958 from its profit subsidiaries (including Gas Company), was paid by the parent company to those subsidiaries reporting losses in 1958. Thus, the sum, totaling $20,639,878, was not retained by the parent company but was paid to the loss subsidiaries on the theory their losses had been utilized on the consolidated return and had thereby reduced the tax that would otherwise have been due. Gas Company, having had taxable income for the year in question, received no portion of the $20,639,878 distributed by Cities Service Company to its loss subsidiaries. There was undisputed testimony in district court by the retired senior vice president of Cities Service Company that the method of accounting employed by the companies in allocating federal income tax liability on a consolidated-return basis had been recognized and approved by the Internal Revenue Service for many years. (See § 1552 Int. Rev. Code of 1954, 26 U. S. C. A. § 1552.) This particular method contemplates compensating payments to loss subsidiaries for the benefits derived from the use of their operating losses in the consolidated return and is an accepted accounting procedure. Gas Company has been filing Kansas income tax returns each year since the Kansas Income Tax Act was enacted in 1933. On its Kansas return for 1958 Gas Company reported net income from its five-state operation as $12,256,412 (the same as shown on the federal return), and claimed as a deduction for federal income tax paid the amount of $6,367,534. Under the allocation formula as provided in G. S. 1949, 79-3218, Gas Company allocated 57.-55187% of its five-state net income to the State of Kansas. As reflected by the Kansas return, Gas Company owed tax to the State of Kansas of $121,714.85, which it paid. There was evidence that in each year where permitted by federal law Gas Company joined in the filing of a consolidated federal income tax return, and it had reported its tax to the State of Kansas and made its claim for federal income tax deduction in the same manner as in the year 1958. Over the years no question was ever raised by the director regarding the method followed by Gas Company in computing the amount of its deduction. For that matter, Gas Company had no knowledge that the director was going to view the matter any differently than in prior years until receipt of his assessment letter of March 1963 with the notation, “Information available indicates no Federal income tax liability, and the entire Federal income tax deduction is disallowed.” The directors action was not the result of a specific regulation being promulgated by him pertaining to the amount of federal income tax that could be deducted on a Kansas return where the corporate taxpayer included its net income in a consolidated return; rather, it was prompted by a member of the director’s staff who had read an article in a financial publication about Cities Service Company receiving a large federal refund for the tax year 1958. The district court, in its memorandum decision, found that as a result of the accounting procedure utilized in this case, no gain resulted to the parent, Cities Service Company, from Gas Company’s payment of $6,367,534, and Gas Company was poorer to the extent of its liability in that amount. Furthermore, there was no tax saving to Gas Company because of its taxable income and the tax thereon having been reported on the consolidated return. The court concluded that Gas Company did incur, and pay, federal income tax for the year 1958 in the amount of $6,367,534, and that the director’s disallowance of Gas Company’s claimed deduction was erroneous. Under the provisions of the Kansas Income Tax Act in effect for 1958 (G. S. 1957 Supp., 79-3203[b]), corporations were required to pay an annual tax on their entire net income derived from property located and business transacted within the state during the taxable year. G. S. 1957 Supp. 79-3206 (a) (3) allowed a deduction for federal income taxes paid during the year. G. S. 1949, 79-3202 read: “(8) The word ‘paid’ means ‘paid or incurred’ or ‘paid or accrued’ and shall he construed in accordance with the method of accounting used as a basis for computing net income under this act.” The director’s position, as stated in his brief, is that a subsidiary corporation joining in the filing of a consolidated federal income tax return is entitled to a deduction for the payment of federal income tax on its state return for the amount of its proportionate share of the tax paid to the federal government. Consequently, if no tax is paid on the consolidated return, a subsidiary company is not entitled to a federal income tax deduction on its Kansas income tax return. In support of his interpretation the director relies heavily on Trunkline Gas Company v. Collector of Revenue (La. App. 1965), 182 So. 2d 674, which is factually similar to the instant case. The Louisiana statute, R. S. 47:241, read, in part: “. . . The amount of federal income taxes to be so deducted shall be that portion of the total federal income tax which is levied with respect to the particular income derived from sources in this state to be computed in accordance with rules and regulations of the collector of revenue. . . .” Pursuant to the statute the collector of revenue of the state of Louisiana promulgated a regulation (ITR 55.2), the pertinent portion of which stated: “Where a corporation includes its net income in a consolidated Federal income tax return, the portion of the total consolidated tax attributable to such corporation shall be determined by allocating the tax of the consolidated group to the several members of the group on the basis of the percentage of the total tax which the tax of such member, as computed on a separate return, would bear to the total amount of taxes for all members of the group so computed. . . .” (Trunkline Gas Company v. Collector of Revenue, supra, p. 677.) In Trunkline, as here, the subsidiary taxpayer contended that in computing its net income it was entitled to a full credit deduction for the amount of federal income tax it owed to the federal government on the basis of its separate income tax return. The collector, however, in computing the amount of federal income tax to be allowed as a deduction on the Louisiana income tax return for each of the years in question, allocated the consolidated federal income tax liability among members of the group on the basis of the ratio of the taxpayer’s federal net income tax on a separate-return basis to the total separate-return tax of all profit companies of the consolidated group, in accordance with the provisions of the collector’s regulation ITR 55.2. The court, in upholding the collector’s position, said: “We find, and so hold, that the payment by the parent company, Panhandle Eastern Pipe Line Company, of federal income taxes on a consolidated return which accounts for and includes net income of some affiliates, including Trunkline Gas Company, as well as operating losses of other affiliates, all wholly owned by the parent company, is not payment in fact of federal income taxes within the contemplation and intendment of LSA-R. S. 47:55, 47:241 as to entitle Trunkline Gas Company to full credit deduction of the federal income tax attributable to Louisiana derived income which it computes to be due the federal government as though it were paying this tax on the basis of a separate tax return. On this premise, it conclusively appears to us that the manner of allocating the portion of federal income tax to which Trunkline is entitled to deduct in arriving at net income produced from the designated Louisiana sources as prescribed by ITR 55.2 results in a credit of an equitable pro rata share of the consolidated federal income tax paid.” (p. 679.) We believe Trunkline is distinguishable from the case at hand, for there the decision turned on whether the collector’s regulation which furnished the basis for computing the amount of federal income tax allowable as a deduction was authorized by the statute. As previously indicated, the Kansas director of revenue had not seen fit to promulgate a specific regulation providing the amount a corporate taxpayer could deduct on its Kansas return for federal income tax where the taxpayer had joined in the filing of a consolidated federal income tax return. Both the director and Gas Company rely on our recent decision in Northern Natural Gas Producing Co. v. McCoy, 197 Kan. 740, 421 P. 2d 190, to support their respective positions. A review of the facts in that case is in order. The taxpayer corporation was a wholly owned subsidiary of Northern Natural Gas Company. The subsidiary, like Gas Company here, was a multi-state business with its net income, for federal income tax purposes, having been incurred from the multi-state operations. Due to the nature of its business the taxpayer was required to file on a direct accounting method in reporting its income to the State of Kansas, and under such method of accounting its taxable income earned in Kansas for 1960 was in excess of $4,000,000. The consolidated federal tax return of Northern and its subsidiaries disclosed that because of losses sustained in taxpayer’s multi-state operations outside the state of Kansas it had a net federal taxable income of $221,207.35, and taxpayer had paid to its parent company, Northern, the sum of $109,527.82 as its share of the 1960 federal income tax. Instead of claiming only the amount actually paid to the parent company, the taxpayer, on its Kansas return, claimed a deduction for federal income tax in excess of $2,000,000, being the amount taxpayer would have been required to pay had its operations been solely within the state of Kansas. The judgment of the district court sustaining the disallowance of the claimed deduction was affirmed by this court in the following language: “. . . We are of the opinion the words paid or incurred’ and ‘paid or accrued’ ... [as used in G. S. 1949, 79-3202 (8)] have reference only to the amount of federal income tax actually paid by the taxpayer during the taxable year, and conclude the director of revenue and the Board of Tax Appeals did not err in allowing the appellant [only] the sum of $109,527.82 as a federal income tax deduction in computing its 1960 Kansas income tax liability.” (Emphasis added.) (p.746.) The director views the Northern decision as saying a taxpayer filing a consolidated return with a group of other corporations may, for Kansas income tax purposes, claim as a deduction only its proportionate share of the consolidated federal tax liability, if there be one. Gas Company, on the other hand, looks on the case, and we believe rightly so, as holding that the subsidiary is authorized to deduct its federal income tax liability incurred on a separate-return basis and actually paid to its parent. The director does not seriously dispute Gas Company’s suggestion that even though it was required by the Internal Revenue Service to be joined in the consolidated federal income tax return for 1958, there was nothing in the internal revenue code which would have prevented it from making its checks for federal income taxes payable to the Internal Revenue Service instead of to the parent company, in which case the parent would have forwarded the checks to the District Director of Internal Revenue. Although this procedure would have required the parent to file a claim for refund, Gas Company would have satisfied its federal income tax liability in that way, and there would be no question of payment of the tax as far as Kansas was concerned. The accounting method followed by Cities Service Company, however, avoided this awkward procedure. Gas Company’s 1958 federal income tax liability ($6,367,534) was paid by checks made payable to the parent. The inclusion of Gas Company’s income in the consolidated return necessarily reflected its tax liability and resulted in the unitary petroleum business receiving a lesser refund than that to which it would have otherwise been entitled—the reduction being the same amount of Gas Company’s tax liability. In actuality, said liability was satisfied by the reduction of the parent’s refund. We believe the fact Gas Company’s checks were made payable to Cities Service Company instead of to the Internal Revenue Service is wholly insignificant, for in either case the end result was the same. Our attention has also been directed to Cities Service Gas Company v. Federal Power Commission, 337 F. 2d 97 (10th Cir. 1964), where the Circuit Court of Appeals was called upon to determine the amount of federal income tax Gas Company should be allowed as a cost of service for rate-making purposes. The Federal Power Commission had determined an average tax allowance by applying a formula which reflected the so-called “tax savings” effected by the filing of consolidated returns for the years 1957, 1958 and 1959. Gas Company challenged the power commission’s order, contending the company was entitled as a part of cost of service a tax allowance based upon the statutory corporate income tax rate of 52% applied to the agreed taxable income of the Gas Company for the test year 1958—in other words, the $6,367,534 paid by Gas Company to the parent, Cities Service Company.. The court held the commission’s order was unauthorized because the commission was without authority in determining just and reasonable rates for jurisdictional gas sales to take into account losses of non-regulated and unrelated affiliates in calculating tax allowance includible in the cost of service of a regulated company, such as Gas Company. • ■ ■ While the case can scarcely be regarded as controlling precedent for disposition of the question here, we find persuasive language in the opinion tending to support Gas Company’s contention that it incurred and paid federal income tax in the amount of $6,367,534: “We think it is legally fallacious to calculate the Gas Company’s tax allowance on the basis of the consolidated tax liability of the parent Company. This approach cannot be justified by the actualities of the case. The uncontroverted facts show that the Gas Company not only incurred a tax .liability during the representative years at the statutory 52 percent rate, but its tax liability at that rate was reported to the parent Company, and the consolidated returns actually reflect that tax liability. “. . . in both 1958 and 1959 the inclusion of the Gas Company in the consolidated returns directly affected the consolidated tax liability in the amount of 52 percent of the Gas Company’s taxable income, notwithstanding the fact that in those years the other Cities Service affiliates had aggregate tax losses;. Application of the loss carry-back provisions of the Internal Revenue Code permit the offsetting of these losses against the taxable income of these affiliates in 1955 and 1956, thereby resulting in tax refunds. No reduction in the actual total tax liability was thus effected since the net effect of the inclusion of the Gas Company in the 1958 and 1959 consolidated returns was to reduce the refund by 52 percent of the Gas Company’s taxable income. . . .” (p. 100.) The director also urges that a payment for federal income tax by a subsidiary to its parent in excess of an amount reasonably allocated to that subsidiary as its share of the consolidated tax liability, or a payment to the parent where there is no federal tax due from the consolidated group, is not a payment of federal income tax but is in the nature of a dividend paid by the subsidiary to the parent. As applied to the factual situation here, we cannot agree. The parent company (Cities Service Company) did not retain the monies received from the subsidiary (Gas Company) but, instead, distributed them, along with monies received from other profit subsidiaries, in accordance with accepted accounting procedures to those subsidiaries whose losses had been utilized in the consolidated return. Distinguishable are the cases relied on by the director, Beneficial Corporation, 18 T. C. 396, and Alliegro v. Pan American Bank of Miami (Fla. App. 1962), 136 So. 2d 656, wherein the payments by the subsidiary to the parent were retained by the parent, or set aside in a reserve, for the purpose of paying future tax liabilities and were held to constitute dividends to the parent. Under the procedure followed here, the parent company acted simply as a clearing house in collecting tax monies from those of its subsidiaries having taxable income and in refunding and paying out to its loss subsidiaries the amounts to which they were entitled by reason of their loss credits having been utilized in the consolidated return. No gain actually resulted to the parent. Just the same, a tax liability was incurred and paid by Gas Company. Its tax liability was reported and paid to the parent company, and the consolidated return reflected that tax liability in the same amount as had an individual return been filed. As already pointed out, there was no tax saving to either the parent or Gas Company as a result of Gas Company being included in the consolidated return. We hold that under the facts presented, Gas Company actually incurred and paid federal income tax in the amount of $6,367,534 and was entitled to claim said sum as a deduction in computing its net income for the year 1958 on its Kansas income tax return. The judgment of the district court is affirmed.

The opinion of the court was delivered by O’Connor, J.: In December 1957, the petitioner, William H. Jackson, was convicted by a jury of burglary in the second degree and sentenced to a term of not less than five nor more than ten years, and for his natural life under the habitual criminal act. No direct appeal was taken; however, a K. S. A. 60-1507 motion for post-conviction relief was filed February 15,1965. As a result of the ensuing proceedings, this case has been before us on two previous occasions. On its first appearance, Jackson v. State, 197 Kan. 627, 419 P. 2d 937, to which the reader is referred for the factual background of this matter, the case was remanded with directions that the action be dismissed because under our then-existing rules (Rule No. 121 [c] [2], 194 Kan. xxvii), despite an adjudication finding the challenged sentence void, the petitioner would still be confined under another sentence resulting from conviction for another offense. On the second occasion (Jackson v. State, 202 Kan. 194, 448 P. 2d 18), inasmuch as Rule No. 121 [c] [2] had in the interim been abrogated, we overruled our previous decision, recalled the mandate, and directed the district court to determine the issues presented in the motion. After appointment of counsel for petitioner, the district court, on March 11, 1969, examined the record in the case and determined that Jackson’s presence was not necessary at the hearing. Thereupon, the court made specific findings and entered judgment to the effect that the grounds advanced in the motion were without merit, except that the original sentence was invalid, and that petitioner should be returned to the district court for resentencing. Accordingly, the resentencing proceedings were held April 25, 1969, and the court found (1) a corrected and valid sentence should be imposed and (2) the evidence introduced at the time o£ the original sentence established Jackson to be the same person as “William C. Ivory” or “William Cleveland Ivory” who had been convicted of three or more prior felonies, as disclosed by various authenticated records admitted into evidence. Thereupon, the court sentenced “the said William Horace Jackson, alias William C. Ivory or William Cleveland Ivory” under the provisions of K. S. A. 21-107a and 21-109 for a term of not less than fifteen years with a maximum of life. The sentence was to run from December 24, 1957, the date of the original sentencing, concurrent with any other sentence being served by Jackson. Thereafter Jackson, through his counsel, filed a notice of appeal. Although in somewhat expanded form, the points raised appear to be basically the same as those advanced in his formal motion. At the outset we note that two trial errors are urged for our consideration—the number of peremptory challenges allowed the petitioner, and an alleged “coercive” instruction—both of which petitioner contends were violative of his constitutional rights. Generally, a 60-1507 proceeding cannot be used as a substitute for a direct appeal involving mere trial errors; but if the trial errors affect constitutional rights, they may be raised in the collateral proceeding even though they could have been raised by direct appeal, provided there were exceptional circumstances excusing the failure to appeal. (Rule No. 121 [c] [3], Rules of the Supreme Court, 201 Kan. xxxiii; Baker v. State, 204 Kan. 607, 464 P. 2d 212.) Petitioner contends there were exceptional circumstances excusing his failure to appeal in that after imposition of the original sentence his court-appointed counsel withdrew from the case, he was thereafter “effectively without counsel,” and “for some reason” an appeal was never perfected, even though the court had previously been informed an appeal was intended. We are inclined to agree. At the time of his conviction in 1957, the petitioner, being indigent, was not entitled under Kansas law to the appointment of counsel to assist him in carrying forth an appeal. In fact, any such request for counsel would have been futile. As a result, had he pursued an appeal, his efforts in effectively presenting his case would have been seriously hampered. In the absence of any showing he intentionally relinquished or abandoned his statutory right of appeal (G. S. 1949 [now K. S. A.] 62-1701), for all we know he may have been dissuaded from appealing because under our then-existing law he would have been without the aid of an attorney. In our opinion the situation here presents exceptional circumstances justifying consideration of the trial errors. (Davis v. State, 204 Kan. 816, 466 P. 2d 311; Barnes v. State, 204 Kan. 344, 461 P. 2d 782.) Whether they approach constitutional dimensions, we need not decide for, in any event, they are unmeritorious. Petitioner’s complaint that he was entitled to twelve peremptory challenges instead of six, inasmuch as he was subject to a possible sentence of life imprisonment under the habitual criminal act, was specifically answered in Mize v. State, 199 Kan. 666, 433 P. 2d 397, where we stated: “. . . the penalty for the offense charged in the indictment or information furnishes the criterion for determining the number of peremptory challenges rather than the possibility of a sentence under the habitual criminal act.” (Syl.) Also, see State v. Butler, 131 Kan. 680, 293 Pac. 756. The alleged “coercive” instruction was given after the jury had deliberated for some time and the foreman announced there was doubt-whether a verdict could be reached. In response, the trial judge proceeded- to inform the jurors that they should not be discouraged by the length of time they had been deliberating, and that they should “go back and use your best efforts, follow the instructions of the court, and decide the case if it can be decided under those instructions.” While we do not look with favor on the judge’s reference to the fact that “the county has gone to considerable expense to try this case” (see State v. Earsery, 199 Kan. 208, 428 P. 2d 794), the remarks, when assessed in their entirety, did not amount to the jury’s being coerced into making a decision it might otherwise not have made. The remarks were neither “plainly coercive” nor did they tend to be so coercive as to be prejudicial. (State v. Basker, 198 Kan. 242, 424 P. 2d 535.) Manifestly, the judge’s remarks had no immediate compelling impact, for upon resuming deliberations the jurors did not return a verdict until nearly four and one-half hours later. A careful examination of the record discloses no basis whatsoever for the suggestion that the jury was coerced into rendering its verdict because of the belated instruction. Petitioner also contends he was not fully informed by his trial counsel of the offense charged against him and the penalty therefor, as required by G. S. 1957 Supp. [now K. S. A.] 62-1304. The substance of petitioner s argument is that he was not told before trial that the penalty upon conviction might be life imprisonment. The record speaks otherwise. On September 16, 1957, petitioner was brought before the court and Jesse I. Linder was appointed as his attorney. After consulting with Mr. Linder, petitioner waived formal arraignment and entered a plea of not guilty. Just prior to the commencement of trial on December 16, 1957, the following colloquy took place in open court between Jackson and his attorney: “Defendent Jackson: I understand that if I am convicted, the habitual criminal act will be put on me but I am innocent of the charge, and I wish to go ahead with trial by jury. I wish to have a change of venue. “Mr. Linder: You know if you are convicted you will get the habitual thrown at you. “Defendant Jackson: Yes. “Mr. Linder: And if convicted you will be down there a long time. “Defendant Jackson: Yes. “Mr. Linder: And knowing that, you still want to defend? “Defendant Jackson: I want to defend.” These proceedings leave no doubt petitioner was informed an enhanced penalty of some type would be imposed if he were convicted. Whether or not a life sentence would result; of course, was something even Mr. Linder, his attorney, could not forecast with certainty. In view of the preceding colloquy, the petitioner was cognizant of the fact the judge had considerable latitude as to the sentence which ultimately might be imposed. Notwithstanding, petitioner maintained his plea of not guilty and chose to go to trial. In no way did he suffer any prejudice by the lack of information concerning the precise penalty that might be imposed. Even where the habitual criminal act is not involved, we have said that the failure of counsel to inform his client of the penalty for the offense with which he stands charged cannot be deemed prejudicial where the defendant has entered a plea of not guilty and has been afforded a trial by jury. (King v. State, 200 Kan. 461, 436 P. 2d 855.) We detect no delinquency on the part of Mr. Linder, and petitioner s contention is completely unfounded. We should mention that throughout petitioners brief there are various assertions Mr. Linder did not fairly and competently represent him at trial. These contentions are so frivolous as not to deserve extended discussion. The adequacy of an attorney’s services on behalf of an accused must always be guaged by the totality of his representation. We are satisfied from the record the petitioner has failed to sustain the burden of establishing incompetency or the ineffective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction. (Baker v. State, supra, and cases cited therein.) The sentence originally imposed for petitioner’s conviction was not less than five years nor more than ten years and a concurrent term of life imprisonment under the habitual criminal act. As previously indicated, the trial court, in disposing of the 60-1507 motion, determined the sentence was invalid and petitioner should be returned to the court for resentencing. There is no question but that the original sentence imposed was absolutely void. K. S. A. 21-107a does not create a new or separate offense based on the commission of more than one felony; it merely provides for imposition of an increased sentence for a person convicted a second and third time of any felony. (Mann v. State, 200 Kan. 422, 436 P. 2d 358; Aeby v. State, 199 Kan. 123, 427 P. 2d 453.) In this state a void sentence may be corrected by the substitution of a new and valid sentence, even though the invalid sentence is partially executed; and to accomplish such purpose, the prisoner must be remanded to the sentencing court for further proceedings. Upon resentencing, the trial court’s authority is limited to the identical facts and conditions existing at the time of the imposition of the original sentence. (State v. Fountaine, 199 Kan. 434, 430 P. 2d 235; Bridges v. State, 197 Kan. 704, 421 P. 2d 45; Roberts v. State, 197 Kan. 687, 421 P. 2d 48.) In such case the prisoner is entitled to be credited with the time he has already served on the void sentence. ( State v. Fountaine, supra.) The original sentence was imposed December 24, 1957, after a motion for new trial was presented and overruled. The state introduced three exhibits showing that one “William Cleveland Ivory” or “William C. Ivory” had previously been convicted of felonies in the Circuit Court of the City of St. Louis, Missouri, the Circuit Court of Jackson County, Missouri, and the United States District Court for the Eastern District of Missouri. When the first exhibit (Exhibit 14) was introduced, the petitioner objected, saying he had not been guilty as charged. The court queried of him as to whether he was the individual named in the document, to which he responded, “I have went under that name.” He thereafter admitted he had served five years for robbery, which was one of the felonies specifically mentioned in the exhibit, as well as the sentences enumerated in Exhibits 15 and 16. Thereupon, without further objection, the court admitted all three exhibits into evidence. At the resentencing proceedings the court made a specific finding that petitioner had been given due notice before trial that in the event of conviction, the habitual criminal act would be invoked. The court made further findings that petitioner had been convicted of three or more prior felonies, as disclosed by Exhibits 14, 15 and 16, which had been admitted into evidence at the time of original sentencing. The court further found that “William C. Ivory” or “William Cleveland Ivory” is and was the same person as the petitioner, William Horace Jackson. An allocution was given, whereupon petitioners counsel urged that the court was without jurisdiction to amend or change the original sentence and imposition of a new sentence would constitute double jeopardy. The objection was properly denied. In imposing the new sentence, the court considered no new evidence but limited itself to the same facts and conditions which existed when the original sentence was pronounced. Due process of law requires that a defendant have reasonable notice that the habitual criminal act be imposed, so that he may be heard upon the issue of his prior felony convictions. (State v. Young, 203 Kan. 296, 454 P. 2d 724; Brown v. State, 196 Kan. 236, 409 P. 2d 772; Goodwin v. State, 195 Kan. 414, 407 P. 2d 528; Browning v. Hand, 284 F. 2d 346 [10th Cir. 1960], cert. denied, 369 U. S. 821, 7 L. Ed. 2d 786, 82 S. Ct. 833.) The record clearly discloses that at the commencement of trial petitioners attorney told him about the possibility the habitual criminal act would be invoked against him. Thus, petitioner had ample time to prepare any defense he might have to any evidence of former convictions. He was also afforded a complete hearing on the matter with competent counsel, both at the time of the original sentencing and also when the new sentence was imposed. On both occasions he had full opportunity to refute the evidence of former convictions. The evidence adduced, which was not controverted but, in fact, admitted, was sufficient to establish petitioner was the same person named in the exhibits showing prior felony convictions. Petitioner is simply in no position to now complain he had inadequate notice or that there was insufficient proof he was the person named. The factual situation here is somewhat analogous to that in Goodwin v. State, supra, where we said: “Where evidence of a previous conviction of a felony was received by a sentencing court pursuant to K. S. A. 21-107a at a time when the defendant was present and in court with his attorney and, being afforded the right to allocution, made no objection and in fact admitted the previous conviction, at a time when he had previously been advised by his attorney of the provisions of the habitual criminal act and that the same might be invoked against him, it is held, upon the record presented there was no denial of constitutional rights in any failure by the prosecution to give formal prior notice of the hearing.” (Syl. ¶ 4.) Assuming petitioner had no actual notice of the state’s intention to invoke the act before the introduction of evidence of prior convictions, we believe his conduct as heretofore related was such as to constitute a waiver of the notice requirement. (See, Mann v. State, supra; Brown v. State, 198 Kan. 345, 424 P. 2d 576.) Petitioner’s additional complaint his constitutional rights were violated because he was compelled to furnish evidence against himself in respect to his prior convictions likewise cannot be upheld. (State v. Ralph, 194 Kan. 356, 399, P. 2d 548.) There was sufficient, competent evidence before the trial court to support its finding of petitioner’s prior felony convictions, and the new sentence invoking the provisions of the habitual criminal act was properly imposed. The judgment is affirmed.

The opinion of the court was delivered by Kaul, J.: This is an action brought by plaintiff-appellee (City of Wichita) for a declaratory judgment to judicially determine whether defendant-appellant (Kansas Gas and Electric Company) is legally entitled to reimbursement from the city for the expense of relocating a power transmission line from its present location on the right-of-way of the Wichita Drainage Canal to another location on the same right-of-way. The relocation of the power transmission line is made necessary by the proposed use of the right-of-way for highway purposes in the construction of Interstate Highway 35-W. Facts were stipulated by the parties and the action was submitted to the trial court for determination as a matter of law. Judgment was entered for the city and defendant (Kansas Gas and Electric Company) has appealed. In 1925, the appellee acquired by condemnation proceedings a canal right-of-way for the purpose of “widening and otherwise improving the Wichita Drainage Canal.” In 1926, the appellee, by negotiation, acquired deeds to the tracts of land located in the canal right-of-way, confirmatory of the condemnation proceedings. Since 1925 the appellee has used the right-of-way for drainage canal purposes. In addition to drainage canal usage, the public has had free access to the canal right-of-way area and has used various portions of it for pedestrian and vehicular traffic, and for recreational and other public uses. Appellant is an electric public utility operating in Sedgwick County and other counties of Kansas pursuant to authority of the State Corporation Commission of Kansas. In 1947, the appellee, by Ordinance No. 14-844, granted a franchise to appellant for the furnishing of electricity to the city and its electric consumers and “to construct, maintain and operate in present and future streets, alleys and public places in the City of Wichita, Kansas, electric light and power lines.” (Emphasis supplied.) Section 3 of the franchise ordinance provided for the manner of constructing power lines and transmission facilities. It provided in part: “. . . Whenever practicable, poles shall be placed in the alleys; or, when in the street, shall be located, whenever practicable, on the lot lines and just inside the curb line or as near the side of the curb line as same can properly be placed; and all work of construction of lines, poles, wires, cables, pipes and conduits shall be done under the direction and supervision of the governing body of the City or its duly authorized representatives, provided the governing body of the City may, in its discretion, vary any of the above provisions and requirements whenever in the judgment of such body, public necessity may require; and provided further, that in making any and all excavations and work of improvement and in exercising any rights and privileges under this franchise same shall be done in conformity to the ordinances of the city of Wichita, passed by the said City in the reasonable exercise of its police power.” Section 4 of the franchise ordinance provided that appellant would indemnify and hold the appellee harmless from any and all claims, costs, damages, expense or liability which may be occasioned by the occupancy of the streets, alleys and public grounds in the city by the properties and works of appellant. The franchise was granted until July 15, 1967, and on April 7, 1964, a subsequent Ordinance No. 27-670 was passed and approved granting a franchise until March 1, 1984. The parties stipulated that the second franchise is identical with the first (No. 14-844) in all respects pertinent to this litigation. After 1947 appellant furnished electricity to the city and consumers in the city and has used public property including streets and alleys for the location of its transmission lines pursuant to the franchise. On October 3, 1950, the appellee, acting through its governing body, approved the location of the transmission line in question. The journal of the city commission proceedings reflects the following: “Request from the Kansas Gas and Electric Company for approval of a proposed route for a 66 kv line to come into Wichita from the new Murray Gill plant to be built south of Wichita, presented. It is proposed that this new line come along the canal at some point south of Harry Street and then north along the canal terminating at Central. City Manager approved the request providing the line is built on the east side of the canal. Jump moved that the request be granted as recommended by the City Manager. Motion carried.” As to the installation of the transmission line the parties stipulated: “7. Pursuant to said resolution set out in Paragraph 6 above, KG&E did construct and install poles and electric lines along and over the Canal right-of-way, said installation being completed and in service on November 12, 1951, at a cost of $93,622. A map showing the installation route and present location thereof is attached hereto marked Exhibit ‘F’ and made a part hereof. Said transmission line and all structures thereof are located wholly upon the property included in the 1925 condemnation action heretofore mentioned.” (Emphasis supplied.) For the purpose of the construction and maintenance of a connecting link of Interstate 35-W, and in contemplation of the provisions of the Federal Aid Highway Act of 1956 and 1963, and pursuant to K. S. A. 68-401, et seq., the appellee and the State Highway Commission entered into an agreement on December 9, 1958, and a supplemental agreement on December 23, 1963. Under the terms of the agreement, the location of the Interstate 35-W right-of-way was fixed and the appellee agreed to obtain, in advance of construction, all of the right-of-way, construction easements and access rights called for by the project; and that it would move or cause to be moved or adjusted “all existing fences, structures, pole lines, pipe lines, meters, manholes, other utilities and encroachments, publicly or privately owned, which may be necessary to the construction of the project in accordance with approved plans.” In 1963, appellee instituted condemnation proceedings to acquire sufficient rights in portions of the canal right-of-way to construct the highway thereon. The appellant was not made a party to these proceedings. The construction of the highway required relocation of the appellant’s transmission line to another portion of the canal right-of-way. Appellee requested appellant to relocate the transmission line in question and appellant refused to relocate at its own expense; thus giving rise to this controversy. In general, appellant supports its position by proposing two theories. First, it claims that the action of the appellee in 1950, in response to appellant’s request for approval of a proposed route for its transmission line along the canal, amounted to a resolution from which appellant acquired rights superior and distinct from the ordinary construction easement rights, stemming from its 1947 franchise. Second, appellant claims the canal right-of-way does not fall within the concept of “alleys, streets and public properties,” specified as available for the construction of utility facilities in the franchise. Thus, appellant contends it secured by the “resolution” an interest in the right-of-way which required negotiated compensation or condemnation. Refore delving into the basic issues involved in this appeal, we shall consider the attack of appellant on the trial court’s findings of fact. Although, as we have noted, facts were stipulated, appellant challenges the findings of the trial court, based on the stipulation, on two grounds. First, it is contended the trial court’s findings conflict with the stipulation of the parties with respect to' the significance to be attached to the resolution and, second, it is argued the trial court referred to and relied upon a letter written by appellant to the appellee, which was not received in evidence. The trial court made five findings of fact. In the first of which the stipulation of the parties was made a part of the findings and incorporated by reference. The conflict claimed by appellant arises from language used by the parties in the stipulation to the effect that the transmission line was constructed “pursuant to said resolution”; whereas the import of the trial court’s findings of fact is that the line was built pursuant to the general franchise which appellant had with the city. Appellant argues that the line could not have been built pursuant to both the resolution and the franchise, and thus an irreconcilable conflict exists between the findings of the court and the stipulation by the parties. Appellant insists the trial court was bound by the language of the stipulation and thus compelled to find the line was constructed pursuant only to the resolution. Appellant attaches importance to this point by making the further contention that by virtue of the resolution an interest in the right-of-way was secured which was separate, distinct, and superior to a right devolving from the franchise. This subject will be discussed in a subsequent chapter of our opinion. The appellee meets the contention of conflict between the stipulation and findings by asserting that both the franchise and resolution were essential prerequisites before appellant could proceed. The excerpt from the journal of the city commission, which was referred to as a “Resolution” by the parties in their stipulation of facts, reflects that appellant, relying on its franchised authority to construct transmission lines in streets and public places, requested approval of a proposed route for the line in question along the canal. The journal of proceedings merely shows the city approved the request and specified the location of the line with respect to the canal. We think the procedure employed was clearly contemplated and provided for by Section 3 of the franchise enjoyed by appellant. While the franchise authorized the construction and operation of power lines in streets and public places, Section 3 specifically required that all work and construction be done under the direction and supervision of the governing body of the appellee or its duly authorized representative. We are mindful of the rule cited by appellant that a trial court cannot make findings of fact different from those agreed to by the parties. (Woolverton v. Johnson, 69 Kan. 708, 77 Pac. 559.) However, the question here is what did the parties agree. We believe appellant attaches a meaning to the words “pursuant to” as used in the stipulation beyond that contemplated by the parties at the time or by the trial court in entering its findings. The minutes of proceedings disclosed by the journal show that, whether the action taken was denominated a resolution, permission or approval is of little moment, since it merely amounted to the passing of a motion by the city commission on the request of appellant by which the proposed route along the canal was approved, provided the line was built on the east side of the canal. The contention of appellant that a letter not in evidence served as a basis for a finding of the trial court is with referencee to finding of fact No. 3 which reads: “By the letter of K.G.&E. to the City in September, 1950, K.G.&E. sought approval of the City for permission to put its own lines on the Canal Route and represented to the City that such approval was being sought as was provided in its franchise.” In this connection the journal entry of judgment reflects the following: “. . . During the course of said trial, the plaintiff submitted to the Court for its consideration a letter dated September 11, 1950, from the Division Manager of the Kansas Gas & Electric Company to Mr. M. P. Jones, City Manager of the City of Wichita, and a letter dated October 5, 1950, from Mr. C. C. Ellis, City Cleric, to Mr. Sam Brolund, Division Manager of Kansas Gas & Electric Company. These two exhibits were considered by the court but inadvertently were not marked as Exhibits. No objection to the court giving consideration to these letters was made by the defendant.” Appellant argues that if the letters referred to had probative significance they should have been included in the stipulation; that the parties had agreed in the stipulation that construction was pursuant to the resolution; that the production of the letters at oral argument before the trial court was a belated attempt to change the stipulated fact the construction was pursuant to the resolution; and that the trial court erred in considering either of the letters. The letters referred to are identified as documents, not marked as exhibits, and included in the record on appeal. The letter of September 11, 1950, addressed to the city manager, describes the proposed transmission line and points out advantages to both the appelleee and appellant of a location along the canal. From the form of the letter it may be inferred that appellant was seeking approval of the proposed location for its new transmission line. The letter of October 5, 1950, referred to in the journal entry, was the means by which the city clerk informed the division manager of appellant that the city commission had acted on the request of appellant and approved the proposed route, provided the line was built on the east side of the canal. Without determining whether a waiver resulted from failure to object to the trial court’s consideration of the letters, we do not hesitate to say the matter arising as it did could not amount to reversible error. The minutes of the city commission were before the trial court and clearly disclosed that a request was before the commission and was approved with the proviso that the line be constructed on the east side of the canal. At most, the letters could have served only as background and explanation for the evidence already before the court. Appellant complains that it was not made a party to the condemnation suit and no notice was served upon it; that as an occupant of a particularly assigned area of the canal right-of-way it was required to be made a party under the provisions of G. S. 1961 Supp. 26-202 (Repealed, Laws of 1963, Ch. 234, Sec. 103), the statute controlling condemnation procedure at the time. Appellant cites Walker v. Hutchinson City, 352 U. S. 112, 1 L. Ed. 2d 178, 77 S. Ct. 200 (reversing Walker v. City of Hutchinson, 178 Kan. 263, 284 P. 2d 1073); Ash v. Gibson, 146 Kan. 756, 74 P. 2d 136, and Cities Service Gas Co. v. Riverside Drainage Dist., 137 Kan. 410, 20 P. 2d 520. The position of appellant cannot be sustained for two reasons: First, it is readily apparent from the terms of the stipulation that the parties agreed that the rights of appellant should be determined in this declaratory judgment action and if it is finally adjudicated that appellant is entitled to reimbursement, then it was stipulated in detail in Paragraph No. 14 of the stipulation how the amount of such reimbursement should be arrived at by the parties. Thus, by reason of the stipulation, joinder of appellant in the condemnation proceeding is wholly immaterial to the issues in this action. Secondly, in Walker v. City of Hutchinson, supra, Walker owned a fee in the land in question, was made a party to the action, and was named in a publication notice under G. S. 1949, 26-202. The decision rested on the constitutionality of the notice served upon Walker. Likewise, in Cities Service Gas Co. v. Riverside Drainage Dist., supra, the Gas Company owned the land sought to be condemned, where—as here—appellant is on the canal right-of-way only through authority given it by appellee. Ash v. Gibson, supra, dealt with the proposition that the general powers delegated by statute to municipalities to exercise control over streets are, nevertheless, subject to the limitation that ordinances (load limitations of gasoline transports) must not be inconsistent with the laws of the state or in contravention of state policy declared by statute. No such issue is framed by the factual situation in the instant case. The controlling issue in this appeal is whether the resolution of October 5, 1950, established rights in the appellant, that were of a quality requiring reimbursement for the relocation of its installations. In its brief appellant candidly admits: “This defendant, in common with all other utilities in the state, recognizes as settled in this state the law that where a utility uses public streets or alleys to conduct its business, along with and as a part of the public, under a general franchise to supply utility services, the municipality may require the uncompensated relocation of those facilities in the public interest. Wichita Water Company v. City of Wichita, 98 Kan. 256, 158 P. 49. In addition, the defendant’s franchise recognizes the right to exercise police powers with respect to streets and alleys by ordinance (R. 25). The franchise is silent with respect to other places in the possession and under the control of the plaintiff. And, the law is different.” In other words, there is no dispute concerning the general rule that when a utility locates its facilities in the public way, it does so with the legal understanding that its interest in the public way is subordinate to the superior right of the city under its police power to require relocation of the facilities at the user’s own expense. (36 Am. Jur. 2d, Franchises, § 42, p. 768.) The rule is one of almost universal acceptance and is compelled by the decision of the United States Supreme Court in New Orleans Gas Co. v. Drainage Comm., 197 U. S. 453, 49 L. Ed. 831, 25 S. Ct. 471. While application of the rule in the precise context presented here has not been determined, principles established by the rule are in harmony with the holdings of this court in Water Co. v. City of Wichita, 98 Kan. 256, 158 Pac. 49, and State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772, and with language found in an extensive discussion of the police power—eminent domain dichotomy found in the opinion and concurring opinion in Ray v. State Highway Commission, 196 Kan. 13, 410 P. 2d 278, cert. den, 385 U. S. 820, 17 L. Ed. 2d 57, 87 S. Ct. 43. Appellant contends there are unique circumstances attending the facts of this case which make the ordinary rule regarding streets and alleys inapplicable. At this juncture of its brief, appellant reasserts its argument that its right-of-way was granted by special resolution and because of the further attending circumstances; the canal right-of-way not being a street or alley; the designation of a particular location (east of the canal) and the fact that the line did not interfere with use of the canal at the time, appellant claims a quality of interest was acquired not subject to expropriation under the general rule. We have already stated our view that appellant’s rights stem from its franchise, rather than the alleged resolution in our discussion of the trial court’s findings. Appellant attempts to raise the quality of its right by suggesting the resolution amounted to a grant of right-of-way under the provisions of G. S. 1949, 13-433 (Repealed, Laws of 1963, Ch. 90, Sec. 1) which reads: “To grant the right of way for the erection of telegraph, telephone or electric-light poles and wires along and upon the streets, alleys and public grounds of the city, and change, modify and regulate the same; and may require any cables or wires now or that may be hereafter strung or erected or be placed underground.” Appellant contends a right-of-way could be granted under 13-433 by means of a simple resolution. Assuming such could have been accomplished, appellant would receive no comfort. The plain language of the statute reserves in the city the authority to “change, modify and regulate.” We believe the decision in Kansas Power & Light Co. v. City of Great Rend, 172 Kan. 126, 238 P. 2d 544 (1951) entirely lays to rest the contention of appellant in this regard. Kansas Power & Light Co. was a franchised utility of the City of Great Bend in the identical relationship as appellant is to appellee. We find this statement in the opinion. “The Kansas Franchise Act (G. S. 1949, 12-2001) provides the only method by which a city may grant to a public utility such as appellant herein the right to use the public streets in carrying on its private business. . . .” (p. 131.) The Franchise Act (G. S. 1949, 12-2001, now K. S. A. 12-2001) in effect at the time of the resolution provided: “First. All contracts granting or giving any such original franchise, right, or privilege, or extending or renewing or amending any existing grant, right, privilege, or franchise, shall be made by ordinance, and not otherwise.” G. S. 1949, 13-433 and 434 (Repealed, Laws of 1963, Ch. 90, Sec. 1) authorize cities to make certain grants to public utilities but in so doing the legislature established the procedure which must be followed in making such grants by the enactment of G. S. 1949, 12-2001 (now K. S. A.). In other words, this court has stated that the franchise act provides the only method by which a utility, such as appellant, may acquire the right to use a street and the legislature declared in the franchise act that such a grant shall be by ordinance, and not otherwise. Appellant could not have acquired the right it claims by means of resolution. Appellant cites Cow Creek Valley Flood Prevention Ass’n v. City of Hutchinson, 166 Kan. 78, 200 P. 2d 299. The case does not involve the granting of a utility easement or franchise but merely holds that the city may initiate condemnation proceedings for the acquisition of a right-of-way under G. S. 1945 Supp., 12-635 (now K. S. A. 12-635), either by ordinance or resolution. The decision has no application to the issue before us. Appellant contends the canal right-of-way, not being a street or alley, its utility easement therein does not fall within the application of the rule of law which we have cited. In taking this position appellant ignores the “public places” provision in the franchise ordinance under which it was operating. The right to put its equipment “in public places” is authorized in Section 1 and “public grounds” is set out in addition to streets and alleys in the hold harmless provision set out in Section 4 of the franchise. We further note the term “public grounds” is used in addition to streets in the franchise act itself. In Kansas Power & Light Co. v. City of Great Bend, we find the following statement: “It is apparent from the mentioned franchise act that it is a restriction upon the corporate powers of a municipality to grant to utilities the right to use the streets and other public property without first obtaining a franchise as therein provided. . . .” (p. 131.) (Emphasis supplied.) We hold the canal route right-of-way in the instant case to be a “public place” or “public grounds” within the meaning of the Kansas Statutes and the Franchise Ordinance. Cases from other jurisdictions, dealing with the definitions of “public property,” “public grounds” or “public places” in harmony with our holding here are: The Steam Dredge No. 6, 222 Fed. 576; Bauer v. County of Ventura, 45 C. 2d 276, 289 P. 2d 1; Taschner v. Iowa Elec. L. & P. Co., 249 Iowa, 673, 86 N. W. 2d 915; and Detroit Edison Co. v. Detroit, 332 Mich. 348, 51 N. W. 2d 245. The appellant claims it had rights prior to the proposed highway use of the canal right-of-way and that such rights were not revocable. In support of its position appellant cites cases from other jurisdictions and Page v. Lydic, 123 Kan. 122, 254 Pac. 316, holding that a license with an interest is irrevocable. Appellant asserts that it acquired such a right here arising out of the resolution which is independent of its rights under the franchise ordinance. The cases cited by appellant on this point do not deal with rights acquired by a utility, when franchised by a municipality in the context confronting us in the instant case. Nor can appellant’s contention, that it acquired an irrevocable interest by reason of the designation of a specific location for its line, be sustained. The general rule dealing with the subject may be found in Vol. 2 Nichols’, Eminent Domain, § 5.85, commencing at page 334. A pertinent discussion of the obligation of utilities to relocate at their own expense, under circumstances similar to that existing here, may be found in Port of N. Y. Auth. v. Hackensack Water Co., 41 N. J. 90, 195 A. 2d 1. Accord with the case law dealing with the subject was indicated by this court in Water Co. v. City of Wichita, 98 Kan. 256, 158 Pac. 49. There it was stated: “The decided cases go so far as to say that a city can not bargain away its powers to subject the grantees of franchises to further regulation and control as further public necessities may require, (citing cases.)” (p. 260.) Appellant turther claims that its right is constitutionally protected. It relies on Panhandle Co. v. Highway Comm'n., 294 U. S. 613, 79 L. Ed. 1090, 55 S. Ct. 563, reh. den. 295 U. S. 768, 79 L. Ed. 1709, 55 S. Ct. 652. The case is not applicable here. Panhandle acquired a property right by securing easements from landowners and had laid its pipelines on such easements. Later the Kansas State Highway Commission acquired rights-of-way for highway improvements but did not obtain consent of Panhandle to cross or occupy its right-of-way. Panhandle denied the existence of authority in the Highway Commission to compel relocation of its pipelines at its own expense. In reversing a holding of the Kansas Supreme Court, in favor of the Highway Commission, the situation there was carefully distinguished by the United States Supreme Court from a utility easement existing in a public street or place, such as that in the instant case. In Panhandle we find the distinction stated thus: “New Orleans Gas Light Co. v. Drainage Commission, 197 U. S. 453, and similar cases concerning pipes in public streets, are not controlling. In them the pipes were laid upon agreement, actual or implied, that the owner would make reasonable changes when directed by the municipality.” (pp. 622, 623.) Obviously, a distinction is to be made between facilities in public ways and those established on private land or on easements, such as owned by Panhandle. In the instant case appellant still has its franchise and the right to use the canal route for its line. Relocation of its line does not constitute an invasion of the constitutional rights of appellant. Other cases pointing out the distinction between the instant case and Panhandle Co. v. Highway Comm'n., supra, are Port of N. Y. Awth. v. Hackensack Water Co., supra; and City of Macon v. Sou. Bell T. & T. Co., 89 Ga. App. 252, 79 S. E. 2d 265. Finally, the appellant takes issue with the conclusion of the trial court that the reimbursement policies of the federal government pursuant to certain provisions of the Policy and Procedure Memorandum of the Federal Bureau of Public Roads are of no consequence in the determination of the duty of the city to the exercise of its police powers. Here again, appellant bases its argument on the premise that it had secured a special interest which brought its claim within the reimbursement for utility relocation provision of the Policy and Procedure Memorandum. Appellant argues it is entitled to reimbursement because its interest falls within the contemplation of the term “or other property interest” of Paragraph 3a (1) of the Policy and Procedure Memorandum which reads: “Where the utility has right of occupancy in its existing location by reason of holding the fee, an easement or other property interest.” Our task is not to define the meaning of the language found in the Policy and Procedure Memorandum but only to determine the liability of appellee. As we have previously indicated, the action of the city commission in approving appellant’s request to route its line along the canal, provided it used the east bank, gave appellant no special property interest. An examination of decisions from other jurisdictions and consideration of the policy of this state, as expressed by statute and declarations of this court, which we have noted, compel our concurrence with the conclusion reached by the trial court. In Southern Bell Tel. & Tel. Co. v. Commonwealth, (Ky.), 266 S. W. 2d 308, the utility involved claimed reimbursement for relocation of facilities necessitated by the construction of a new limited access federal-aid highway. In determining the utility was not entitled to reimbursement the Court of Appeals of Kentucky said: “The judicial construction of Federal-aid legislation has consistently been that the mere fact the United States contributes to or assists states in the building of roads does not take from or limit the states in the exercise of their police power or the right to control and regulate the use of their roads. Whitney v. Fife, 270 Ky. 434, 109 S. W. 2d 832; State ex rel. Daniel, Attorney General v. John P. McNutt, 180 S. C. 19, 185 S. E. 25; and South Carolina Highway Department v. Barnwell Bros., 303 U. S. 177, 58 S. Ct. 510, 82 L. Ed 734.” (p. 311.) In Department of Hwys. v. Southwestern Elec. Pow. Co., 243 La. 563, 145 So. 2d 312, the Supreme Court of Louisiana was confronted with the utility’s contention it should not be compelled to bear the expense of relocation since the Department of Highways was entitled to recover ninety percent of all costs from the Federal Government. The Louisiana court answered the contention thus: “We find no substance in this contention. Liability of plaintiff for the costs of removal of the utilities’ facilities from the public way is not to be determined on its right under the Federal statute to obtain reimbursement of a large proportion of the costs from the United States. On the contrary, such liability is to be resolved by the laws of this state. The fact that our law may not prohibit reimbursement of the utilities has nothing to do with the plaintiffs’ liability for reimbursement. We hold that no such liability legally exists.” (p. 614.) For the reasons assigned the judgment of the trial court is affirmed.

The opinion of the court was delivered by Harman, C.: This is an action by a husband for medical expenses incurred and nursing service rendered because of injuries sustained by his wife in an automobile collision with defendant. Trial to the court upon stipulated issues resulted in a judgment for plaintiff from which defendant has appealed. Essentially defendant’s contentions upon appeal are encompassed within two general points. The first is the action was not timely filed, being barred by the two year statute of limitations applicable to torts (K. S. A. 60-513 [4]). A chronological statement of the case is as follows: On December 22, 1962, plaintiff was driving an automobile on State Avenue in Kansas City, Kansas, when his vehicle was struck in the rear by one driven by defendant. Plaintiff’s wife, a passenger in his car, was injured in the collision. Plaintiff and his wife have at all times been residents of Missouri; defendant is a Kansas resident but has worked in Missouri. On July 3, 1963, plaintiff’s wife filed suit against defendant in the circuit court of Jackson county, Missouri, securing personal service of summons upon him in that county. In that action plaintiff’s wife sought damages for personal injuries, loss of wages and impairment of earning capacity. She did not seek reimbursement for medical expenses. Defendant caused the case to be removed to the United States district court for the western district of Missouri. On November 14, 1964, and before the Missouri case had been tried, plantiff and plaintiff’s wife initiated this action by filing their petition in the district court of Wyandotte county, Kansas. The caption of this petition named as plaintiffs both plaintiff and plaintiff’s wife. The initial paragraph was as follows: “Comes now the plaintiff Louise B. Kelley and for her claim for loss of marital services and medical expenses for the benefit of her husband Harold W. Kelley, pursuant to Sec. 23-205, GSKan. 1949, states: . . .” Next followed allegations of the marriage, the collision, injuries sustained by plaintiff’s wife, her medical care and impairment of her ability to perform domestic duties. The final paragraph of said petition contained an allegation that because of the wife’s injuries “the plaintiff Harold W. Kelley . . . has expended or incurred liability for medical, surgical and hospital treatment expenses in excess of $4,500.” The prayer was for judgment for the benefit of Harold W. Kelley. On February 3, 1965, trial to a jury in the Missouri action resulted in a judgment for plaintiff’s wife for $15,000. On November 7, 1966, with leave of court, plaintiff and his wife filed in the Wyandotte county action an amended petition in two counts. Count one recited it was brought by plaintiff’s wife for the benefit of her husband for loss of marital services in the amount of $6,500, pursuant to K. S. A. 23-205, and further recited pertinent facts essential to recovery. Count two stated it was brought by plaintiff Harold W. Kelley for reimbursement of expenses paid or incurred for medical, surgical and hospital treatment and for the rendition of nursing care for his wife Louise, in the total sum of $8,500, and it recited further pertinent facts. Prior to trial count one was dismissed at the request of plaintiff’s wife so that Harold W. Kelley was the only remaining plaintiff. It should be borne in mind throughout we are now concerned only with medical expense, not loss of marital services. Trial to the court upon count two resulted in a judgment for plaintiff for $8,500. At trial defendant pleaded the statute of limitations and upon appeal he reasserts this defense. We think this point is not well taken. The collision occurred December 22, 1962. The initial petition was filed November 14, 1964, well within the prescribed limitation. We have already recited its essentials. The plaintiff husband was in fact specifically joined and named as a plaintiff in the caption of that petition and in the body as well. Although the petition recited the action was brought in the name of plaintiff’s wife for plaintiff’s benefit pursuant to K. S. A. 23-205, the factual basis for the claim for medical expenses was specifically stated—that plaintiff had paid and incurred liability for his wife’s medical expenses resulting from the collision with defendant. Applying the long established rule that a court looks through form to substance in measuring the sufficiency of allegations of a pleading we have no difficulty in concluding the initial petition sufficiently advised defendant of the facts upon which the claim for relief advanced by plaintiff arose, particularly under our new relaxed form of notice pleading which requires only a short and plain statement of the claim showing that the pleader is entitled to relief (K. S. A. 60-208 [a]). That a more precise pleading could have been designed is apparent from the filing later of count two of the amended petition. However, the amendment did not state a new claim for relief but merely identified more perfectly the proper party plaintiff. Amendment in such a situation has always been permissible (see Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444), although here it was not necessary. If there were any doubt about the matter it would have to be resolved against defendant in view of K. S. A. 60-215 (a) and (c) which permits amendments of pleadings with leave of court and provides that whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. Defendant next contends the recovery by a wife of a judgment for personal injuries as the result of an automobile collision bars the husband from later recovery from the same defendant for the wife’s medical expense due to the collision. Defendant argues plaintiff’s wife alone is the proper party to bring an action for her medical expense and that she could have included in her Missouri action such a claim and her failure to do so operates as a waiver of the claim and bars her husband from later asserting it. Defendant relies generally on the Kansas married woman’s act (K. S. A. Chap. 23, Art. 2) and the Kansas philosophy of avoiding multiplicity of actions. Although there is diversity of opinion in other jurisdictions as to whether a husband may recover for medical expenses due to an injury to his wife (see anno. 21 A. L. R. 3d 1113) it has long been recognized in Kansas that he may do so by reason of his obligation of support owing to the wife (see Railway Co. v. Pavey, 57 Kan. 521, 46 Pac. 969). K. S. A. 23-205, being a part of our married woman’s act which is relied upon by defendant in opposition to plaintiff’s right to recover, provides as follows: “That where, through the wrong of another, a married woman shall sustain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based upon the loss or impairment of her ability to perform services in the household and in the discharge of her domestic duties, shall be for the benefit of her husband so far as he shall be entitled thereto.” In Shattuck v. Pickwick Stages Corp., 135 Kan. 602, 11 P. 2d 996, a husband recovered for cash outlay for nursing hire and also for his own services as a nurse and attendant for his wife who had been injured in an auto collision with the defendant. On appeal 23-205 was raised as a defense to recovery. This court stated: “The statute does not apply. Plaintiff recovered nothing on account of his wife’s inability to perform household duties and domestic service. He undertook to perform the function of a nurse, and recovered for his services in that capacity, valued as nurse hire—something not covered by the so-called emancipation act modifying the common law.” (p. 605.) Defendant contends the Shattuck ruling was by implication overruled by Hoffman v. Dautel, 192 Kan. 406, 388 P. 2d 615. We cannot agree. The Hoffman case dealt only with loss or impairment of rights of consortium, holding that a wife had no cause of action for such loss resulting from a direct injury to her husband because of the negligent act of another. Defendant also relies on Foster v. Kopp, 151 Kan. 650, 100 P. 2d 660, for his contention the medical expenses of a wife are not recoverable to a husband from a tortfeasor. Although that brief opinion mentions medical bills it is apparent from the rationale stated that the actual ruling is the limited one stated in paragraph 2 of the syllabus—that by reason of 23-205 suit for loss of the wife’s marital services is to be brought by the wife. The decision cannot be considered authority for the proposition asserted. Accordingly we reiterate that medical expenses due to a tortious injury to the wife are recoverable in an action brought by the husband. Although we have little clear-cut authority on the subject it has long been common practice in Kansas, without any question raised, for a married woman to include in her general tort suit a claim for items of medical and hospital expense due to her injury. We do not here intend disapproval of the practice, under proper circumstances, so long as double recovery is precluded. We are concerned, however, with creating an impression of blanket approval of the practice of two suits being brought in a situation where all claims could be adjudicated in one action. The question presented is novel in that the item under consideration— medical expense—is one for which recovery may be had by either the husband or the wife while other items of damage arising from tortious injury to the wife are recoverable by her alone. Courts should always seek to do justice between the litigants before them, and in answering the question, instead of attempting to prescribe any broad rule applicable to all situations, we look to the particular circumstances of this case as disclosed by the record. Following the collision plaintiff’s wife was hospitalized six times over a period of about two and one half years and was treated by ten physicians. She underwent surgery twice. The out-of-pocket medical and hospital expenses totaled $7,098.75. One of her periods of hospitalization occurred after trial of the Missouri action, during which time she underwent extensive surgery. Plaintiff performed about two years of personal nursing care for his wife after the Missouri trial. Although she had worked prior to the collision she had not returned to work at tihe time of the Kansas trial and had been bedfast much of the time. No mention of the amounts of medical expense was made in the Missouri trial and no reimbursement was sought in that action. The record does not clearly show why medical expenses were made the subject of the Kansas action instead of being included in the earlier Missouri action. We cannot tell how susceptible of proof her future medical expenses were at the time of the Missouri action, just how speculative they may have been, or whether there was any effort to consolidate the two actions so as to prevent multiplicity of trials. The record does reflect some possible misapprehension upon plaintiff’s part about the application and scope of our K. S. A. 23-205, already mentioned. There is no indication the filing of two suits by the Kelleys was a deliberate effort at vexation or harassment of the defendant in forcing him to defend two suits, or that there was any withholding in order to have two chances at recovery. The Kansas case was actually submitted upon a stipulation of facts and issues and at the trial the slight additional evidence offered by the plaintiff was not inconsistent therewith. The stipulation included an agreement the automobile collision was the proximate result of defendant’s negligence. The trial court found that, including personal nursing care, plaintiff was entitled to recover more than $8,500 but in the stipulation the total judgment was limited to $8,500. Under all the foregoing circumstances, we cannot say plaintiff should be precluded from bringing this action by reason of his wife’s failure to include medical expenses in her Missouri suit. The judgment appealed from is affirmed. approved by the court.

In a letter received June 7, 2004, by the Clerk of the Appellate Courts, respondent Kimberley K. Kellogg, of Overland Park, an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered her license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281). At the time the respondent surrendered her license, there were seventeen complaints pending. Fifteen of the complaints were investigated and there was a finding of probable cause in each case. Two cases were still under investigation. The complaints contained allegations of lack of diligence, failure to communicate with clients, charging unreasonable fees, improperly withdrawing from representation of clients, and failure to cooperate in the disciplinary process. Additionally, the respondent was found guilty of a felony in a trial in the District Court of Johnson County, Kansas and has been indefinitely suspended by the Supreme Court of the State of Kansas since July 12, 2002. This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred. It Is Therefore Ordered that Kimberley K. Kellogg be and she is hereby disbarred from the practice of law in Kansas and her license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Kimberley K. Kellogg from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs therein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286). Dated this 9th day of June, 2004.

The opinion was delivered by LUCKERT, J.: A jury convicted Nathenial Hurt of first-degree premeditated murder and aggravated assault arising out of the shooting death of his former girlfriend. The trial court sentenced Hurt to a hard 50 life sentence for the first-degree murder conviction. Hurt appeals his convictions and sentence, arguing: (1) he was denied a fair trial because of statements made by the prosecutor during closing arguments, (2) the trial court erred in imposing an unconstitutional hard 50 sentence, and (3) the evidence was not sufficient to support his conviction for aggravated assault. On October 4, 2002, Hurt shot and killed Nicole Palma in front of her home. According to Hurt, he and Palma were involved in an exclusive relationship, and when Hurt discovered that Palma and Hurt’s “cousin,” Marvell Hill, were engaging in a secret sexual relationship, Hurt “just lost it.” While Hurt contended the killing was committed in the heat of passion and was merely voluntary manslaughter, the State charged Hurt with premeditated first-degree murder. The State introduced evidence that Hurt and Palma had a troubled relationship. On September 20, 2002, Palma reported a domestic violence incident involving Hurt. Palma reported that she had gone to the hospital accompanied by Hurt. When Hurt learned that Palma had a sexually transmitted disease, she and Hurt argued and Hurt had to be escorted out of the hospital by security. Several hours later, as Palma was driving home from die hospital, Hurt called her on her cell phone and said, “You’re gonna regret this, you’re gonna make me do something that I’m gonna regret.” As Palma neared her home, she saw Hurt running toward her vehicle. Hurt threw a rock or brick through the driver’s side window breaking the window and the windshield. On October 3, 2002, a detective called Palma to verify some of the information in the report. The detective also spoke with Hurt by telephone and explained to him there was a warrant for his arrest based on the incident. The next morning, Hurt called his employer at 7:30 a.m. and said he would not be coming to work because he had “some personal business to attend to.” Hurt sounded upset and said he might need to come in and talk later. The same morning, Marvell Hill was visiting Palma at her home. Hill testified Hurt was “like family” to him and he called Hurt his cousin even though they were not related by blood. Hill admitted that he and Palma had been involved in a sexual relationship. Although Hurt had previously asked both Hill and Palma whether anything was going on between them, both had denied any relationship. Hill testified that, on the morning of the shooting, Palma received several telephone calls from Hurt who was “talking crazy.” Hill asked Palma for a ride to work and they walked outside and got into Palma’s Suburban. Before Palma could start the Suburban, Hurt ran up to the vehicle and began banging on her door. When Palma opened the door, Hurt pulled her out and placed her between the door and the floor of the vehicle with his knee on her chest. Hurt pulled a gun from his waistband, pointed it at Palma, and said, “You fucking my cousin.” Hurt then pointed the gun at Hill who said, “You gonna do this over a girl, over a chick.” As Hurt began dragging Palma around the back of the Suburban to the passenger side, Hill got out and maneuvered around the front of the vehicle to the driver’s side. When Hurt again pointed the gun at Hill, Hill began running in a zigzag pattern. Hill heard gunshots, one of which hit dirt that splashed into his face. As he was running, Hill turned back and saw Hurt shoot Palma while she knelt on the ground. Several of Palma’s neighbors witnessed the shooting. One neighbor saw a man run away from the scene and get into a maroon car that was parked around the comer. Several of the neighbors testified that they were familiar with Hurt and that he usually drove a white Chevy to Palma’s house, parking it either on the street or in the driveway. Hurt testified in his own defense. He claimed that, at the time of the shooting, he and Palma were involved in an exclusive relationship. According to Hurt, on the morning of the shooting, he had called Palma and asked hér to drive him to Mississippi to visit his children. Palma agreed, but her vehicle needed some maintenance before making the trip. Hurt drove his white Chevy to Palma’s house, planning to take the Suburban for repairs, and took his gun with him because he and Palma were planning to travel. When Hurt called Palma on her cell phone to tell her he was on his way, she claimed she was not at home. However, as Hurt was driving by, he saw Palma’s Suburban in her driveway so he stopped and walked up to her house. As he approached, Hurt saw Palma standing in the doorway with Hill; she appeared to be wearing a T-shirt and nothing else. Hill had previously testified Palma was wearing boxer shorts that were so short they might not have been visible under her T-shirt. Hurt testified, “[A]fter seeing that, I just lost it. It was like they was messing around and it hurted. You know, it was like my heart was just ripped out. And I just don’t remember if I did anything to her or him. Only thing I remember was going home.” Hurt was charged with premeditated first-degree murder, aggravated assault, and criminal possession of a firearm. The State later amended the complaint to include attempted first-degree murder as an alternative to the aggravated assault charge. Hurt pled guilty to the firearm charge prior to trial. The jury convicted Hurt of premeditated first-degree murder and aggravated assault. The trial court sentenced Hurt to a hard 50 term for the first-degree murder based upon the aggravating factors that Hurt had a prior aggravated battery conviction and that he had caused a risk of death to more than one person. The court also sentenced Hurt to 24 months’ imprisonment for the aggravated assault conviction and 8 months’ imprisonment for the firearm conviction, ordering both of those sentences to run consecutive to one another and the hard 50 term. Was Hurt Denied a Fair Trial by Prosecutorial Misconduct During Closing Argument? Hurt isolates several statements in the prosecutor’s closing argument which he argues misstated the law, denied him a fair trial, and require reversal of his conviction for first-degree murder. Hurt argues that the prosecutor misled the jury to believe that Hurt’s intent at the time of the shooting was irrelevant if Hurt had premeditated the killing at any point in the past. He also argues that in another portion of the closing argument the prosecutor made several misstatements of law regarding the manner and order in which the jury should consider the lesser included homicide offenses. To establish reversible error based on prosecutorial misconduct, a defendant must show the alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). The framework for our review of the prosecutor’s statements was recently reiterated and clarified in State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004): “A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal.” Although the first prong of this analysis has been phrased as relating to a prosecutor’s comments “in discussing the evidence,” this two-step analysis has been applied when considering a prosecutor’s statements regarding the law and statements about the application of the law to evidence. See, e.g., Tosh, 278 Kan. at 90-91; State v. Hebert, 277 Kan. 61, 82, 82 P.3d 470 (2004). Thus, we must first consider whether, as Hurt argues, the prosecutor misstated the law in discussing intent and the order and manner of the jury’s consideration of lesser included offenses. In the portion of the argument regarding Hurt’s intent with which Hurt now takes issue, the prosecutor stated: “If I call in sick tomorrow ’cause I wanna go watch a ballgame or do something and I wake up tomorrow morning, in fact I am sick, I really do feel bad, I can say, Well, you know, I had something, I didn’t' — really was gonna lie to my boss but turned out I really was sick. Well, doesn’t really change the fact that I did have it in my heart and my mind to he to my boss. The fact that I really did get sick later doesn’t obviate that. “The defendant was going over there to Ml her. The fact that Marvell Hill happened to be there doesn’t change anything. It was just icing on the cake for him. But he was going over there to kill her. And for him now to say, well, yeah, okay, but Marvell was there, it changes everything. It changes nothing. His intent that morning was to kill her. It’s clear from all the facts in the case. Every act— action he took that day, that morning, and in the weeks preceding tells you that.” Hurt contends that the prosecutor misstated the law by implying that his intent at the moment of the killing was irrelevant, contrary to Kansas law as stated in State v. McClanahan, 254 Kan. 104, 114, 865 P.2d 1021 (1993) (to establish heat of passion, defendant’s emotional state must exist at time of act). Essentially, Hurt’s argument is that, even if he went to Palma’s house with the premeditated intent to kill her, when he arrived there he found Palma with Hill, flew into a rage, and was sufficiently provoked to kill Palma on impulse. According to Hurt, those intervening facts negated any earlier premeditated intent and reduced the crime to voluntary manslaughter. Hurt contends that the prosecutor s argument assumed that Hurt would have carried out the shooting even absent provocation, negates any possibility of abandoned intent, and thereby implies that, no matter what Hurt’s actual intent at the time of the shooting, if he had ever had the premeditated intent to kill Palma, he was guilty of first-degree murder. Hurt’s argument, which is based on the concept of temporal concurrence, or the idea that the intent must exist at the same time as the act, is technically correct. See 1 LaFave, Substantive Criminal Law § 6.3(a), p. 453 (2d ed. 2003). If the killing of Palma was actuated by heat of passion and not Hurt’s premeditated intent to kill, then Hurt is guilty only of voluntary manslaughter. However, Hurt’s interpretation of the prosecutor’s statement is too broad. The State persuasively argues that the prosecutor’s statements were fair comment on the evidence. According to the State, the prosecutor was merely arguing that the jury should find that evidence of premeditation outweighed evidence of provocation. Contrary to Hurt’s suggestion that the prosecutor implied that Hurt’s intent at the time he killed Palma was irrelevant, the prosecutor’s argument was that “[h]is intent that morning was to kill her.” A more reasonable interpretation of the prosecutor’s statements is that Hurt was simply using Hill’s presence as an excuse to carry out his previously formed intent to kill Palma. In that context, the prosecutor’s statements were fair comment on the evidence presented and were proper. In the other portion of the closing argument about which Hurt now complains, the prosecutor stated: “If you’re not convinced — first of all, if you are convinced that he’s guilty of first-degree premeditated murder, check the guilty box, and you’re done with that count. ’Cause, if you’re convinced that he’s guilty of that highest count, you need not go down any further to consider second-degree or voluntary. “It’s only if you’re not convinced, all 12 of ya, that he’s guilty of premeditated, and then you move your way down and ask yourself, Well, certainly, he intended to but maybe it wasn’t premeditated. Again, read that definition of premeditation to yourselves and ask yourself, how can there [have] been any dispute that this was premeditated. “Finally, if you’re not convinced that this was a premeditated or even an intentional second-degree murder, then you’re required to consider voluntary manslaughter.” Hurt contends these comments are inconsistent with Kansas law, citing State v. Korbel, 231 Kan. 657, 647 P.2d 1301 (1982). In Korbel, the defendant challenged the method of considering lesser included offenses provided for by the pattern jury instructions (PIK). In affirming the PIK method, the court stated: “The words ‘if you cannot agree’ when used to preface an instruction on a lesser charge are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge. The words ‘if you cannot agree’ presuppose less than a unanimous decision and no inference arises that an acquittal of the greater charge is required before considering the lesser.” 231 Kan. at 661. Hurt’s argument on this point simply lacks merit. The prosecutor’s statement, “if you’re not convinced,” is not significantly different from the previously approved language, “if you cannot agree.” Additionally, at oral argument, defense counsel stressed that the phrase “all 12 of ya” was improper in the context of the prosecutor’s statement “[i]t’s only if you’re not convinced, all 12 of ya, that he’s guilty of premeditated, and then you move your way down. ...” Hurt contends this statement by the prosecutor improperly requires the jury to reach a unanimous acquittal on first-degree murder before the jury could consider the lesser included offenses of intentional second-degree murder and involuntary manslaughter. K.S.A. 21-3109 states: “When there is a reasonable doubt as to which of two or more degrees of an offense [the defendant] is guilty, [the defendant] may be convicted of the lowest degree only.” Thus, it would be improper to state that all 12 jurors had to agree that there was a reasonable doubt before the jury could consider a lesser included offense. It is not clear that this was the meaning conveyed by the prosecutor’s statement. However, the remark is ambiguous and at least potentially subject to this interpretation. Hurt also cites State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003). In Graham, the defendant was charged with attempted first-degree murder and the jury was instructed on attempted second-degree murder and attempted voluntary manslaughter as lesser included offenses. The jury convicted the defendant of attempted second-degree murder. However, the jury was improperly instructed that it should only consider the lesser included offense of attempted voluntary manslaughter if it did not find the defendant guilty of attempted second-degree murder. This court held: “Where there is evidence of mitigating circumstances of sudden quarrel or heat of passion justifying an instruction on voluntary manslaughter in a case where voluntary manslaughter is a lesser included offense, the failure to instruct the jury to consider such circumstances, consistent with PIK Crim. 3d 56.05B, in its determination of whether the defendant is guilty of second-degree murder, is always error and in most cases presents a case of clear error.” 275 Kan. 831, Syl. ¶ 4. Hurt claims it was contrary to Graham to inform the jury it could not even consider his heat of passion defense unless it did not agree he was guilty of premeditated first-degree murder. That was not the holding of Graham. In the context of voluntary manslaughter and second-degree murder, the issue of ordering the jury’s deliberation arises because an intentional homicide is reduced from murder to voluntary manslaughter if it is committed upon a sudden quarrel or in the heat of passion. State v. Winters, 276 Kan. 34, 40, 72 P.3d 564 (2003). The same is not true of premeditated first-degree murder. Premeditation and heat of passion are mutually exclusive concepts. In other words, if a murder was premeditated, it cannot have been the result of heat of passion. See State v. Abu-Fakher, 274 Kan. 584, 609, 56 P.3d 166 (2002) (finding of premeditation is inapposite to mitigating circumstances of heat of passion and sudden quarrel). Thus, there is no need for the jury to consider evidence of heat of passion at the same time it considers evidence of premeditation. However, the prosecutor also included intentional second-degree murder, stating: “Finally, if you’re not convinced that this was a premeditated or even an intentional second-degree murder, then you’re required to consider voluntary manslaughter.” Under Graham, the inclusion of intentional second-degree murder in this sentence was improper since second-degree murder and voluntary manslaughter require simultaneous deliberation when there is ev idence of mitigating circumstances of sudden quarrel or heat of passion justifying an instruction on voluntary manslaughter. Therefore, while all of the statements about which Hurt complains were not improper, it was improper for the prosecutor to state that voluntary manslaughter should be considered only if the jury was not convinced there was an intentional second-degree murder. Accepting Hurt’s interpretation of the remark “[i]t’s only if you’re not convinced, all 12 of ya,” it was also improper for the prosecutor to state that there must be a unanimous acquittal before considering the lesser included offenses. Therefore, we must consider the second step of the analysis applied to allegations of pros-ecutorial misconduct and determine whether the remarks constitute harmless or prejudicial error. In Tosh, we explained this analysis. “The Court of Appeals quoted the following passage from State v. Jones, 273 Kan. 756, 782, 47 P.3d 783, cert. denied 537 U.S. 980 (2002): ‘The appellate court considers three factors to determine whether a new trial should be granted because of prosecutorial misconduct: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill wiE on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. [Citation omitted.]’ “Obviously, the first of these three factors merely repeats in part the statement of the ultimate second step of the analysis: “Whether the misconduct was so gross and flagrant that it denied the defendant a fair trial.’ Thus, the second step of the analysis is essentiaUy directed to whether the misconduct is so prejudicial that it denies the defendant a fair trial. This analysis requires a particularized harmlessness inquiry utilizing the three factors set out in Jones. ‘With this clarification of the two-step analysis, then the question of whether the prosecutor’s behavior was gross and flagrant can occupy a sensible and appropriate place in our analysis as the first of three factors to be considered in the harmlessness inquiry. None of these three factors is individually controlling. Further, it is important that the character of the three factors ensures that our harmlessness inquiry in the unique setting of prosecutorial misconduct wiE be both practical and punitive, as it should be. Prosecutorial misconduct not only injects error into a criminal trial. It violates the prosecutor’s ethical obligations. But we recognize that there are degrees of seriousness in such misbehavior, and our appellate courts must have the freedom to consider those degrees and their likely effects as they decide whether the misbehavior before them in a given case merits reversal and remand for new trial.” 278 Kan. at 93-94. Thus, we first consider whether the prosecutor s comments were so gross and flagrant as to deny Hurt a fair trial. The statement that “[i]t’s only if you’re not convinced, all 12 of ya, that he’s guilty of premeditated, and then you move your way down” is correct if intended as a statement that all 12 jurors must agree to convict of first-degree murder and, in light of the statements which preceded the offending language, it appears this is the context in which the prosecutor intended the comment. As we have noted, even when read in a transcript, the statements are difficult to follow and the improprieties about which Hurt complains are less than clear. The mistake appears to be one of twisted syntax. The second improper statement regarding the order of consideration of second-degree murder and voluntary manslaughter is clearer, but was not a point of emphasis by the prosecutor. Thus, we conclude that neither statement was gross or flagrant. With regard to the second factor of whether there was ill will on the part of the prosecutor, there was no indication that the prosecutor purposefully misstated the law or in any other way acted with ill will. Finally, we consider whether it is likely that the misconduct would have weight in the minds of the juiy. In making this inquiry, “the prosecutor’s misstatement of the law must be considered in the context of the jury instructions given by the trial court.” State v. Henry, 273 Kan. 608, 620, 44 P.3d 466 (2002); see Hebert, 277 Kan. at 82-85 (summarizing other cases). In this case, the jury instructions correctly informed the jury on the method of considering lesser included offenses. The jury was properly instructed consistent with PIK Crim. 3d 56.05(B) that it should consider second-degree murder and voluntary manslaughter at the same time. The jury was instructed on the charged offense of premeditated first-degree murder and the lesser included offenses of intentional second-degree murder and voluntary manslaughter. The second-degree murder instruction stated: “If you do not agree that Mr. Hurt is guilty of premeditated murder, you should then consider the lesser included offense of murder in the second degree.” The voluntary manslaughter instruction stated: “In determining whether Mr. Hurt is guilty of murder in the second degree, you should also consider the lesser included offense of voluntary manslaughter.” The jury was also instructed consistent with PIK Crim. 3d 68.09 that if there was a reasonable doubt as to which of two or more offenses Hurt was guilty, it could convict him of tire lesser included offense only. Additionally, the fact that the jury convicted Hurt of premeditated first-degree murder shows that any error in the prosecutor’s statement was harmless. See State v. Horn, 278 Kan. 24, Syl. ¶ 8, 91 P.3d 517 (2004). In Horn, this court held that when a lesser included offense is the subject of instruction, and the jury convicts of the greater offense, any error resulting from the failure to give an instruction on another still lesser included offense is not reversible error. By analogy, where a lesser included offense was the subject of an instruction (second-degree murder), and the jury convicted Hurt of the greater offense (first-degree murder), any error in the ordering of still lesser included offense instructions (voluntary manslaughter) was also harmless error. Consequently, we hold that any error in the prosecutor’s arguments was harmless under both K.S.A. 60-261 and under the federal harmless error rule declared in Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). See Tosh, 278 Kan. at 96-97. Is Kansas’ Hard 50 Sentencing Scheme Unconsititutional Because it Allows a Defendant’s Sentence to be Increased Beyond the Maximum Penalty Based Upon Facts Not Proven to a Jury Beyond a Reasonable Doubt? Hurt argues that Kansas’ hard 50 sentencing scheme is unconstitutional because it does not afford criminal defendants their right to have a jury determine beyond a reasonable doubt all facts which might increase the maximum penalty for first-degree murder. Hurt’s challenge to the hard 50 sentencing scheme is based on the holding of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), that facts which increase the penalty for a crime beyond the prescribed statutory maximum must be proved to a jury beyond a reasonable doubt. This court addressed a similar challenge to the hard 40 sentencing scheme in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). The Conley court held that imposition of a hard 40 sentence does not increase a defendant’s maximum sentence of imprisonment for life. Rather, it limits the lower end of the sentence, which is consistent with McMillan v. Pennsylvania, 477 U.S. 79, 88-89, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (facts that do not increase defendant’s punishment beyond that authorized by the underlying statute need not be proven to a jury beyond a reasonable doubt). The court concluded that because the hard 40 sentence did not increase the length of Conley’s life sentence, and because the Apprendi court had refused to overturn McMillan, the 40-year mandatory minimum sentence did not violate the rule announced in Apprendi. Conley, 270 Kan. at 30-35; see also Harris v. United States, 536 U.S. 545, 567, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (“Within the range authorized by tire jury’s verdict, however, the political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges make certain factual findings.”) This court relied on Conley in holding that the hard 50 sentencing scheme is constitutional in State v. Douglas, 274 Kan. 96, 111-12, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003). The court reaffirmed that ruling in State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003), and Hebert, 277 Kan. 61. Hurt has cited no new authority postdating those cases which might convince this court to alter its position. Recently, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), in which a defendant pled guilty to kidnapping his estranged wife, a crime which carried a maximum prison sentence of 53 months under a Washington state statute. The sentencing judge imposed a 90-month sentence pursuant to another Washington statute which allowed the judge to impose an “exceptional sentence” upon finding that the defendant acted with “deliberate cruelty.” 542 U.S. at 300. The Blakely court held the judge’s imposition of a 90-month sentence violated the defendant’s right to a juxy trial under the holding of Apprendi. 542 U.S. at 305. In essence, Blakely validates this court’s decision in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), holding that Kansas’ sentencing scheme, which allowed the imposition of upward dur-ational departures based on judicial findings of fact, violated a defendant’s constitutional rights to due process and a jury trial. However, Blakely does not affect this court’s analysis in Conley that exposing a defendant to a later parole eligibility based upon a judge’s factual finding only limits the lower end of the sentence and is not the equivalent of exposing a defendant to an increased maximum penalty. See Conley, 270 Kan. at 33-34. The court in Blakely distinguished McMillan, the decision upon which the analysis in Conley is based. Thus, we reject Hurt’s argument that Conley was wrongly decided. Was the Evidence Sufficient to Support Hurt’s Conviction of Aggravated Assault Where the Victim Testified on Cross-Examination That He was not Scared or Fearful of Injury? Finally, Hurt contends that there was insufficient evidence to support his conviction for aggravated assault where the victim, Marvell Hill, testified under cross-examination that he was not scared or fearful of injury. Aggravated assault is defined as “intentionally placing another person in reasonable apprehension of immediate bodily harm.” K.S.A. 21-3408. Hurt contends the State failed to show Hill was in reasonable apprehension of immediate bodily harm; therefore, his conviction for aggravated assault must be reversed. When a criminal defendant challenges the sufficiency of the evidence, “the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). During direct examination, Hill testified that he ran away from Hurt after Hurt pointed the gun at him. When Hurt started firing shots, all Hill could think about was maneuvering and running. When asked if he was scared, Hill responded, “Yeah, somebody shooting at you.” Hill also said, “If I would have stood there, I would have been dead.” However, upon cross-examination, the following exchange took place: “Q. Mr. Hill, you were running away from this scene; isn’t that right? “A. Yes. “Q. You were scared; right? . “A. No. “Q. You weren’t scared? “A. Nope. “Q. You were in no fear that you might be hurt? “A. Nope.” Viewing Hill’s testimony as a whole, and especially his testimony on direct that he was scared and ran when Hurt pointed the gun at him, a rational factfinder could easily find that Hurt placed Hill in reasonable apprehension of immediate bodily harm. Hurt’s conviction of aggravated assault stands. Affirmed.

Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent John C. King, of Plano, Texas, an attorney admitted to die practice of law in Kansas. Disciplinary Panel’s Findings of Fact and Conclusions of Law A disciplinary panel of the Kansas Board for the Discipline of Attorneys conducted formal hearings, as required by Kansas Supreme Court Rule 211 (2003 Kan. Ct. R. Annot. 264), and considered evidence regarding King’s conduct in handling matters for Randy and Ida Ford and Nga Nguyen. In its report, the panel concluded there was clear and convincing evidence King had violated Kansas Rules of Professional Conduct (KRPC) 1.15 (2003 Kan. Ct. R. Annot. 395) (safekeeping property); KRPC 8.4 (2003 Kan. Ct. R. Annot. 464) (misconduct); and Kansas Supreme Court Rule 207(b) (2003 Kan. Ct. R. Annot. 250). The panel unanimously recommended disbarment. A summary of the panel’s findings of fact and conclusions of law follows. Randy and Ida Ford (the Fords) retained King to represent them befoi'e the Internal Revenue Service (IRS). Although the fee agreement was not reduced to writing, the Fords agreed to pay King an advance fee of $5,000. Following King’s directions, on June 18, 1992, the Fords paid King with two checks. King deposited one check into his Intrust Bank trust account and the other into his operating account. The Fords also paid King $20,000 to be held in trust to pay the Fords’ tax liability. At no time did the Fords agree that King or any attorney associated with King could use the $20,000 held in trust for attorney fees. Subsequently, the Fords sent King additional funds which were deposited in King’s trust account. King made some payments from the trust account on the Fords’ behalf to various creditors. After King was unable to reach a compromise with the IRS, the Fords requested that King account for the money held in trust and return the balance. King failed to do so. On July 1, 1992, King sent the Fords a statement of services for legal fees and expenses totaling $1,292.75. This was the last billing statement King sent the Fords. On October 4, 1999, Ida Ford filed a complaint with the Disciplinary Administrator’s office. The Disciplinary Administrator referred the case to the Southwest Kansas Ethics and Grievance Committee for investigation. An investigator was appointed who repeatedly requested a meeting with King and an accounting. King never met with the investigator and, although King provided copies of checks paid on the Fords’ behalf, he never provided an accounting of the moneys paid by the Fords. At the time King filed his answer to the disciplinary complaint, he attached a billing summary regarding services rendered to the Fords. According to that billing summary, from February 10, 1993, through May 11, 1999, the Fords incurred attorney fees and expenses in the amount of $15,964.98. The disciplinary panel noted that King frequently issued checks to his law firm in round amounts (i.e., $1,000; $1,500; or $2,500), allegedly to cover the attorney fees. When the disciplinary panel compared the transfers from King’s trust account to his operating account with the billing summary submitted on the Fords’ matter, the amounts did not match. Without determining whether King was entitled to use the money held in trust for his attorneys fees or whether King did in fact earn the fees described in the billing statements, the disciplinary panel found that King continues to owe the Fords at least $5,811.02 plus interest. The disciplinary panel noted that “it appears that the Respondent transferred fees from his trust account to his operating account when he needed funds to operate his law office.” The second complaint against King is similar. Nga Nguyen retained King to represent her in connection with an IRS matter. Again, the fee agreement was not reduced to writing, and King requested two checks, each in the amount of $2,250, as an advance fee. Nguyen complied, and King deposited one check into his operating account and one check into his Intrust Bank trust account. Nguyen also paid King $7,500 to be held in trust to be paid to the IRS to “stop the interest from running.” Subsequently, Nguyen paid King additional fees. Nguyen paid King’s firm a total of $8,192.50 for attorney fees. According to the billing summaries, King’s firm earned $7,242.50 in legal fees. Thus, King owes Nguyen $950 in unearned fees. As of the date of the disciplinary panel report, King had not refunded the unearned fees to Nguyen. After reaching an agreement with the IRS, Nguyen asked about the status of her $7,500 in trust. Eventually King acknowledged that Nguyen’s money had not been paid to the IRS and should be in his trust account. However, he did not refund Nguyen’s $7,500 until the first day of the disciplinary hearing on January 24, 2003. When King refunded Nguyen’s $7,500, he did not pay any interest to Nguyen. Combining the amounts owed to the Fords and Nguyen, King should have had at least $14,261.02 in his Intrust Bank trust account from August 1997 when Nguyen provided the $7,500. However, at five different times, including a period in excess of 1 year from January 14,1999, until the account was closed, King failed to maintain sufficient funds in his Intrust Bank trust account to cover the amounts held in trust for the Fords and Nguyen. Additionally, according to King’s records, King was holding amounts in trust for other clients. Therefore, the trust account balance should have exceeded the amounts held for the Fords and Nguyen. The disciplinary panel, during the first day of hearing this matter, requested that King provide copies of four checks drawn on his Intrust Bank trust account. At the conclusion of the proceedings that day, King requested additional time to provide the disciplinary panel with a complete reconciliation of the Intrust Bank trust account. He stated unequivocally that 60 days would be sufficient. Based upon King’s assurance that 60 days would be sufficient, the disciplinary panel scheduled an additional hearing for April 24, 2003. The disciplinary panel ordered King to provide copies of four checks and a complete reconciliation of the Intrust Bank trust account to the Disciplinary Administrator and each member of the disciplinary panel by March 24, 2003. King failed to comply with the disciplinary panel’s order. The Disciplinary Administrator requested that the matter be rescheduled and that King again be ordered to provide certain items. The disciplinary panel granted the Disciplinary Administrator s request to continue the hearing, and on April 28, 2003, the disciplinary panel issued a written order compelling King to produce certain documents. Additionally, the Disciplinary Administrator served counsel for King with a subpoena requiring King to provide certain documents. King failed to comply with the disciplinary panel’s order to produce documents or the subpoena. On July 25,2003, the disciplinary hearing resumed. At the outset of the hearing, King provided a reconciliation of the Intrust Bank trust account. During the hearing, King produced additional documents. However, he testified he could not locate other documents. At the conclusion of the hearing, the disciplinary panel ordered King to provide some original checks and a complete copy of his Legacy Bank trust account records. King did not provide the documents as ordered. After the deadline had passed, the disciplinary panel’s research attorney contacted counsel for King inquiring whether King would be providing any documentation as ordered by the disciplinary panel. The research attorney obtained counsel’s permission to contact King directly. The research attorney spoke by telephone to King that same day. King acknowledged that he had not complied with the disciplinary panel’s order, but he stated to the research attorney that he would send the information ordered to be produced by overnight mail. However, King did not do so. As of the date of the disciplinary panel’s report, King had not provided the Legacy Bank trust account records or the requested checks. In its final report, the disciplinary panel concluded that King violated KRPC 1.15(a) and KRPC 1.15(d)(1), which require law yers to deposit unearned fees into an appropriate trust account. While King deposited some checks into his Intrust Bank trust account on behalf of the Fords and Nguyen, the disciplinary panel concluded that King violated KRPC 1.15(a) and KRPC 1.15(d)(1) when he failed to deposit other checks received from both clients for advance fees into his trust account. The disciplinary panel also found a violation of KRPC 1.15(b), which requires attorneys to account for property held in trust upon request. Beginning in 1995, the Fords began requesting that King account for the funds held in trust. Until King filed his answer on January 17, 2003, no accounting had been provided regarding the funds on deposit on behalf of the Fords. The disciplinary panel found that King never provided the Fords with a copy of the billing summary. The disciplinary panel also found a violation of KRPC 1.15(d)(2)(iv), which requires that attorneys promptly return to a client funds to which the client is entitled. Beginning in September 1999, Nguyen requested the return of the $7,500 that King was holding in trust. King did not return Nguyen s $7,500 until January 24,2003. Nguyen was likewise entitled to receive the $950 advance fee paid but not earned by King. The disciplinary panel noted that, as of the date of its final report, King had not returned to Nguyen the unearned $950 advance fee. The disciplinary panel also found that in 1995 and again in 1999 the Fords had requested that King return the funds held in trust for them. According to King’s own testimony, the Fords are entitled to receive at least $6,280.03. As of the date of the disciplinary panel report, King had not returned any funds to the Fords. Because King failed to prompdy return the funds which the Fords and Nguyen are entitled to receive, the disciplinary panel concluded that as to each client, King violated KRPC 1.15(d)(2)(iv). The disciplinary panel also concluded that King’s pattern of transferring funds from his Intrust Bank trust account to his operating account when he was not entitled to receive them was a violation of KRPC 8.4(c), which prohibits an attorney from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.” Finally, the disciplinary panel concluded that King violated Supreme Court Rule 207(b), which requires an attorney, licensed to practice law in the State of Kansas, to cooperate in disciplinary investigations. Specifically, the disciplinary panel found that King failed to comply with the requests made by the disciplinary investigator. The disciplinary panel also concluded that King violated Supreme Court Rule 207(b) when he repeatedly failed to comply with the orders of the disciplinary panel and when he failed to comply with the subpoena issued by the Disciplinaiy Administrator s office. Disciplinary Panel’s Recommendation Regarding Discipline In making its recommendation, the disciplinaiy panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991), specifically Standard 3. The first factor to be considered is the nature of the duty violated. In this case, the disciplinary panel found that King violated his duty to his clients to safeguard their property and account for moneys held in trust. King also violated his duty to the legal profession to cooperate in the disciplinary investigation. The panel concluded that King intentionally violated these duties. Another factor to be considered under ABA Standard 3 is the potential or actual injury caused by the lawyer’s misconduct. The disciplinaiy panel found: “Between June, 1992, and August, 1992, the Fords provided the Respondent with $29,540.00. The Fords’ tax matter remains unresolved. The Respondent converted the money to which they are entitled. The injury to the Fords is significant. The Respondent also caused significant injury to Mrs. Nguyen. The Respondent retained $7,500.00 of Mrs. Nguyen’s money from September, 1999, until January, 2003, without any adequate explanation. In the meantime, Mrs. Nguyen had to pay the IRS the compromised amount agreed to without access to her money held in trust. Finally, the legal profession has suffered significant injury as a result of the Respondent’s misconduct. The legal profession is tarnished whenever a lawyer converts clients’ funds.” Additionally, the disciplinary panel found nine aggravating circumstances which are considerations or factors that may justify an increase in the degree of discipline to be imposed. First, the panel noted that King had been previously disciplined on three occasions. On June 16,1994, in B5672, the Disciplinaiy Administrator’s office informally admonished King for having violated KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) (diligence) and KRPC 1.4 (2003 Kan. Ct. R. Annot. 349) (communication). On December 15, 1998, in A6204, the Disciplinary Administrator’s office informally admonished King for having violated KRPC 8.4 (2003 Kan. Ct. R. Annot. 464) (misconduct). On April 20, 2001, in DA7818, the Disciplinary Administrator’s office informally admonished King for having violated KRPC 1.15 (2003 Kan. Ct. R. Annot. 395) (safekeeping property), and KRPC 1.16 (2003 Kan. Ct. R. Annot. 407) (declining or terminating representation). Second, the disciplinary panel concluded that King’s misconduct was motivated by dishonesty and selfishness. Third, the disciplinary panel found that King engaged in a pattern of misconduct in this case. The panel noted that during the second portion of the hearing King testified that he continues to owe numerous clients substantial amounts of money that he had previously held in trust. Specifically, the disciplinary panel noted that King’s trust account records show that King owes 23 other clients $15,124.09 and has for a number of years. No evidence was submitted that showed that King made any attempt to reconcile his trust accounts and refund moneys held when he closed his Kansas practice. The disciplinary panel concluded that a fourth aggravating factor was that King committed multiple offenses. Fifth, the panel found that King engaged in a bad faith obstruction of the disciplinary proceeding by repeatedly and intentionally failing to comply with the requests of the investigating attorneys and the orders of the disciplinary panel. Sixth, the disciplinary panel concluded that King submitted false or deceptive evidence during the disciplinary process in that his testimony was inconsistent, deceptive, and misleading. Other aggravating factors noted by the disciplinary panel were Nguyen’s vulnerability to the misconduct due to her difficulty in communicating in English and King’s indifference to making restitution. Finally, the disciplinary panel cited King’s substantial experience in the practice of law, noting he was admitted to the Kansas bar in 1988 and was also admitted to the practice of law in the states of Illinois, New York, and Virginia. The disciplinary panel also noted mitigating factors of personal or emotional problems which contributed to the violations and King’s health problems. However, the disciplinary panel noted that King’s medical problems occurred after the Fords and Nguyen requested refunds of their moneys. While the medical problems may have contributed to the difficulty in responding to the requests of the Disciplinary Administrator and the attorney assigned to investigate the complaints, the disciplinary panel concluded that King had sufficient time to properly cooperate. After examining ABA Standards 4.11 and 4.12, the disciplinary panel adopted the Disciplinary Administrator’s requested discipline and recommended disbarment, noting: “This case involves two separate and distinct forms of misconduct. First, the Respondent converted funds belonging to the Fords and Mrs. Nguyen. The Respondent had the benefit of their money for years. The Respondent has made no attempt to return any of the Fords’ money and continues to retain unearned fees paid by Mrs. Nguyen. Second, the Respondent failed to cooperate with the disciplinary investigator, failed to comply with a lawful subpoena issued by the Disciplinary Administrator, and completely ignored numerous orders of the Hearing Panel during the pendency of the disciplinary case. Standing alone, the conversion of funds probably warrants disbarment. However, when the conversion is coupled with the intentional failure to cooperate with the disciplinary process, the ultimate sanction of disbarment is clearly warranted.” Analysis of Disciplinary Panel’s Conclusions In disciplinary matters, this court must examine the evidence and determine the judgment to be entered. In doing so, the findings of fact, conclusions of law, and,recommendations made by the disciplinary panel are advisory only, but they will be given the same dignity as a special verdict by a jury or the findings of a trial court. The disciplinary panel’s report will be adopted where amply sustained by the evidence. See In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993); In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987); State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975); State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971). In this case, the disciplinary panel’s conclusions are not disputed. King did not file exceptions to the final hearing report or a brief in this matter and is deemed to have conceded that the factual findings stated in the hearing report are supported by the evidence. Supreme Court Rule 212(d) and (e)(4) (2003 Kan. Ct. R. Annot. 270). We conclude the findings entered by the panel are established by the clear and convincing evidence presented, and we adopt the conclusions of the panel that King violated the following provisions: KRPC 1.15 (2003 Kan. Ct. R. Annot. 395); KRPC 8.4 (2003 Kan. Ct. R. Annot. 464); and Supreme Court Rule 207(b) (2003 Kan. Ct. R. Annot. 250). Further, King, having been notified of these proceedings, failed to respond or appear before this court. This failure to appear constitutes a violation of Supreme Court Rule 212(d). Therefore, the court unanimously concludes that the disciplinary panel’s recommended discipline of disbarment is warranted. It Is Therefore Ordered that the respondent, John C. King, be and he is hereby disbarred from the practice of law in the State of Kansas in accordance with Supreme Court Rule 203(a)(1) (2003 Kan. Ct. R. Annot. 226) for his violations of the Kansas Rules of Professional Conduct and Supreme Court Rules. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of John C. King from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that John C. King comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286). It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.

The opinion of the court was delivered by Gernon, J.: David W. Trammell appeals his convictions for three counts of aggravated assault and one count each of aggravated robbery and theft. Trammell claims that the trial court improperly instructed the jury regarding eyewitness identifications and erroneously admitted the eyewitness identifications and a gun into evidence. Trammell also argues that the trial court should have granted his motion for a new trial based on newly discovered evidence. Finally, Trammell claims that he was denied his right to a fair trial by cumulative errors. The events leading up to Trammel’s convictions began on June 22,1999, when 17-year-old John Loper observed someone driving the tow truck owned by the Amoco station where Loper was working. Loper asked his manager who was driving the truck. Unable to clearly identify the driver, Loper’s manager told Loper to go find out. By that time, the tow truck had left the Amoco station’s parking lot. Loper jumped in a rental car owned by the Amoco station and pursued the tow truck to find out who was driving it. The tow truck driver realized Loper was following him after Loper had pursued him for several blocks. In an attempt to stop Loper’s pursuit, the tow truck driver put the truck in reverse and drove towards Loper’s car. Loper put his car in reverse to avoid being hit. The tow truck then proceeded forward, and Loper resumed his pursuit. Realizing that Loper continued to follow him, the tow truck driver did a U-turn through a yard and drove straight toward Loper’s car. Loper again threw his car into reverse to elude the tow truck. Loper was unable to get away, and his car was rammed by the tow truck head on. Afterwards, the tow truck backed up and drove past Loper, who decided not to continue his pursuit. Loper immediately returned to the Amoco station and reported the stolen tow truck to Overland Park police, giving a brief description of the thief. Four days later, Loper saw the thief again near the Amoco station parking lot and reported it to the Overland Park police. On July 5, 1999, John Kase heard chains rattling outside his apartment and looked out to see an unknown person with the Amoco tow truck hooking tow chains up to his Corvette. Kase immediately went out to confront the tow truck driver, who informed Kase that he was repossessing the car. When Kase advised the driver that there were no liens on the car, the driver told Kase that he had a gun and Kase should return to his apartment. Kase cautiously remained near his car trying to figure out how to unhitch his car from the tow truck. The driver then went to the truck cab and retrieved a gun from the seat. Kase ran towards his apartment and began hollering at his neighbor to come out because someone was stealing Kase’s car. Kase’s neighbor and a friend who had been in Kase’s apartment came outside and observed the robber. Another of Kase’s friends, John Eglich, rode up on his motorcycle as the tow truck was driving off, dragging Kase’s car behind it. Kase hollered at Eglich to go after the tow truck. Eglich chased the tow truck and Kase’s car for about a half of a block before the tow truck stopped. Eglich rode up beside the driver’s window of the tow truck and asked the driver what he was doing. The driver told Eglich he was repossessing the car. When Eglich told him there were no liens on the car, the driver pointed a gun at Eglich, told him to get away from the truck, and drove off. Eglich pursued the tow truck for a short distance but was unable to catch it. Before the tow truck could get very far, the car became unhitched from the truck. The driver then drove back to Kase’s apartment complex and nearly ran over Kase’s neighbor, who was attempting to stop the truck, before leaving the area. Kase’s car was heavily damaged, and he reported the incident to the Merriam police. A few days later, police conducting surveillance at an Econo Lodge motel near Kase’s apartment observed the stolen Amoco tow truck. A man named Scott Cross was arrested at the Econo Lodge motel, and he told the police that Trammell had stolen the tow truck. Based on the information from Cross, the Overland Park police prepared a photographic lineup including Trammell’s photograph for Loper to view. The Merriam police also prepared a photographic lineup including Trammell’s photograph for Kase and Eglich to view. Although Loper viewed a different photographic lineup independent of Kase and Eglich, all three of the victims selected Trammell’s photograph. Trammell was arrested by police in Raytown, Missouri, on July 10, 1999. Trammell had a gun in his possession at the time of his arrest. On July 25, 2001, a jury convicted Trammell of three counts of aggravated assault, one count of theft, and one count of aggravated robbery. The Kansas Court of Appeals affirmed Trammell’s con victions. State v. Trammell, No. 88,722, unpublished opinion dated September 19, 2003. This court granted Trammell’s petition for review. For his first claim of error, Trammell argues that the trial court erroneously instructed the jury regarding eyewitness identification. Trammell relies on this court’s recent opinion in State v. Hunt, 275 Kan. 811, 69 P.3d 571 (2003), for the proposition that PIK Crim. 3d 52.20 incorrectly states the law in Kansas. The Hunt decision was filed after Trammell’s trial. Nevertheless, Trammell argues that the Hunt decision should be applied retroactively to his case. Trammell did not raise an issue regarding the use of PIK Crim. 3d 52.20 before the trial court. An issue raised for the first time on appeal is not properly before the appellate court. However, appellate courts will consider constitutional issues raised for the first time on appeal if the issue falls within the three recognized exceptions. The threshold question is whether consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003). Trammell cannot demonstrate that review of the trial court’s instructions on eyewitness identification will serve the ends of justice or prevent the denial of fundamental rights. Consequently, the issue is not properly before this court. Furthermore, Trammell’s argument is based on an incorrect interpretation of Hunt. In Hunt, we considered whether a one-person show-up identification should have been excluded because it was unnecessarily suggestive and unreliable. 275 Kan. at 812-13, 815. We adopted the factors set forth by the Utah Supreme Court in State v. Ramirez, 817 P.2d 774, 781 (Utah 1991), for evaluating the reliability of an identification. Trammell argues that Hunt discarded the previous analysis under the factors in Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), when it adopted the Ramirez factors. Specifically, Trammell claims that the Ramirez factors do not include a consideration of the witness’ certainty of the identification, and that including that factor in PIK Crim. 3d 52.20 is error. Trammell’s argument is flawed. In Hunt, this court did not discard the prior analysis under Biggers. Instead, we enhanced the reliability analysis by adding the Ramirez factors to the Biggers factors, stating: “We accept the Ramirez model; however, our acceptance should not be considered as a rejection of the Biggers model but, rather, as a refinement in the analysis.” 275 Kan. at 818. Although Hunt suggested that a cautionary instruction be given for eyewitness identification, it did not address the validity of PIK Crim. 3d 52.20. 275 Kan. at 818. Accordingly, Hunt does not support Trammell’s claim that PIK Crim. 3d 52.20 is erroneous. Next, Trammell argues that the trial court should have excluded the eyewitness identifications. He claims the in-court and out-of-court identifications led to a substantial likelihood of irreparable misidentification in violation of his right to due process. An appellate court’s review of an eyewitness identification is a due process determination that involves a mixed question of law and fact. This court applies a substantial competent evidence standard when reviewing the factual underpinnings of a trial court’s decision to admit or suppress an eyewitness identification. However, the ultimate legal decision drawn from those facts is reviewed using a de novo standard. State v. Love, 267 Kan. 600, 603, 986 P.2d 358 (1999). The court utilizes a two-step procedure for analyzing whether an eyewitness identification should be excluded. First, the court must determine whether the procedure used for making the identification was impermissibly suggestive. If so, the court moves to the second step in the analysis and considers whether the imper-missibly suggestive procedure led to a substantial likelihood of mis-identification. Under the second step, the court must consider the totality of the circumstances surrounding the identification as outlined by the following Hunt factors: 1. The witness’ opportunity to view the criminal at the time of the crime; 2. The witness’ degree of attention. 3. The accuracy of the witness’ prior description. 4. The level of certainty demonstrated by the witness at the confrontation. 5. The length of time between the crime and the confrontation. 6. The witness’ capacity to observe the event, including his or her mental and physical acuity. 7. Whether the witness’ identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion. 8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. Hunt, 275 Kan. at 815-18. Trammell first attacks the out-of-court identifications, claiming that they were impermissibly suggestive. He raises two arguments. First, Trammell claims that Loper’s photographic lineup was presumptively suggestive because the original lineup was unavailable at trial. Although a photocopy of the lineup was admitted, Tram-mell argues that the photocopy was insufficient for the court to review the suggestibility of the lineup. Second, Trammell claims that both of the photographic lineups were impermissibly suggestive because Cross, the person Trammell claims was the perpetrator, was not included in either of the lineups. Both of these arguments raise issues of first impression. The Court of Appeals decided both issues against Trammell. State v. Trammell, No. 88,722, unpublished opinion filed September 19, 2003. Trammell relies on several cases from other jurisdictions to support his proposition that the failure to produce the original photographic lineup at trial is presumptively suggestive. However, all of Trammell’s cases can be distinguished from this case because those courts did not have a photocopy of the lineup to review. Other courts do not consider photographic lineups to be presumptively suggestive when the original lineup is unavailable. In State v. Lopez, 886 P.2d 1105, 1111 (Utah 1994), the Utah Supreme Court concluded that the loss of the photographic lineup did not prevent review of the suggestiveness because there was a detailed description of the lineup in the record. In Edmonds v. McGinnis, 11 F. Supp. 2d 427, 436 (S.D. N.Y. 1998), the federal district court refused to find the photographic lineup presumptively prejudicial without a showing of bad faith on the part of the prosecution. The Edmonds court also relied on the fact that the photographic lineup was lost after trial and after the trial court had determined it to be nonsuggestive. 11 F. Supp. 2d at 436. Although Kansas appellate courts have not specifically considered whether a photographic lineup is presumptively suggestive if the original photos are not preserved for the record, we have considered whether the State erred when it failed to take photographs of an in-person lineup. See State v. Slansky, 239 Kan. 450, 455-56, 720 P.2d 1054 (1986). In Slansky, this court noted that it would have been a better practice to photograph the in-person lineup but concluded that the jury had sufficient evidence to determine whether the lineup identification was conducted properly. 239 Kan. at 455-56. In this case, the photocopy of the photographic lineup and the testimony provides the court with sufficient evidence to determine whether the lineup was unnecessarily suggestive. Although the black and white photocopy is not as clear as the original color photographs, both the trial court and the appellate courts can clearly ascertain facial features and compare the individuals’ characteristics. In addition, Kase and Loper testified that the individuals in the lineup looked similar to each other. Because there is evidence in the record for a court to review, there is no reason to find that the photographic lineup shown to Loper was presumptively suggestive because the original photo array was lost. For his second argument regarding the admission of the out-of-court identifications, Trammell claims that the failure to include Cross’ picture malees the photographic lineups impermissibly suggestive. Trammell claims that there is a strong inference that Cross committed the robberies because the tow truck was found where Cross was arrested. Trammell complains that the police specifically excluded Cross’ photo from the lineup because Cross informed the police that Trammell committed the crimes. Trammell further argues that he has been misidentified because Cross looks just like him. Trammell, however, offers no authority for his proposition that the exclusion of Cross’ photograph requires a finding that the photographic lineup was impermissibly suggestive. A lineup or photo array identification procedure is impermissibly suggestive if the officers conducting the proceeding give the witness information that highlights one of the individuals before the selection is made or make suggestions about who the witness should select. See, e.g., State v. Mack, 255 Kan. 21, 28, 871 P.2d 1265 (1994); State v. Ponds, 227 Kan. 627, 630, 608 P.2d 946 (1980); State v. Holloman, 17 Kan. App. 2d 279, 284, 837 P.2d 826, rev. denied 251 Kan. 940 (1992). A photographic lineup is imper-missibly suggestive if the photographs do not depict individuals who generally fit within the witness’ description or if there is a gross disparity between the defendant’s photograph and the remaining photographs or a distinctive indication of the defendant’s photograph. State v. Love, 267 Kan. at 604-05; State v. Ponds, 227 Kan. at 630. The law enforcement officers preparing the photographic lineups in this case selected individuals whose appearances were similar to Trammell’s and in accordance with the witnesses’ descriptions. One of the officers testified that he did not include Cross’ photograph in the lineup because he did not think Cross looked like Trammell. The photographic lineups did not give the names of the individuals depicted, and the law enforcement officers did not suggest who the witnesses should choose. In fact, the officers informed the witnesses that the person may not be in the lineup. Two of the witnesses, Kase and Eglich, selected Trammell’s picture instantly. Likewise, Loper was veiy positive in his identification, giving the officer no reason to show him any other photographs. Contrary to Trammell’s claim, the witnesses did not think Cross looked just like Trammell. Although Kase thought Cross looked similar to Trammell, he distinguished Cross’ hair color and testified that Cross and Trammell did not look alike. Kase also described Cross differently than the other individuals in the photographic lineup, noting that Cross had brown hair but the men in the lineup all had blonde hair, like Trammell. Loper testified that the photograph of Cross looked similar to Trammell’s but distinguished between the two, stating that Cross was not the person driving the tow truck. The law enforcement officers preparing and conducting the photographic lineups in this case followed Kansas law. Although Cross looked similar to Trammell, the witnesses easily distinguished between the two and consistently identified Trammell as the robber. There is no reason to presume that the photographic lineups were impermissibly suggestive because Cross’ picture was not included. The Minnesota Supreme Court reached the same conclusion in State v. Lindsey, 632 N.W.2d 652 (Minn. 2001). In Lindsey, the defendant was convicted of murder and attempted murder. The defendant claimed that one of his companions committed the murder and that the photographic lineups shown to eyewitnesses were impermissibly suggestive because the companion’s photograph was not included in the lineup. The Lindsey court found the argument to be without merit, stating that “[njothing in the lineup or the procedures used suggests Lindsey was singled out for identification.” 632 N.W.2d at 665. Furthermore, Trammell cannot complain that he was unable to fully develop his defense that Cross committed the robberies. At the suppression hearing and at trial, Trammell extensively cross-examined the State’s identification witnesses and the law enforcement officers that prepared the photographic lineups regarding Cross. In addition, Trammell admitted a photograph of Cross for the witnesses to compare with Trammell’s appearance. Trammell argued his theory that Cross framed him to the jury. The adequacy of the evidence to prove Trammell’s defense was a question for the jury to decide. Next, Trammell argues that the in-court identifications should have been excluded. A reliable in-court identification will stand on its own regardless of whether it was preceded by a deficient pretrial identification. State v. Edwards, 264 Kan. 177, 189, 955 P.2d 1276 (1998). To determine whether an identification is rehable, this court applies the eight factors set forth in Hunt, 275 Kan. at 817-18. John Loper 1. The witness’ opportunity to view the criminal at the time of the crime. Loper testified that he viewed the robber from the rear, from the side, and face to face. Loper observed the side of the robber’s face for approximately 15 seconds while the robber was backing the tow truck towards him and the front of the robber’s face for another approximately 20 seconds while the robber drove straight at Loper and rammed Loper’s car. Loper also observed the robber as he backed the tow truck off of Loper’s car and drove past him on the passenger’s side. 2. The witness’ degree of attention. When the tow truck was driving toward him, Loper was alternating between looking forward and looking over his shoulder as he drove in reverse. Loper testified that the tow truck drove toward him for approximately 35 to 45 seconds, and he estimated that he was actually looking at the robber for about 20 seconds of that time. Although he admitted being excited, Loper testified that he could remember what the robber looked like, stating: “[T]hat image is just kind of in my mind.” 3. The accuracy of the witness’ prior description. Loper described the robber to the police as a white male, approximately 30 years old, with blonde hair. Trammell was 32 years old at the time of the tow truck robbery. At the preliminary hearing, Loper described the robber as thin-built, with dirty brown or dirty blondish hair, a mustache, and a more rounded face. At trial, Loper described the robber as having “scraggly, dirty, blonde hair, not a real thin face but not a real chubby face,” with a “[kjind of a slender nose” and baggy eyes with dark circles under them. Each of these descriptions is consistent with the description given by Kase and Eglich. Contrary to Trammell’s claim, Loper’s trial description is not a description of Trammell’s photograph from the photographic lineup. In the photographic lineup, Trammell’s eyes appear swollen, not baggy with dark circles under them. 4. The level of certainty demonstrated by the witness at the confrontation. At the preliminary hearing, Loper testified that he was 95 percent certain of his identification. The law enforcement officer conducting the photographic lineup with Loper testified that he did not believe there was a need to do further lineups because Loper was very positive in his identification, giving the officer no room for doubt. 5. The length of time between the crime and the confrontation. Loper first identified Trammell in a photographic lineup 20 days after the tow truck was stolen. However, Loper recognized the robber in the parking lot adjacent to the Amoco station 4 days after the robbery and reported it to police. 6. The witness’ capacity to observe the event, including his or her mental and physical acuity. Loper was 17 years old when the crime occurred. His full attention was directed at following the tow truck as his supervisor had instructed. Loper’s sole purpose in following the tow truck was to determine who was driving it, so he was intent on seeing the driver’s face. He continued to pursue the tow truck even after the robber backed towards him. Loper observed the robber during daylight hours, and his vision was unobstructed as the robber drove the tow truck head on into Loper’s car. Although Loper admitted to being nervous and excited, he did not indicate that his nervousness or excitement interfered with his ability to remember the robber’s face. In fact, Loper testified that he formed an image in his mind of the robber’s face when the tow truck was driving toward him. 7. Whether the witness’s identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion. Loper’s description remained consistent. On cross-examination at trial, Trammell attempted to demonstrate an inconsistency in Loper’s description. Loper testified that the robber had an average build but had previously testified at the preliminary hearing that the robber had a thin build. However, Loper also testified that he could not see the robber’s body because he was seated in the tow truck. Other than the robber’s body size, Trammell has failed to point to any other inconsistencies between Loper’s initial description and his in-court identifications. 8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. This factor requires the court to consider whether the event was ordinary and whether the witness and the criminal were of the same race. In this case, the event was far from ordinary. Loper was chasing a tow truck because he believed it was being stolen and had been instructed to find out who was driving the truck. Loper s sole purpose was to determine who was driving the tow truck and why it left the Amoco station. The record does not establish Loper’s race, so the court cannot make a determination based on that detail. Based on an analysis of the Hunt factors, Loper s identification was rehable. The trial court did not err when it admitted Loper s in-court identification into evidence. John Kase 1. The witness’ opportunity to view the criminal at the time of the crime. Kase was within 2-3 feet of the robber while he was stealing the car. He had a short conversation with the robber concerning the car and looked directly at the robber’s face before the robber pulled a gun out of the truck to scare Kase back to his apartment. 2. The witness’ degree of attention. Kase was concerned that his Corvette was being stolen. His attention was focused on confronting the robber. Although he looked briefly at his car to see how to unhook the tow truck chains, he testified that he was face to face with the robber. All of Kase’s attention was focused on the robber and preventing his car from being stolen. 3. The accuracy of the witness’ prior description. Kase initially described the robber as being a white male with short blond hair about 5 feet-5 inches tall and skinny. At the preliminary hearing and at trial, Trammell attempted to impeach Kase’s description by pointing out that Trammell is taller than 5 feet-5 inches. Based on his observation of Trammell in the courtroom, Kase testified that Trammell appeared to be 6 feet tall but explained the height discrepancy by stating that he was slightly elevated on a drainage ditch when he encountered the robber. According to Trammell’s records, he is 5 feet-9 inches tall. With the exception of the robbers height, Kase’s description remained consistent throughout the proceedings. 4. The level of certainty demonstrated by the witness at the confrontation. Kase immediately selected Trammell during the photographic lineup. He also identified him without hesitation at the preliminary hearing more than 2 years after the robbery and at trial. When confronted with Cross’ picture on cross-examination at the suppression hearing, Kase readily distinguished between Cross and Trammell, stating that Cross’ picture does not look like Trammell. 5. The length of time between the crime and the confrontation. Kase initially chose Trammell’s picture in a photographic lineup 7 days after his car was stolen. His identification at the preliminary hearing occurred nearly 1 and Vz years after the robbery, and his identification at trial occurred 2 years after the robbery. 6. The witness’ capacity to observe the event, including his or her mental and physical acuity. Kase’s observation of the car thief was unimpeded by physical or mental obstructions. The car was stolen at about 5 p.m. while it was still daylight. Kase was within 2-3 feet of the car thief and stood face to face with him. Although Kase testified that his adrenaline was pumping, Trammell fails to show any impairment to Kase’s mental or physical acuity. 7. Whether the witness’ identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion. Trammell argues that Kase’s identification was contaminatedby newspaper accounts naming Trammell as the robber. This argument, however, overlooks the fact that Kase was not privy to the names of the individuals in the photographic lineup when he identified Trammell as the robber, and Trammell’s picture was not included in the newspaper article. 8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. The theft of Kase’s car was not an everyday occurrence. Kase admitted that the sound of chains drew his attention and the ensuing conflict increased his adrenaline. Kase witnessed the theft of his car, not someone else’s, so he was very alert and fully attentive to what was happening. As a result, he was able to perceive, remember, and relate the events correctly. There is nothing in the record to establish Kase’s race, so the court cannot consider the impact of a cross-racial identification. When considered in light of the totality of the circumstances, Kase’s in-court identification is reliable. The trial court did not err by admitting Kase’s identification of Trammell into evidence. John Eglich 1. The witness’ opportunity to view the criminal at the time of the crime. Eglich first observed the car thief when he drove his motorcycle up alongside the tow truck. Eglich observed the car thief face to face from a distance of approximately 1 foot when the car thief turned and looked at Eglich. Eglich had a brief conversation with the car thief about the status of the car before the thief pointed a gun at Eglich and instructed him to get away from the truck. The conversation lasted about 30 or 45 seconds. 2. The witness’ degree of attention. Eglich was chasing the car thief with his motorcycle. His attention was focused on stopping the car thief. Even after the car thief threatened Eglich with a gun, Eglich continued to follow the truck until it went up a grass hill and through a drive-through at a fast food restaurant. 3. The accuracy of the witness’ prior description. Eglich did not give the police a description of the car thief immediately after the robbery. The first time Eglich provided information to identify the car thief occurred when Eglich was shown the photographic lineup. However, Eglich was able to distinguish between Trammell’s appearance at the preliminary hearing and his appearance at the time of the robbery, stating: “When I seen the lineup with him in it, he was all beat up and I mean black eyes and stuff. . . . When I seen him the day of the incident, his eyes were bloodshot and it looked like he hadn’t slept in about four days the day I seen him, so like I said, he looks a little more clean-cut now. “His hair is combed now and his eyes aren’t' — don’t look like he’s been on drugs for five or six days, but it looks — the rest looks the same.” 4. The level of certainty demonstrated by the witness at tire confrontation. Eglich instantly selected Trammell’s photograph from the photographic lineup without hesitation. Likewise, Eglich testified that he would recognize the car thief if he saw him again and readily identified Trammell at the trial. 5. The length of time between the crime and the confrontation. Eglich selected Trammell’s photograph from the photographic lineup 7 days after the incident. Eglich’s in-court identification occurred 2 years after the robbery. 6. The witness’ capacity to observe the event, including his or her mental and physical acuity. Eglich testified that he confronted the car thief during the daylight and that nothing was obstructing his view of the car thief when he pulled alongside the tow truck with his motorcycle. Trammell argues that Eglich’s view was obstructed by the visor on his motorcycle helmet, but Eglich testified that his visor was pushed up out of his field of vision. 7. Whether the witness’ identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion. Eglich’s first identification was at the photographic lineup. He immediately selected Trammell’s picture and was able to distinguish between Trammell’s photograph in the lineup, his appearance at the time of the robbery, and his appearance in court. Tram-mell argues that Eglich’s identification was contaminated by newspaper accounts. This argument overlooks the fact that Eglich was not given the names of the individuals in the photographic lineup before he identified Trammel’s photograph, and Eglich did not see the newspaper articles until after he had identified Tram-mell in the photographic lineup. 8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. Eglich testified that he was excited and his adrenaline was pumping. Based on his testimony, it is fair to infer that pursuing a possible car thief was atypical for Eglich, increasing the likelihood that he would perceive, remember, and relate the event correctly. There is nothing in the record to establish Eglich’s race to determine whether there was a cross-racial identification. Considering the totality of the circumstances in light of the Hunt factors, the trial court did not err when it allowed Eglich to identify Trammell in court during the trial. Richard Krigger Finally, Trammell argues that the in-court identification by Kase’s neighbor, Richard Krigger, was unreliable. Krigger observed the car thief standing near the tow truck before he left with the Corvette and later when the car thief drove past him again. He did not give a description to the police and did not make a pretrial identification. Krigger was 75 percent sure of his identification in court but stated that he was not sure that he would have recognized the car thief walking down the street. Krigger’s statement that he would not have recognized the car thief if he had passed him on the street and the 2-year delay in making an identification invalidates the reliability of Krigger’s identification. However, we find the admission of his identification to be harmless error. Harmless error occurs when the erroneous admission of evidence could not have affected the result of the trial when considered in light of other evidence that was properly admitted. State v. Collier, 259 Kan. 346, 353, 913 P.2d 597 (1996). In this case, the positive identifications from victims of the crimes, Loper, Kase, and Eglich, overcome any problems with the identification by Krigger, whose observation of the crimes was far more tangential than that of the three victims. Trammell next argues that the trial court should not have admitted into evidence the gun that was found in his possession when he was arrested. The admission of evidence is within the trial court’s discretion. Subject to the exclusionary rules, appellate courts review a trial court’s decision to admit or exclude evidence using an abuse of discretion standard. Judicial discretion is not abused if reasonable persons could differ about the propriety of the trial court’s action. State v. Whitesell, 270 Kan. 259, 276, 13 P.3d 887 (2000). The person claiming that the trial court abused its discretion bears the burden of establishing such an abuse. 270 Kan. at 276-77. The admissibility of physical evidence is based on its relevance in connection with the accused and the crime charged. Physical evidence should be admitted unless it is clearly irrelevant. The jury may attribute such weight and effect as it sees fit. 270 Kan. at 277. Relevant evidence is any evidence “having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). The determination of relevancy is a matter of logic and experience, not a matter of law. State v. Gardner, 264 Kan. 95, 104, 955 P.2d 1199 (1998). Nevertheless, there must be some material or logical connection between collateral facts and the inference or result they are supposed to establish for them to be competent. 264 Kan. at 104. When a weapon is found in the defendant’s possession and later identified as being similar to the one used in the crime, the lack of testimony positively identifying the weapon as that used in the crime goes to the weight, not the admissibility, of the evidence. State v. Mitchell, 220 Kan. 700, 704, 556 P.2d 874 (1976). Kase and Eglich both testified diat the gun found in Trammell’s possession looked similar to the one used by the car thief when the Corvette was stolen. Because the gun was identified as being similar to the gun used during the car theft and assaults, the witnesses’ inability to identify it as the exact gun goes to the weight rather than the admissibility of the gun. Accordingly, the trial court did not abuse its discretion by admitting the gun into evidence. Next, Trammell argues that the trial court erred when it denied his motion for a new trial based on newly discovered evidence. The granting of a new trial is a matter within the trial court’s discretion. Judicial discretion is abused when no reasonable person would agree with the trial court’s decision. See State v. Betts, 272 Kan. 369, 380-81, 33 P.3d 575 (2001). Within 2 weeks of the beginning of Trammell’s trial, the prosecutor learned that Trammell intended to assert that Cross committed the crimes. In response, the prosecutor prepared copies of all of the police reports involving Cross and delivered the copies to the District Attorney’s records department for distribution to Trammell’s counsel. The prosecutor advised Trammell’s counsel that discovery was available. However, Trammell’s counsel did not receive the copies until nearly 6 weeks after Trammell’s trial began. The police reports stated that when arrested, Cross was in possession of a blue nylon bag that Cross said belonged to Trammell. Inside the blue nylon bag, police found weatherstripping from a motel room near Cross’ motel room at the Econo Lodge motel where Cross was arrested. Police had previously observed Cross remove the weatherstripping in an unsuccessful attempt to break into the motel room. The police also found a cardboard box in Cross’ motel room that contained paperwork from the Amoco station where the tow truck had been stolen. Pursuant to K.S.A. 22-3501(1), a court may grant a motion for a new trial based on newly discovered evidence. However, new trials on grounds of newly discovered evidence are not favored, and such motions are to be viewed with caution. Betts, 272 Kan. at 380. There are two requirements that must be met before a trial court may grant a motion for new trial based upon newly discovered evidence: “First, the defendant must establish that the newly proffered evidence is indeed ‘new/ in that it could not, with reasonable diligence, have been produced at trial. Second, the evidence must be of such materiality that there is a reasonable probability that the newly discovered evidence would produce a different result upon retrial.” 272 Kan. at 380. Trammell does not allege that the State acted in bad faith by withholding exculpatory evidence. Likewise, the State does not argue that Trammell could have discovered the evidence through due diligence. This situation has been referred to as an “oversight” situation. See State v. Kelly, 216 Kan. 31, 36, 531 P.2d 60 (1975). The Kelly court stated: “When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence was withheld or suppressed by the prosecution, (2) that die evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the iury was clearly prejudicial to the defendant.” 216 Kan. at 36. Exculpatory evidence tends to disprove a fact in issue that is material to guilt. State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997). “Evidence is material if it might have created reasonable doubt and affected the outcome of the trial.” 261 Kan. at. 383. Courts apply three different standards for determining the materiality of evidence. First, there is evidence that is merely helpful to the defense. Second, there is evidence that raises a reasonable doubt as to the defendant’s guilt. Third, there is evidence that creates a substantial likelihood of reversal. The proper standard for determining materiality must reflect the court’s overall concern with the justice of the finding of guilt. A guilty finding is only permissible if it is supported by evidence establishing guilt beyond a reasonable doubt. Thus, if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. 261 Kan. at 383. Trammell argues that Cross’ statement about the ownership of the blue nylon bag is exculpatoiy and material because it proves Trammell’s theory that Cross was blaming Trammell for Cross’ criminal activity. Cross, however, did not state that Trammell was responsible for the attempted break-in at the motel room. Consequently, Trammell’s argument is based on the inference that because the blue nylon bag belonged to Trammell, Trammell must have put the weatherstripping in it. Trammel’s argument overlooks the inference that Cross could have placed the weatherstripping in a bag owned by Trammell, which begs the question of how Cross happened to be in possession of Trammell’s bag. Trammell provided the answer to this question when he testified that he thought Cross was involved in stealing some of Trammell’s property. Likewise, Trammell’s allegation that Cross was involved in stealing Trammell’s property also provides an explanation regarding Cross’ possession of paperwork from the Amoco station. The newly discovered evidence can be considered exculpatory because it tends to disprove the eyewitnesses’ identification of Trammell as the robber. The evidence is helpful to Trammell because it supports his claim that Cross framed him. However, the evidence is not material in the sense that it would have created a reasonable doubt and affected the outcome of the trial. Trammell’s testimony provides an obvious explanation for Cross’ possession of items that were related to Trammell. The jury could have easily inferred that Cross stole the blue nylon bag and the cardboard box along with Trammell’s other possessions. When considered in light of Trammell’s testimony and the testimony from the three victims who readily identified Trammell, the new evidence does not rise to the level of creating a substantial likelihood of reversal. The trial court did not abuse its discretion when it denied Trammell’s motion for a new trial. Finally, Trammell argues that his conviction should be reversed due to cumulative trial errors. This court looks at the totality of the circumstances to determine whether cumulative errors have substantially prejudiced the defendant and denied his or her right to a fair trial. However, if the evidence is overwhelmingly against the defendant, no prejudicial error may be found based on the cumulative effect rule. State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). Trammell claims the following cumulative errors: (1) erroneous admission of the pretrial identifications; (2) failure to grant a new trial to include the new exculpatory evidence; and (3) erroneous admission of the gun. Each of these claims have been determined against Trammell. Thus, he has failed to establish any errors that prejudiced his right to a fair trial. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Luckert, J.: Shawn P. McCormick sued the City of Lawrence (City) and various police officers for violating the strip and body caviiy search statutes, K.S.A. 22-2521 and K.S.A. 22-2522, which are made actionable by K.S.A. 22-2523. The district court dismissed McCormick’s lawsuit, ruling that it was not filed within the applicable statute of limitations. The district court found that McCormick’s cause of action was a general tort covered by the 2-year statute of limitations set forth in K.S.A. 2003 Supp. 60-513, not an action based upon a liability created by a statute covered by the 3-year statute of limitations set forth in K.S.A. 60-512(2). The Court of Appeals affirmed, holding that either the 1-year statute of limitations in K.S.A. 60-514 or the 2-year statute of limitations in K.S.A. 2003 Supp. 60-513 applied but not the 3-year statute of limitations in K.S.A. 60-512(2). McCormick v. City of Lawrence, 32 Kan. App. 2d 817, 818, 820, 89 P.3d 657 (2004). This court granted McCormick’s petition for review. The sole issue before us is whether the 3-year statute of limitations found in K.S.A. 60-512(2) applies to actions brought under K.S.A. 22- 2523, which by its terms incorporates K.S.A. 22-2521 and K.S.A. 22-2522. We conclude that the 3-year limitation period of K.S.A. 60-512(2) does apply, and we therefore reverse the Court of Appeals and the district court. The issue of whether the statute of limitations barred the action arose at the district court level on a motion to dismiss filed by the City and the individual police officers who were named as defendants. The parties agree that if a 3-year statute of limitations applies, McCormick’s petition was timely, but if a 2-year or 1-year statute of limitations applies, his petition was untimely. McCormick, in his petition, alleges that the events which gave rise to this lawsuit occurred on June 9, 1999. On June 4, 2002, McCormick filed a K.S.A. 12-105b(d) letter stating his claim that Lawrence police officers illegally subjected McCormick to a strip and body cavity search. McCormick’s claim was denied by the City on September 23, 2002. On September 24, 2002, McCormick filed the petition which is the subject of this appeal. The Court of Appeals applied the correct standard of review for an order granting a motion to dismiss based upon a determination that the action was barred by the applicable statute of limitations: “The standard of review for a motion to dismiss under K.S.A. 60~212(b)(6) requires us to determine whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff s favor, the petition states any valid claim for relief. University of Kansas Mem. Corp. v. Kansas Power & Light Co., 31 Kan. App. 2d 177, 179, 61 P.3d 741 (2003). Further, when the issue before us requires interpretation of a statute, we are faced with a question of law, and an appellate court’s review of a question of law is unlimited. In this case, review of the trial court’s ruling requires us to interpret the meaning and potential applicability of statutes of limitation. See Stark v. Mercantile Bank N.A., 29 Kan. App. 2d 717, 721, 33 P.3d 609 (2001).” McCormick, 32 Kan. App. 2d at 818. In particular, our review of the district court’s ruling requires us to interpret the meaning and potential applicability of the limitation period of K.S.A. 60-512(2), which establishes a 3-year time limit for “[a]n action upon a liability created by a statute other than a penalty or forfeiture.” The 3-year statute of limitations “applies when a statute creates a new, substantive right not recognized at common law, but not when a statute merely affords relief for cer tain violations of existing common-law rights.” Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 983, 889 P.2d 130 (1995). Stated another way, K.S.A. 60-512(2) applies when a statute creates a liability where liability would not exist but for the statute. If the statute merely provides a procedure for obtaining relief, it does not trigger K.S.A. 60-512(2). Wright v. Kansas Water Office, 255 Kan. 990, 997, 881 P.2d 567 (1994). The district court applied these principles and concluded that K.S.A. 22-2523 was remedial and not substantive and did “not establish any elements not found in a common law action for breach of privacy.” Therefore, the district court concluded, the action was based upon a right existing at common law and did not implicate the 3-year statute of limitations which applies to “a liability created by statute other than a penalty or forfeiture” under K.S.A. 60-512(2). Instead the district court applied the 2-year limitations period of K.S.A. 60-513(a)(4) which applies to actions “for injury to the rights of another, not arising on contract, and not herein enumerated.” The Court of Appeals also concluded that the 3-year statute of limitations did not apply; however, it did so on the basis that McCormick’s claim fell within the Fourth Amendment prohibition against unreasonable searches and seizures. The court stated: “In general, strip searches are discussed within the framework of the common law under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. See Rankin v. Colman, 476 So. 2d 234,236 (Fla. Dist. App. 1985). The Fourth Amendment constrains State search intrusions made in an improper manner. This includes procedures employed by the authorities to conduct a search involving intrusion into the body. 68 Am. Jur. 2d, Searches and Seizures § 250, p. 817. We believe it cannot be debated that the Fourth Amendment concept of protection against unreasonable search and seizure is implicitly ingrained in our common-law system of justice. “The Fourth Amendment, which codifies deeply held common-law notions of privacy, already grants substantive rights protecting against government intrusion in the form of inappropriate searches. The Kansas Tort Claims Act has made these rights actionable. Therefore, there is no new liability created by K.S.A. 22-2523. Given that fact, K.S.A. 60-512(2) and its 3-year statute of limitations would not apply to McCormick’s situation. The action would have a 1-or 2-year limitation period.” McCormick, 32 Kan. App. 2d at 820. In his petition for review, McCormick emphasizes that his claims are not based upon breach of privacy or the Fourth Amendment but are based solely upon violations of K.S.A. 22-2521 and K.S.A. 22-2522. McCormick argues the district court and Court of Appeals erred in ignoring the specific elements stated in an action brought under these statutes, elements which are not required in a breach of privacy or other action at common law or by 42 U.S.C. § 1983 (2000). In analyzing this argument, we must view McCormick’s allegations in a light most favorable to him. Our inquiry necessarily starts with a consideration of the nature of those allegations. In Count I of his petition, McCormick alleges that various Lawrence police officers pulled McCormick out of a car and conducted a “strip search,” as that phrase is defined in K.S.A. 22-2520(a). McCormick further alleges that the strip search violated K.S.A. 22-2521(b). K.S.A. 22-2521 provides: “(a) No person detained or arrested solely for the violation of a statute, resolution or ordinance involving a traffic, regulatory or nonviolent misdemeanor offense shall be strip searched unless there is probable cause to believe that the individual is concealing a weapon or controlled substance. “(b) Every strip search conducted by law enforcement officers or employees of a law enforcement agency or department shall be conducted by persons of the same sex as the person being searched and shall be conducted so that the search cannot be observed by any person other than the persons conducting the search, unless the right to privacy is waived by the person being searched. “(c) Every law enforcement officer or employee of a law enforcement agency or department conducting a strip search shall prepare a report of the strip search. The report shall include: (1) The name and sex of the person searched; (2) the name and sex of the persons conducting the search; (3) the time, date and place of the search; and (4) a statement of the results of the search.” Specifically, McCormick alleges the strip search “was conducted so that it could be and was observed by others besides the person who conducted the search.” McCormick also alleges that the officers did not prepare a report of the strip search. In Count II of his petition, McCormick alleges the search included a “body cavity search” as defined in K.S.A. 22-2520(b) and that this search violated K.S.A. 22-2522. That statute provides: “(a) A body cavity search shall be conducted only under the authority of a search warrant specifically authorizing a body cavity search. “(b) Every body cavity search shall be conducted by a licensed physician or registered nurse. No person authorized by this subsection to conduct a body cavity search or any person assisting in the performance of such search shall be liable in any civil or criminal action when such search is performed in a reasonable manner according to generally accepted medical practices in the community where performed. “(c) Law enforcement officers maybe present during the search, but only those of the same sex as the person on whom a body cavity search is being conducted.” K.S.A. 22-2522. According to McCormick’s allegations, this provision was violated because there was no warrant specifically authorizing a body cavity search and the search was not conducted by a licensed physician or registered nurse. In Count III of the petition, McCormick also claims damages because of a civil conspiracy to violate his statutory rights. McCormick alleges that the court has jurisdiction of his claims under K.S.A. 22-2523 which provides in part: “(a) If liability is established in any civil action brought under the Kansas tort claims act for violation of subsections (a) or (b) of K.S.A. 22-2521, or K.S.A. 22-2522, the plaintiff shall be entitled to an amount equal to the sum of the following: (1) Actual damages sustained by the plaintiff; (2) punitive damages, if the violation was willful, wanton or malicious; (3) the costs of the action, at the discretion of the court; and (4) a civil penalty in an amount set by the court of not more than $2,000 for each violation.” McCormick seeks actual damages and costs but does not seek either punitive damages or a civil penalty. Emphasizing the specific allegations he made and the language of these statutes, McCormick contends that a cause of action under K.S.A. 22-2521, K.S.A. 22-2522, and K.S.A. 22-2523 is a unique cause of action in the universe of possible causes of action for police misconduct. While he concedes that the alleged police misconduct in his case might give rise to a number of causes of action under state law or pursuant to 42 U.S.C. § 1983, he argues his statutory cause of action is different. He points out that the statutes at issue do not define the limits of civil liability for unreasonable searches and seizures under the Fourth Amendment; rather, they define the manner in which strip searches and body cavity searches must be conducted and create a cause of action when the procedures set out therein are not followed. The City counters that not every statute which describes a liability creates a cause of action, citing Kirtland v. Tri-State Ins. Co., 220 Kan. 631, 556 P.2d 199 (1976) (holding that K.S.A. 66-1,128, which permits a plaintiff to bring suit against a motor carrier s insurer, is remedial rather than substantive), and Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 608 P.2d 923 (1980) (K.S.A. 40-3113 provides for recoupment by the insurer of personal injury protection benefits paid to its insured from the tortfeasor and tortfeasor s insurer through subrogation; statute was not meant to create new statutoiy cause of action). However, in those cases, the statutes at issue did not set out the damages recoverable for specific violations as does K.S.A. 22-2523. K.S.A. 22-2523, which incorporates K.S.A. 22-2521 and K.S.A. 22-2522, is substantive and provides a cause of action when a search is conducted in violation of these statutes. Because there are unique elements for an action brought for violation of these statutes, McCormick argues that the fact there are other theories of recovery recognized at common law does not mean the 3-year limitation period does not apply. Support for McCormick’s argument can be found in Kelly v. Primeline Advisory, Inc., 256 Kan. 978, 983, 889 P.2d 130 (1995), and Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 732 P.2d 392, rev. denied 241 Kan. 838 (1987). Kelly held that because fraud-based actions under the Kansas Securities Act are different from common-law actions for fraud, the Act creates liability and the 3-year statute of limitations applies. 256 Kan. at 983. Haag involved a claim under the Kansas Consumer Protection Act (KCPA). The defendant argued that because an action under the KCPA is an action based on fraud, the 2-year statute of limitations contained in K.S.A. 60-513(a)(3) barred the plaintiffs action. The Court of Appeals disagreed: “[A] plaintiff pursuing a cause of action under the KCPA may establish a supplier’s liability without proof that the supplier intended to injure the consumer. This difference clearly distinguishes the KCPA action from the common-law fraud action. A violation of the KCPA is not the same as a common-law action for fraud such as is contemplated by the provisions of K.S.A. 60-513[(a)](3).” Haag, 11 Kan. App. 2d at 651. The defendant in Haag also argued that the 1-year statute of limitations for an “action upon a statutory penalty or forfeiture” contained in K.S.A. 60-514(3) (Ensley 1983) barred the plaintiff s claim because a claim under the KCPA might give rise to a statu-toiy penalty. Again, the Court of Appeals disagreed finding that “ ‘[t]he nature of plaintiff s action was to recover upon a liability created by statute and not upon a statutory penalty.’ ” 11 Kan. App. 2d at 651. See also Alexander v. Certified Master Builders Corp., 268 Kan. 812, 819-24, 1 P.3d 899 (2000) (further clarifying the issue of whether different statutes of limitation should apply depending upon whether an action under the KCPA seeks damages or a statutory penalty; holding that where the plaintiff sought both civil penalties and actual damages, the action was subject to the 3-year limitations period). Finally, the Haag court noted that “ where there is doubt as to which statute of limitations should apply, the longer statute, should be chosen.’ [Citation omitted.]” 11 Kan. App. 2d at 652. The court concluded that because an action under the KCPA is an action upon a liability created by statute, the applicable statute of limitations was the 3-year period provided by K.S.A. 60-512(2). 11 Kan. App. 2d at 652. Thus, in both Kelly and Haag common-law causes of action existed, but the statutes created liability and in each case the elements were different from the common-law action. Relying on these cases and noting the unique requirements of K.S.A. 22-2520 et seq., McCormick argues that the Court of Appeals erred in relying on a Fourth Amendment analysis to find that his cause of action already existed at .common law and was not created by statute. The City concedes there are differences between the statutes and the Fourth Amendment requirements but argues such differ- enees are irrelevant. Essentially, the City’s argument is that the appropriate test to be applied is whether McCormick would have had any cause of action at common law regardless of whether it is a different cause of action, while McCormick argues the appropriate test is whether he would have had the same cause of action at common law as he does under K.S.A. 22-2523. The City’s argument is erroneous. As discussed above, Kelly held that a fraud-based cause of action under the Kansas Securities Act was not the same as a common-law fraud action; therefore, the Act created liability and the 3-year statute of limitations applied. 256 Kan. at 983. Haag held that a claim under the Kansas Consumer Protection Act was different from a common-law fraud claim because the element of intent to defraud was not necessary to establish a violation of KCPA; therefore, the KCPA created the cause of action and the 3-year statute of limitations applied. 11 Kan. App. 2d at 650-51. Under Kelly and Haag, the applicable test is whether a plaintiff would have had the same cause of action at common law, not any cause of action. Are there differences, then, as McCormick suggests, between a cause of action pursuant to K.S.A. 22-2523 and other possible causes of action which McCormick might pursue based upon the facts he alleges? Beginning with claims based upon a violation of McCormick’s constitutional rights, McCormick could have brought an action pursuant to 42 U.S.C. § 1983. To state a valid claim pursuant to 42 U.S.C. § 1983, McCormick would be required to allege two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law and (2) that this conduct deprived him of rights, privileges, or immunities secured by the Constitution or federal law. Purvis v. Williams, 276 Kan. 182, 198, 73 P.3d 740 (2003). Clearly, there is a difference between a § 1983 claim that police violated a plaintiffs Fourth Amendment right by conducting an unreasonable strip search or body cavity search and a claim that police violated K.S.A. 22-2521 or K.S.A. 22-2522 by failing to follow the procedures set out in those statutes when conducting a strip search or body cavity search. First, a strip search or body cavity search could violate K.S.A. 22-2521 or K.S.A. 22-2522 with out being unreasonable under the Fourth Amendment. See Agustonelli v. Springer, 2004 WL 825300 (unpublished opinion) (D. Kan. 2004); Allen v. Board of Com’rs of the County of Wyandotte, 773 F. Supp. 1442 (D. Kan. 1991). In Agustonelli and Allen, plaintiffs filed claims under 42 U.S.C. § 1983 claiming that police had violated their Fourth Amendment rights to be free of unreasonable searches and seizures by subjecting them to strip searches in violation of K.S.A. 22-2521. In each case, the district court ruled the plaintiffs reliance on the state statute was misplaced because § 1983 does not provide redress for violations of state law, only for violations of federal law done under color of state law. Thus, the only issue in each case was whether the strip search had violated the plaintiffs Fourth Amendment rights. See 2004 WL 825300, *6; 773 F. Supp. at 1447. “[The] determination of the constitutionality of a strip search requires abalancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (emphasis added).” Farmer v. Perrill, 288 F.3d 1254, 1259-1260 (10th Cir. 2002). Thus, there are differences between an action brought for violations of K.S.A. 22-2521 and K.S.A. 22-2522 and an action brought pursuant to 42 U.S.C. § 1983. According to the City, even if the Court of Appeals erred in comparing McCormick’s cause of action to a Fourth Amendment claim, the court reached the correct conclusion because an injured party has always had the common-law right to bring a state law claim for damages caused by law enforcement officers. See Monroe v. Darr, 221 Kan. 281, 559 P.2d 322 (1977) (breach of privacy action for unlawful search of residence); Busalt v. Doidge, 91 Kan. 37, 136 Pac. 904 (1913) (action for assault against arresting officer). The district court compared the elements required to state a cause of action for a violation of the statutes in question with the elements required to state a cause of action for breach of privacy. The court noted that in Monroe v. Darr, 221 Kan. 281, this court had upheld the right of a plaintiff to bring a cause of action for breach of privacy where police had searched the plaintiff s residence without a warrant. The court also cited Kedra v. City of Philadelphia, 454 F. Supp. 652 (E.D. Pa. 1978), which held that an illegal search is most analogous to the tort of intrusion upon a person’s seclusion. The district court reasoned that if a breach of privacy action can be brought for an unreasonable search of a person’s property, such an action could also be brought for an unreasonable search of the person himself or herself. The district court concluded that K.S.A. 22-2523 does not establish any elements not found in a common-law action for breach of privacy. Breach of privacy includes an unreasonable intrusion upon the seclusion of another, which is described as follows: “ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man.’ ” Dotson v. McLaughlin, 216 Kan. 201, 207, 531 P.2d 1 (1975) (quoting Restatement [Second] of Torts § 652). The district court found the only difference between a cause of action for breach of privacy and a cause of action under K.S.A. 22-2523 was that the statute imposes a civil penalty in addition to damages. Accordingly, the district court held that McCormick’s cause of action existed prior to the enactment of the statutes at issue; thus, the 2-year statute of limitations for general tort actions applied and barred his action. However, as McCormick notes, the statutory cause of action may be stated for violations of the statutory requirements such as conducting a strip search so that it can be observed by persons not involved in the search or not having a body cavity search performed by a licensed health care provider. These violations are among those claimed by McCormick. Thus, although one can imagine several common-law tort claims which might be brought based upon the facts alleged in this case— assault, battery, outrageous conduct causing severe emotional distress, and breach of privacy — those torts involve different elements than what must be shown to establish a violation of the strip search and body cavity search statutes. K.S.A. 22-2521 and K.S.A. 22-2522 create substantive rights not recognized at common law. Consequently, we hold that an action brought for damages under K.S.A. 22-2523, which incorporates K.S.A. 22-2521 and K.S.A. 22-2522, is subject to the 3-year period of limitations of K.S.A. 60-512(2). Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded. Gernon, J., not participating. Larson, S.J., assigned.

The opinion of the court was delivered by Gernon, J.: This is an appeal by Robert J. Gaudina from a trial court ruling that he was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel as alleged in his K.S.A. 60-1507 motion. We transferred the case pursuant to K.S.A. 20-3018(c). Gaudina raises three issues: (1) the legality of his enhanced sentences; (2) whether he was entitled to an evidentiaiy hearing; and (3) whether the trial court violated Kansas Supreme Court Rule 183(j) (2003 Kan. Ct. R. Annot. 213), which requires a district court to make findings of fact and conclusions of law. Enhanced Sentence Gaudina contends that our interpretation of the United States Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), which we applied in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), requires that his enhanced sentence be vacated. Gaudina was convicted of one count each of aggravated battery, aggravated burglary, and aggravated kidnapping. The trial court dismissed the aggravated kidnapping conviction because the complaint contained a fatal error. The trial court granted the State’s motion for an upward dura-tional departure and sentenced Gaudina to double the maximum presumptive sentences and ordered that the sentences be served consecutively for a total prison term of 150 months. The determination of whether Apprendi and Gould apply is a question of law over which this court has unlimited review. See Whisler v. State, 272 Kan. 864, 868-79, 36 P.3d 290 (2001), cert. denied 535 U.S. 1066 (2002). In Gould this court stated: “Our holding on the constitutionality of upward departures under the KSGA has no retroactive application to cases final as of June 26, 2000, the date Apprendi was decided. However, the new constitutional sentencing rule established by Ap-prendi must be applied here and in all cases pending on direct appeal or which are not yet final or which arose after June 26, 2000.” 271 Kan. at 414. Kansas appellate courts have applied a three-step analysis for determining whether a change in the law should be applied retroactively in a criminal case under collateral attack. First, the court must determine whether the movant has properly raised the issue in his or her collateral attack. Supreme Court Rule 183(c) limits the issues that may be raised in a collateral attack. See, e.g., Easterwood v. State, 273 Kan. 361, 370-72, 379-80, 44 P.3d 1209 (2002); State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990); Alires v. State, 21 Kan. App. 2d 676, 677-79, 906 P.2d 172 (1995). Second, the court determines whether the case was final when the new law was established. See, e.g., Easterwood, 273 Kan. at 370; Whisler, 272 Kan. at 867; Neer, 247 Kan. at 143-44; Alires, 21 Kan. App. 2d at 679. If a case was final when the new law was established, the general rule is that the new law will not be applied to cases on collateral attack. Whisler, 272 Kan. at 878-79. Third, if the case was final before the new law was established, the court must determine whether any exception to the general rule against retroactive application applies. See, e.g., Easterwood, 273 Kan. at 371-72, 379-80; Whisler, 272 Kan. at 870-71, 876-79; Neer, 247 Kan. at 143-44. Supreme Court Rule 183(c) provides that “trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” (2003 Kan. Ct. R. An-not. 213.) The State contends that Gaudina should not be allowed to raise this issue, since he failed to allege any exceptional circumstances excusing his failure to raise the issue on direct appeal. This court has previously distinguished between trial errors under Rule 183 and sentencing errors. We have interpreted K.S.A. 60-1507 to allow a prisoner who asserts that his or her sentence is illegal or void to move the court to vacate the sentence at any time. Carmichael v. State, 255 Kan. 10, 15-16, 872 P.2d 240 (1994). In Whisler, 272 Kan. at 879, we precluded retroactive application of Apprendi to cases on collateral attack. The time frame in Whisler is materially different than the time frame here. In Whisler, the finality of Whisler’s direct appeal was not in question because Apprendi was decided over 3 years after Whisler’s direct appeal was final. Here, Gaudina argues that his appeal was not final on June 26, 2000, because his time for filing a petition for writ of certiorari with the United States Supreme Court did not expire until August 2000. Kansas has adopted the same rule for finality set forth in Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). The Griffith Court stated that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U.S. at 328. In a footnote, the Griffith Court defined “final” as “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” 479 U.S. at 321 n.6. The Gould court relied on the Griffith holding when it limited the retroactive application of Apprendi to cases that were not final on the date Apprendi was decided. 271 Kan. at 414 (citing State v. Hood, 242 Kan. 115, 117, 744 P.2d 816 [1987], which quotes Griffith). In State v. Heath, 222 Kan. 50, 54, 563 P.2d 418 (1977), this court stated that “[a] conviction is generally not considered ‘final’ until (1) the judgment of conviction has been rendered, (2) the availability of an appeal has been exhausted, and (3) the time for any rehearing or final review has passed.” Given the definition of “final” set forth in Griffith and Heath, Gaudina’s case was not final until his time for filing a petition for writ of certiorari with the United States Supreme Court had elapsed. We are not at liberty to speculate as to whether he would have filed a petition for writ of certiorari. The rules for the United States Supreme Court require that a petition for writ of certiorari be filed within 90 days of the date the Kansas Supreme Court denies review. See 28 U.S.C. § 2101(d) (2000); Rule 13(1), 28'U.S.C. Appendix, Supreme Court Rules (2000). This court denied Gaudina’s petition for review on May 3, 2000. Gaudina’s case became final 90 days later, on August 1,2000, after the Apprendi decision was filed. Consequently, Gaudina’s en hanced sentences are subject to Apprendí and Gould. See Gould, 271 Kan. at 414. Because Apprendi requires any fact used to increase the penalty for a crime other than a previous conviction to be submitted to a jury and found beyond a reasonable doubt, this court concluded that K.S.A. 2000 Supp. 21-4716 was unconstitutional on its face. Gould, 271 Kan. at 413. Given the unique time frame here, we must vacate Gaudina’s sentences and remand for resentencing. Evidentiary Hearing/Supreme Court Rule 183(j) Gaudina argues that the district court erroneously denied his request for a hearing on his K.S.A. 60-1507 motion. The district court has discretion to determine whether a movant’s claim is substantial before granting a full evidentiaiy hearing and ordering the movant’s presence at the hearing. Lujan v. State, 270 Kan. 163, 170, 14 P.3d 424 (2000). Kansas law gives the district court three options for proceeding on a 60-1507 motion. Lujan, 270 Kan. at 170. “First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner’s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial.” Lujan, 270 Kan. at 170-71. Gaudina argues that he raised several factual issues regarding his claim of ineffective assistance of trial and appellate counsel and that the resolution of those issues required an evidentiary hearing with him present. The district court conducted a preliminary hearing, but Gaudina’s counsel did not raise any arguments regarding Gaudina’s claim of ineffective assistance of counsel. The district court summarily denied Gaudina’s claim on ineffective assistance of counsel, stating: “[T]he court rules that most of the issues concerning the effective assistance of counsel were adjudicated on di rect appeal and the records and files show there was no ineffective assistance of counsel.” Gaudina argues that the district court’s summary disposition violates Rule 183(j), which requires the district court to “make findings of fact and conclusions of law on all issues presented.” (Emphasis added.) Supreme Court Rule 183(j) (2003 Kan. Ct. R. Annot. 214). In Harris v. State, 31 Kan. App. 2d 237, 62 P.3d 672 (2003), the Court of Appeals addressed Harris’ claim that the district court failed to comply with Rule 183(j) when it issued a perfunctory denial of his 60-1507 motion. After looking at both the journal entry and the 60-1507 hearing transcript, the Harris court concluded that the district court had failed to issue any findings of fact and conclusions of law in compliance with Rule 183(j). Specifically, the Harris court noted the district court’s failure to respond to any of Harris’ claims regarding the ineffective assistance of his counsel and to address the standard for evaluating ineffective assistance of counsel claims. As a result, the Harris court had nothing meaningful to review to determine whether Harris’ claims were meritorious, even though there were obvious “infirmities in Harris’ factual presentation and legal reasoning.” 31 Kan. App. 2d at 239-40. Harris applies to this case. Although there are certain factual and legal infirmities in Gaudina’s claims, there are insufficient findings and conclusions to allow this court to review all of Gaudina’s claims of ineffective assistance of counsel. Accordingly, the matter must be remanded to the district court for findings of fact and conclusions of law consistent with Rule 183(j). Reversed, sentences vacated, and case remanded for resentenc-ing and for compliance with Rule 183(j).

The opinion of the court was delivered by Allegrucci, J.: Corwin Roy sued Candis L. Young and her law firm, Katz & Young, L.C. (collectively Young), alleging legal malpractice and violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. The district court granted summary judgment in favor of Young on the ground that the legal malpractice and KCPA claims were time barred and denied Roy’s motion for partial summary judgment on the question whether Young breached a duly of care. Roy appealed. The court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c). Roy raises two issues on appeal: (1) Is his legal malpractice claim time barred and (2) did the district court err in denying Roy’s motion for partial summary judgment on the issue of Young’s duty and breach of duty? There is no dispute as to the material facts. In March 1996, Corinthian Mortgage Corporation (Corinthian) filed a petition for foreclosure against Roy in Johnson County District Court. In the mortgage action against Roy, Candis Young filed a timely answer and counterclaim on behalf of Roy. The counterclaim alleged breach of contract and misrepresentation. On March 10,1997, Corinthian filed a motion for summaiy judgment. It was set for hearing on April 10, 1997. Supreme Court Rule 141(b) (2003 Kan. Ct. R. Annot. 191) provides that opposition to a motion for summary judgment is to be filed and served within 21 days from the filing of the motion unless the time is extended by court order. During the 21-day period, Young failed either to file a response or request an extension of time in which to respond. Without requesting ieave to file a response out of time, Young sent a letter and a response to Corinthian’s motion to the district court chambers on April 9, 1997. In addition to being untimely, the response did not comply with Rule 141(b) in several ways. It did not set forth in separately numbered paragraphs a statement whether each factual contention of movant was controverted or, if controverted, a summaiy of conflicting testimony or evidence. Nor did it include any references to anything in the record before the court. On May 8, 1997, a Journal Entiy of Judgment and Mortgage Foreclosure was filed against Roy. It stated in part: “On March 10,1997, Corinthian filed its Motion for Summaiy Judgment on its foreclosure claim and against Roy’s counterclaims (‘Motion’). Roy filed no opposition or request for an extension of time during the twenty-one day period following service of the Motion. On the day before the hearing on Corinthian’s Motion, Roy submitted an opposition to the Motion which did not conform with the requirements of Supreme Court Rule 141(b). Therefore, Roy is deemed to have admitted the uncontroverted facts as set forth in Corinthian’s Memorandum in Support of Summaiy Judgment. Corinthian’s uncontroverted facts are incorporated by reference. “It is undisputed that: 1) Roy had no agreement for Corinthian to provide him a loan until he received a written notice of the loan approval; 2) prior to December 1,1994, Roy never received any loan commitment from Corinthian; and 3) finally, and most importantly, Corinthian loaned Roy all the money which he requested. Corinthian is granted Summary Judgment on the counterclaims because Roy failed to comply with the requirements of Supreme Court Rule 141(b) and controvert the facts set forth by Corinthian. “It is also uncontroverted that: 1) Roy executed a note and mortgage to Corinthian; 2) Roy failed to malee payments on the note; 3) Roy is in default; and 4) Roys mortgage is subject to foreclosure. Because of Roy s defaults on the note, there is due from Roy, and Corinthian should have judgment as of April 10,1997, of the following: $75,980.69 Principal Amount: 8,348.21 Interest Accrued Amount: 6.076.23 Charges: $90,405.13 Judgment The Judgment continues to accrue interest at a rate of $17.17 per diem after April 10, 1997. “By reason of Roy’s default, Corinthian is entitled to foreclose the Mortgage. Because Roy has paid less than one-third of the original debt, Roy’s redemption period is three months pursuant to K.S.A. 60-2414.” In an affidavit, Albert Kuhl, an attorney licensed to practice in Kansas, averred that he met with Roy sometime after June 16, 1997. Roy expressed a belief that Young had filed a motion to reconsider Corinthian’s judgment against him. Kuhl, however, was unable to find a motion to reconsider or similar written request in the court file. Kuhl so advised Roy. On May 7, 1999, Roy filed a pro se petition alleging negligence, breach of fiduciary duty, and fraud against the defendants, Candis Young and Katz & Young, Case No. 99C5886. In June 1999, Roy, through counsel, filed a written request for a malpractice screening panel. See K.S.A. 2003 Supp. 60-3502. An order convening a screening panel was filed in July 1999. In August 2000, Case No. 99C5886 was dismissed without prejudice for lack of prosecution. The order stated: “The Court has received the information from David Bryan (Roy’s counsel) that plaintiff is not prepared to go forward at this time due to the fact the Statute of Limitations has not run on KCPA claims. Plaintiff does not object to a dismissal without prejudice. “It Is THEREFORE by the Court Ordered that the above captioned case is hereby dismissed for lack of prosecution.” In September 2000, Bryan filed on Roy s behalf a petition alleging violations of the KCPA against Corinthian. In November 2000, Corinthian’s motion to dismiss was granted on the ground that the KCPA claims were untimely. On June 20, 2001, the malpractice screening panel filed its opinion, which concluded: “Base[d] upon the materials furnished and submitted to the panel, the panel voted unanimously that it was unable to determine that Mr. Roy’s defenses and counterclaims would have resulted in either a defense to the foreclosure action or a collectable judgment in his favor. Based upon these inabilities, the panel is unable to conclude that a causal relationship exists between the deviations from the standard of care by Ms. Young and any ultimate claimed damage. “The panel therefore finds unanimously in favor of Defendant Candis L. Young.” On July 19,2001, this action was filed. The district court granted summary judgment in favor of Young on the ground that the legal malpractice and KCPA claims were time barred. The district court also denied Roy’s motion for partial summary judgment on the question whether Young breached a duly of care. We first consider if Roy’s legal malpractice claim was time barred. Where facts are not in dispute, appellate review of an order regarding summary judgment is de novo. Duarte v. DeBruce Grain, Inc., 276 Kan. 598, Syl. ¶ 1, 78 P.3d 428 (2003). Roy’s July 2001 petition in the present case contained two counts — negligence and violations of the KCPA. The district court concluded that both causes of action were time barred. The district court determined that the present case “is essentially the same case as the action filed pro se on May 7, 1999” and reasoned, summarized as follows: • Actions for negligence are governed by K.S.A. 60-513, the 2-year statute of limitations. Corinthian’s motion for summary judgment was granted on May 8, 1997. Thus, a legal malpractice action based on Young’s failure to file a timely and appropriate response to the motion for summary judgment had to be filed no later than May 8, 1999. • On May 7, 1999, Roy filed his pro se petition against Young, but it was dismissed for lack of prosecution on August 30, 2000. K.S.A. 60-518 provides that a plaintiff may commence a new action within 6 months of a failure of a timely petition for reasons other than on the merits. The present action was not filed within 6 months of the dismissal of Roy s pro se petition for lack of prosecution. Thus, K.S.A. 60-518 did not apply. • K.S.A. 60-3509 provides: “In those cases before a screening panel which have not been formalized by fifing a petition in a court of law, the fifing of a memorandum requesting the convening of a screening panel shall toll any applicable statute of limitations and such statute of limitations shall remain tolled until 30 days after the screening panel has issued its written recommendations.” Roy’s case before a screening panel had been formalized by his fifing the pro se petition. Thus, K.S.A. 60-3509 did not apply. • Actions for violations of the KCPA are governed by K.S.A. 60-512(2), the 3-year statute of limitations. Roy “learned of the alleged misconduct on or about June 16,1997,” when Kuhl advised him that no motion to reconsider the entry of summary judgment in favor of Corinthian had been filed, contrary to what Roy had been told by Young. Thus, an action based on Young’s failure to file a timely and appropriate response to the motion for summary judgment had to be filed on or about June 16, 2000. The petition in this case was filed on July 19, 2001. On appeal, Roy makes no argument with regard to the district court’s decision that the KCPA count was time barred. An issue not briefed by an appellant is deemed waived or abandoned. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 884, 9 P.3d 1251 (2000). Roy argues with regard to his negligence count that K.S.A. 60-3509, which tolls any applicable statute of limitations, applied to toll K.S.A. 60-518 so that he had 30 days after the malpractice screening panel opinion was issued to file the present action. In other words, he treats the saving statute, 60-518, as a statute of limitations. It appears that his argument is in response to Young’s contention that Roy’s claim was time barred so that he could not benefit from the tolling provision of 60-3509 unless Roy refiled his petition pursuant to 60-518 within 6 months of its dismissal. In other words, Young treats 60-518 as a statute of limitation and, by doing so, would create a “Catch-22” for Roy by requiring him to refile in order to get the benefit of 60-3509 when, according to Young, it is not available when a petition is on file. K.S.A. 60-518 is a saving statute. It saves an action that was originally timely filed, dismissed, and then refiled within 6 months of dismissal regardless of whether the limitation period had expired in the meantime. Gard and Casad, 5 Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-518, p. 53 (4th ed. 2003). “The effect of [K.S.A. 60-518], if the action has been started in time, is to toll the operation of the statute of limitations during the pen-dency of the action and for six months after the action has ceased to pend for any reason other than a determination on the merits.” Gard and Casad, 5 Kansas Law and Practice, Kansas C. Civ. Proc. Annot. § 60-518, p. 52. K.S.A. 60-518 tolls the operation of a statute of limitations; it is not a statute of limitations. In Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 307-11, 75 P.3d 1212 (2003), this court considered the effect of K.S.A. 60-515, which applies to extend the limitations period for persons under a legal disability while the statute of limitations is running. K.S.A. 60-515(a) states in part: “[I]f any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person’s natural life, such person shall be entitled to bring such action within one year after the person’s disability is removed . . . .” Smith was involved in a vehicle accident with a taxi owned by Yell Bell on March 1, 2000. Her 18th birthday was October 22, 2000. The district court granted defendants’ motion to dismiss Smith’s suit on the ground that the statute of limitations, K.S.A. 60-515(a) had expired on her 19th birthday. This court reversed, reasoning that 60-515 is a tolling statute intended by the legislature to extend the statute of limitations for persons under a legal disability rather than to shorten the limitations period. The Smith court concluded that “the district court erroneously interpreted K.S.A. 60-515 to shorten the statute of limitations. K.S.A. 60-515 applies to extend the statute of limitations for persons under a legal disability while the statute of limitations is running. If a person does not need to extend the statute of limitations, he or she need not invoke the protection K.S.A. 60-515 offers.” 276 Kan. at 310. K.S.A. 60-518, like K.S.A. 60-515, is a tolling statute that may be invoked to extend a statute of limitations but may not be applied to shorten a limitations period. In the present case, Roy did not invoke the protection K.S.A. 60-518 offers by refiling his petition within 6 months of its dismissal. Thus, the district court correctly concluded that K.S.A. 60-518 has no application in the present case. The remaining question is whether K.S.A. 60-3509 applies in the circumstances of this case. There are no reported cases citing the statute. In Martindale v. Tenny, 250 Kan. 621, 629, 829 P.2d 561 (1992), the court noted that the provisions of K.S.A. 60-3501 et seq. are, for all practical purposes, identical to the provisions of K.S.A. 65-4901 et seq., which apply to medical malpractice screening panels. Compare K.S.A. 60-3509 and K.S.A. 65-4908. In addition, K.S.A. 60-3506, which provides that “[i]f one or more of the parties rejects the final determination of the screening panel, the plaintiff may proceed with the action in the district court” is substantively identical to K.S.A. 65-4905, which provides that “[i]n the event that one or more of the parties rejects the final determination of the screening panel, the plaintiff may proceed with the action in the district court.” With regard to the interplay of K.S.A. 65-4905 and K.S.A. 65-4908, the court stated in Martindale: “K.S.A. 65-4905 contemplates there will be no formal court action once a screening panel has been requested and K.S.A. 65-4908 tolls any applicable statute of limitations until thirty (30) days after the screening panel has issued its written recommendations.’ Thus the act contemplates that no formal court action should be filed, or if an action has been filed that it be held in abeyance, until the parties have exhausted the screening panel procedure.” 250 Kan. at 630-31. The holding of Martindale was that the enactment of a statute abrogating vicarious liability of health care providers did not cut off vicarious liability claims that had not been court filed but were pending before screening panels. 250 Kan. at 631-33. Thus, the court’s statement that an action already commenced will be held in abeyance by K.S.A. 65-4908 during the pendency of the screening panel procedure was not necessary to its holding. The court’s statement, however, is sound. The interpretation of a statute is a question of law, and an appellate court’s review is unlimited. The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs. As a general rule, statutes should be interpreted to avoid unreasonable results. State v. Manbeck, 277 Kan. 224, 225-27, 83 P.3d 190 (2004). This court is not bound by the district court’s interpretation of a statute. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). K.S.A. 60-3509 provides that the statute of limitations will be tolled by the filing of a request for a screening panel “[i]n those cases before a screening panel which have not been formalized by filing a petition in a court of law.” The district court interpreted this quoted phrase as restricting the statute’s tolling benefit to cases that had not been filed in court. A more sensible and reasonable construction, however, is that the legislature’s intent in framing the statute as it did was to toll the statute of limitations for cases that had not been filed in court because without a tolling mechanism the limitations period might well run during the pendency of the screening panel procedure. On the other hand, where a case had been filed in court before a screening panel was requested, the running of a limitations period would not be an issue during the pendency of the screening panel procedure. With the limitations problem of the unfiled cases in mind, the legislature worded the statute to extend the limitations period where its running during the pendency of the screening panel procedure might bar a plaintiff s claim. This interpretation was expressed by a panel of the Court of Appeals that included now Justice Davis in White v. VinZant, 13 Kan. App. 2d 467, 471-73, 773 P.2d 1169 (1989). The Court of Appeals considered K.S.A. 65-4908 and stated that it “limits the circumstances in which the tolling provision applies to those cases ‘before a screening panel which have not been formalized by filing a petition in a court of law.’ Obviously, tolling of the statute of limitations would not be necessary in those cases before a screening panel in which a petition has already been filed in district court.” 13 Kan. App. 2d at 472. The parties agree that the intent of the legislature in enacting the screening panel statutes was to provide for resolution of many malpractice claims without the expense and delay of litigation. Young contends that the procedure followed by Roy, i.e., filing his petition before requesting a screening panel, causes the expense and delay the legislature sought to avoid and, for this reason, the legislature intended to deprive him of the benefit of the tolling provision. Young’s assertion that a formalized case causes litigation expenses and delay is not supported by case law or the circumstances in the present case. As previously indicated, the Martindale court stated that “K.S.A. 65-4905 contemplates there will be no formal court action once a screening panel has been requested,” and K.S.A. 60-3906 is virtually identical to K.S.A. 65-4905. In the present case, the request for a malpractice screening panel was filed less than 60 days after Roy filed his pro se petition and the petition was later dismissed because it had not been prosecuted. The fundamental rule of statutoiy construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). In ascertaining that intent, we need to consider and construe the provisions of K.S.A. 60-3501 through 60-3509 in pari materia. The legislature’s intent in creating the screening panel procedure was to have claimants submit their malpractice claims for resolution, or at least screening, without the expense and delay of litigation. K.S.A. 2003 Supp. 60-3502 provides that a party may request a screening panel when a legal malpractice claim is pending in district court or when it is not. For the latter, the legislature provided the tolling benefit of K.S.A. 60-3509 to preserve claims during the pendency of the screening panel procedure. If a district court action is pending, it is stayed pending the exhaustion of the screening panel procedures. Roy’s legal malpractice claim was not pending in district court on June 20, 2001, the date the screening panel’s opinion was filed. The purpose of the screening panel enactment was satisfied in the circumstances of the present case, and Roy was entitled to the protection of the tolling provision. The district court erred in granting summary judgment in favor of Young. We next consider Roy’s argument that the district court erred in denying his motion for partial summary judgment on the issue of Young’s duty and breach of duty. The order denying Roy’s motion for partial summary judgment was not a final judgment as defined by K.S.A. 2003 Supp. 60-254(a). However, it is reviewable by this court as part of Roy’s appeal of the summary judgment granted to Young, which was a final order. See K.S.A. 60-2102(a)(4). As Young points out, a factual basis for the entry of partial summary judgment was not provided in Roy’s motion, which contains enumerated paragraphs of proposed facts with almost no references to where the facts may be verified in the record. In their response to the motion for partial summary judgment, Young controverts nearly all of Roy’s proposed uncontroverted facts on the ground that Roy failed to comply with Supreme Court Rule 141(a) (2003 Kan. Ct. R. Annot. 191), which requires precise references to the record. On appeal, Roy argues that Young cannot controvert most of the enumerated paragraphs because Young admitted them in their answer. If the source of the proposed facts was Young’s admitting allegations, Roy easily could have provided the record references to the district court and to this court, but he did neither. Although the district court declined to grant Roy’s motion for partial summary judgment for more nebulous reasons, it clearly could have denied the motion for Roy’s failure to comply with Rule 141(a). McCullough v. Bethany Med. Center, 235 Kan. 732, Syl. ¶ 1, 683 P.2d 1258 (1984) (superseded by statute on other grounds). Affirmed in part, reversed in part, and remanded for further action.

The opinion of the court was delivered by Allegrucci, J.: Jamie Stevens was convicted by a jury of attempted manufacture of methamphetamine, possession of ephedrine or pseudoephedrine with the intent to use it to manufacture methamphetamine, and possession of drug paraphernalia with the intent to use it to manufacture methamphetamine. The juiy found him not guilty of manufacture of methamphetamine. Stevens was sentenced to 152 months’ imprisonment for attempted manufacture of methamphetamine, 11 months for possession of ephedrine or pseudoephedrine, and 11 months for possession of drug paraphernalia, with a controlling sentence of 152 months. Stevens appealed his convictions and sentence (Case No. 89,656). The State cross-appealed his sentence for possession of ephedrine or pseu-doephedrine (Case No. 89,603). The appeals were consolidated for purposes of argument and decision under Case No. 89,603, Stevens was designated appellant/cross-appellee, and the State was desig nated appellee/cross-appellant. The court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c). Stevens raises the following issues on appeal: 1. Are the charges of attempted manufacture of methamphetamine and possession of ephedrine or pseudoephedrine multiplici-tous? 2. Are the charges of attempted manufacture of methamphetamine and possession of drug paraphernalia with the intent to manufacture methamphetamine multiplicitous? 3. Are the charges of possession of ephedrine or pseudoephed-rine and possession of drug paraphernalia with the intent to manufacture methamphetamine multiplicitous? 4. Should the trial court have instructed the juiy that possession of drug paraphernalia with the intent to manufacture methamphetamine is a lesser included offense of attempted manufacture of methamphetamine and manufacture of methamphetamine? 5. Was Stevens denied the right to a unanimous jury verdict on his conviction for possession of drug paraphernalia with the intent to manufacture methamphetamine? 6. Was Stevens deprived of a fair trial by cumulative errors? 7. Was it error for the trial court to sentence Stevens for a drug severity level 1 felony for attempted manufacture of methamphetamine? The State’s cross-appeal raises the following issue: 1. Did the trial court err in sentencing Stevens to a level four drug felony for possession of ephedrine or pseudoephedrine? FACTS On January 31, 2002, Sheriff s Deputy Corey Graber went up to the door at 1215 East Avenue A in Hutchinson to investigate a reported domestic situation. As he approached the door, he heard the voices of a male and female inside the house. The woman was Anita Green, who the deputy had been looking for. She was taken into custody The man Graber was looking for, Vernon Walters, was not there, but Stevens was. Because Graber knew that there were several outstanding arrest warrants for Walters, he asked Stevens if Walters or anyone else was in the residence and Stevens said no. Graber asked if he could come in and look around. Saying it was not his house, Stevens allowed Graber to come in. As soon as he entered the house, Gra-ber noticed a chemical odor. He identified the smells of ether and lithium, which are used in manufacturing methamphetamine. Then he saw a third person in the house, Brian Green. Graber made a quick sweep through the house to make sure no one else was there. In the bathroom, he noticed a container with four dirty spoons in it and a cotton ball with one of the spoons. He knew that spoons and cotton sometimes are used for injecting methamphetamine. In a bedroom, he saw an unzipped gray duffel bag that contained a toothbrush and syringe in a glass jar. Graber left the house to get a search warrant. He and officers in the drug unit returned to search the house pursuant to the warrant. Near the east wall of the living room, they found a black bag containing Coleman fuel, starter fluid, glass jars, plastic bowls, a wooden spoon, coffee filters, rubber gloves, rock salt, small plastic baggies, rubber tubes, and paper funnels. All the items were things that may be used in the manufacture of methamphetamine. Near the west wall of the living room, they found starter fluid, a plastic container, a plastic spoon, a plastic bowl, and rubber tubing. On the floor in the living room, more items were found that are consistent with the manufacture of methamphetamine — glass and plastic Tylenol bottles with crushed pills, a small plastic container with crushed pills, a 2-quart bottle with clear liquid, and a metal box containing three peeled lithium battery casings. From a coat that was on a chair in the living room, the officers recovered a bag containing 15 peeled and 5 unpeeled lithium batteries, three bags containing powder, a fighter, a Swisher Sweets pack, a leather case, a pocketknife, and a glove. In a bedroom, a gray bag was found that contained two. plastic jars and one glass with a toothbrush and syringe in it, starter fluid, and a razor blade. Also in the bedroom they found a blue sack that contained Epsom salt and Coleman fuel. A cup of rock salt was found by the bathtub. Also in the bathroom they found spoons, a broken and burnt light bulb, a gassing generator with tubing, a plastic container of rock salt, a bag of rock salt, and tin foil. Graber described how the gassing generator could be used with rock salt and sulfuric acid in the manufacture of methamphetamine. Four fingerprints matching those of Stevens were found on various seized items. Stevens testified that he had been to Walters’ house several times before to buy speed or methamphetamine. When Stevens arrived on Januaiy 31, Walters let him in, and then Walters said that he was going to leave to get some juice but that he would be right back. Stevens testified that while he was alone in the living room, he began looking around for drugs. Then, after Anita Green was taken into custody, he looked for drugs in among the things in the bedroom. Detective Harcrow testified that during the investigation Stevens’ brother identified the coat from the living room chair as belonging to Stevens. Stevens’ brother testified at trial that he told the detective he was not sure if the coat belonged to Stevens. Stevens admitted during questioning that his nickname was Batman. The police had been getting a lot of intelligence information about someone called Batman, who was allegedly an anhydrous ammonia thief. APPEAL Stevens first contends that the charges of attempted manufacture of methamphetamine and possession of ephedrine or pseu-doephedrine are multiplicitous because the possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine is an overt act for the purpose of establishing attempted manufacture of methamphetamine. According to Stevens, possession therefore is a lesser included offense of attempted manufacture. He relies on State v. Martens, 273 Kan. 179, 42 P.3d 142, modified 274 Kan. 459, 54 P.3d 960 (2002), and State v. Bowers, Case No. 87,239 filed July 25, 2003, an unpublished opinion of the Court of Appeals. Stevens attached a copy of the Bowers opinion as Appendix A to his brief pursuant to Rule 7.04(f)(2)(iii) (2003 Kan. Ct. R. Annot. 47). In Martens, the trial court convicted the defendant of both attempted manufacture and actual manufacture of methamphetamine, and this court remanded for determination of which offense he was guilty. In Bowers, the case was reversed on another issue. The Court of Appeals added that upon retrial the jury was to be instructed on possession of pseudoe-phedrine as a lesser included offense of the manufacture of methamphetamine rather than as a separate charge. The State contends that State v. Campbell, 31 Kan. App. 2d 1123, 78 P.3d 1178 (2003), governs this case. In State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2004), we affirmed the Court of Appeals’ holding that convictions on the charge of manufacture of methamphetamine and possession of ephedrine or pseudoephed-rine are not multiplicitous. Because the elements of attempted manufacture of methamphetamine and manufacture of methamphetamine differ, the holding of Campbell is not on point. The parties agree that whether convictions are multiplicitous is a question of law subject to unlimited review. See State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001). Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. State v. Fritz, 261 Kan. 294, Syl. ¶ 3, 933 P.2d 126 (2000). The harm of multiplicity is that it creates the potential for multiple punishments for a single offense. In Robbins, the court stated: “In examining a multiplicity issue, we are mindful that a single offense may not be divided into separate parts and a single wrongful act may not generally furnish the basis for more than one criminal prosecution; offenses do not merge where each offense requires proof of a fact not required in proving the other; and offenses do not rise out of a single wrongful act where they are committed separately and severally at different times and places.” 272 Kan. at 172 (citing State v. Mincey, 265 Kan. 257, 265, 963 P.2d 403 [1998]). K.S.A. 21-3107(2) was amended in 1998 so that the current statute “in essence mirrors the common-law elements test, thereby leaving it as the only remaining test for multiplicity.” State v. Schuette, 273 Kan. 593, 601, 44 P.3d 459 (2002). K.S.A. 2003 Supp. 21-3107(2) provides: “(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is: (a) A lesser degree of the same crime; (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged; (c) an attempt to commit the crime charged; or (d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).” The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous. Fritz, 261 Kan. 294, Syl. ¶ 4. In the trial court, the defendant based several motions on the argument that some of the counts of the complaint were multipli-citous. At a hearing on defendant’s posttrial motions, the trial court said simply, “I don’t think these things merge.” The jury was instructed that the elements of attempted manufacture of methamphetamine are: (1) Defendant performed an overt act toward the commission of the crime of manufacture of a controlled substance; (2) he did so with the intent to commit the crime of manufacture of a controlled substance; and (3) he failed to complete commission of the crime of manufacture of a controlled substance. The jury was further instructed that “[a]n overt act necessarily must extend beyond mere preparation made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the complete offense. Mere preparation is insufficient to constitute an overt act.” The bag of ephedrine or pseudoephedrine that was found in Stevens’ coat was a powdered substance that had been ground from decongestant tablets. In closing argument, the prosecutor told the jurors that removal of Sudafed pills from their packaging was the overt act that marked the shift from preparation to the process of manufacturing methamphetamine. He stated: “[C]learly your first overt act is when they start popping those pills. It is no longer preparation. The preparation is gathering everything together. Because as you gather things together, when you get them all together, you can say .... I really think this isn’t worth it; and you turn and walk away. But once you pop that first pill out and you empty those Sudafed box[es] of their pills, once you grind them up, you have started the process. And if you started the process, then you’ve attempted to manufacture methamphetamine.” Whether this court agrees with the prosecutor’s characterization of the overt act or not, the jury deliberated the question of Stevens’ guilt on that basis. The jury was instructed that, in order to establish the charge of possession of ephedrine or pseudoephedrine, the State had to establish that Stevens knowingly possessed ephedrine or pseudoephedrine with intent to use the product as a precursor to any illegal substance. The jury also was instructed that, in order to establish the charge of attempted manufacture of methamphetamine, the State had to show an overt act toward the manufacture of methamphetamine, done with the intent to manufacture, and failure to complete the manufacture. The prosecutor told the jury that Stevens’ possession of ephedrine or pseudoephedrine in the form of ground-up Sudafed was the evidence of an overt act. In other words, in the circumstances of this case, the State’s proof of possession of ephedrine or pseudoephedrine with intent to use it to manufacture methamphetamine is the same as its proof of the first two elements of attempted manufacture of methamphetamine. Thus, the possession offense does not require proof of an element not necessary to prove the attempted manufacturing offense. The attempted manufacture and possession charges are mul-tiplicitous in the circumstances of this case. Stevens’ conviction and sentence for possession of ephedrine and pseudoephedrine with intent to use it to manufacture methamphetamine should be set aside. Stevens argues that possession of drug paraphernalia with intent to manufacture methamphetamine and attempted manufacture of methamphetamine are multiplicitous charges stemming from a single act. The question is whether each offense requires proof of an element not necessaiy to prove the other offense. If so, they are not multiplicitous; if not, they are. See Fritz, 261 Kan. 294, Syl. ¶ 4. With regard to the possession of drug paraphernalia offense, the prosecutor told the jurors: “[A]ll of the testimony that you have heard indicates that the items that were . . . possessed in the house were for the manufacture of methamphetamine. . . . The coffee filter, the gloves, the lithium batteries, the . . . tubing, the gas generator, all those things are paraphernalia to be used to manufacture methamphetamine.” With regard to the attempted manufacture of methamphetamine offense, the prosecutor argued to the jury that peeling the lithium batteries, like removing Sudafed tablets from the packaging, constituted an overt act: “The lithium batteries, that’s another indication of an overt act. What is somebody going to do with a peeled lithium battery? You can’t really stick any of it in your camera. The whole purpose of peeling the battery is to finish the process. So clearly, again, this crime has been committed.” In 2002, the legislature amended K.S.A. 65-7006 to add lithium metal as a substance whose possession and usage to manufacture a controlled substance was criminalized. L. 2002, ch. 155, sec. 4. That action postdates the time of Stevens’ case and is therefore inapplicable here. In its brief on appeal, the State’s argument is that peeling the lithium batteries was an overt act and that it was separate from possession of drug paraphernalia. In its brief, the State asserted: “The defendant also possessed batteries that had been peeled to remove lithium strips from them for the purpose of manufacturing methamphetamine. [State v. Sheikh, 30 Kan. App. 2d 188, 41 P.3d 29 (2001),] would apply to these facts as well to indicate that these actions are overt acts toward the perpetration of the crime of manufacture of methamphetamine. The record is replete with overt acts committed toward the crime of manufacture of methamphetamine, and to suggest that the only overt act that the jury relied upon was the possession of the drug paraphernalia is ludicrous.” It was the prosecutor, however, who included the lithium batteries among the items of drug paraphernalia in closing argument. The Sheikh opinion, (authored by now Justice Gemon), according to the State, stands for the proposition that peeled batteries, like Sudafed removed from its packaging, are evidence of an overt act. Sheikh was a State’s appeal from dismissal of a complaint against Sheikh for attempted manufacture of methamphetamine and possession of drug paraphernalia. He had a backpack contain ing, among other things, clear plastic tubing, lithium batteries, starting fluid, and pills that had been removed from 14 boxes of cold tablets (48 pills per box), and he admitted purchasing the items to use in making methamphetamine. The State contended that Sheikh’s act “of opening 14 boxes of pseudoephedrine and removing approximately 672 pills from their bubble packs, plus the act of putting these and other items in his vehicle, along with a firearm, and driving from Lawrence to Great Bend, constitute overt acts and not just preparation.” 30 Kan. App. 2d at 190. After noting that an overt act is not precisely defined, the Court of Ap-, peals concluded that the charges should not have been dismissed. 30 Kan. App. 2d at 191. Here the prosecutor told the jurors that the peeled lithium batteries were the evidence of an overt act toward the manufacture of methamphetamine. The jury was given no instruction inconsistent with the prosecutor’s argument. In these circumstances, the State’s proof of possession of peeled lithium batteries with intent to use diem to manufacture methamphetamine is the same as its proof of the first two elements of attempted manufacture of methamphetamine. Thus, the possession offense, when limited to possession of the peeled lithium batteries, does not require proof of an element not necessary to prove the attempted manufacturing offense. The possession of drug paraphernalia offense, however, was not limited to the peeled lithium batteries. According to the prosecutor’s closing argument, the paraphernalia also included a coffee filter, gloves, tubing, and a gas generator, in addition to the lithium batteries. The prosecutor did not argue that possession of these items of paraphernalia constituted an overt act toward manufacture of methamphetamine. The offense of possession of paraphernalia requires proof of the element of possession of the drug paraphernalia that is not necessary to prove attempted manufacture. The offense of attempted manufacture requires proof of the element of an overt act, which is not necessary to prove the possession of drug paraphernalia offense. The offenses of attempted manufacture of methamphetamine and possession of drug paraphernalia (not including the peeled lithium batteries) are not mul-tiplicitous. Stevens next argues that possession of ephedrine or pseudo-ephedrine with intent to manufacture methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine are multiplicitous charges stemming from a single act. In view of our determination that Stevens’ conviction and sentence for possession of ephedrine and pseudoephedrine with intent to use to manufacture methamphetamine should be set aside, we need not address this argument. Stevens also argues that the trial court should have instructed the juiy that possession of drug paraphernalia with the intent to manufacture methamphetamine is a lesser included offense of attempted manufacture of methamphetamine and manufacture of methamphetamine. Stevens was acquitted of the manufacture of methamphetamine. Whether the trial court should have instructed the jury on a'lesser included offense of manufacture of methamphetamine is moot. He argues that the possession of drug paraphernalia is a lesser included offense of attempted manufacture of methamphetamine. Whether a crime is a lesser included offense is a question of law over which an appellate court exercises unlimited review. State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000). Because Stevens’ trial counsel did not request that the jury be instructed on possession of drug paraphernalia as a lesser included offense of attempted manufacture of methamphetamine, the court will review only for clear error. See State v. Saiz, 269 Kan. 657, Syl. ¶ 1, 7 P.3d 1214 (2000); K.S.A. 2003 Supp. 22-3414(3). Stevens’ argument seems to be that possession of drug paraphernalia is a lesser included offense of attempted manufacture of methamphetamine because the possession offense is a crime where all elements of the lesser crime are identical to some of. the elements of the crime charged, as indicated in K.S.A. 2003 Supp. 21-3107(2)(b). In the discussion of Issue 2, we saw that possession of drug paraphernalia (other than the peeled lithium batteries) and attempted manufacture of methamphetamine are not multiplici-tous offenses because each offense requires proof of an element not necessary to prove the other offense. Thus, all elements of possession of drag paraphernalia are not identical to some of the elements of attempted manufacture of methamphetamine. Stevens next argues that he was denied the right to a unanimous jury verdict on his conviction for possession of drag paraphernalia with the intent to manufacture methamphetamine. There was evidence of possession of drag paraphernalia of two different kinds — for use in manufacturing a controlled substance and for use in using a controlled substance. Possession of drag paraphernalia with intent to use it to manufacture a controlled substance is a severity level 4 felony. K.S.A. 65-4152(a)(3) and (c). Possession of drag paraphernalia for introducing a controlled substance into the human body is a misdemeanor. K.S.A. 65-4152(a)(2) and (b). Stevens characterizes this as a multiple acts case and contends that, because there was evidence that would have supported his conviction of either offense, a unanimity instruction was necessary. In State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994), the court discussed multiple acts cases: “ ‘In multiple acts cases, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ 110 Wash. 2d at 410.” At trial, Stevens neither requested a unanimity instruction nor objected to the lack of one. Hence, the court reviews for clear error. State v. Banks, 273 Kan. 738, 743-44, 46 P.3d 546 (2002). In State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 (2001), the court established a harmless error analysis to be applied when it is contended that a unanimity instruction should have been given: “[T]he first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theoiy from a single incident to two separate incidents. Incidents are factually separate when the independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give a unanimity instruction was harmless beyond a reasonable doubt with respect to all acts.” Examination of the record reveals no possibility that there was juiy confusion about the possession of drug paraphernalia offense. Although there was testimony by police officers about a number of items of paraphernalia that were recovered, the prosecuting attorney singled out only a few of them during closing argument when he told the jury about the evidence that would support the possession of drug paraphernalia count. In telling the jury what evidence supported the charge of possession of drug paraphernalia with intent to use it to manufacture methamphetamine, the prosecutor said: “The coffee filter, the gloves, the lithium batteries, the tubing, the gas generator, all those things are paraphernalia to be used to manufacture methamphetamine.” The Státe effectively elected the particular criminal act upon which it relied for conviction. Stevens contends he was deprived of a fair trial by cumulative errors. His position is that, if there are errors that are harmless individually, they ought to be aggregated in order to determine whether their cumulative effect on his trial was so harmful as to require a new trial. On this subject, the court has stated that trial errors, when considered collectively, may require reversal of a defendant’s conviction. State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. But no prejudicial error may be found if the evidence is overwhelming against the defendant. 271 Kan. at 1022. Stevens contends that the errors in Issues 4 and 5 constitute cumulative error. Since we have found no trial errors as to Issues 4 and 5, Stevens’ argument has no merit. Stevens finally argues that his sentence for a severity level 1 offense for the crime of attempted manufacture of methamphetamine was illegal. He challenges his sentence for the first time on appeal. In the present case, the State does not question the court’s jurisdiction to consider the sentencing issue. The arguments made by Stevens are not very fully developed. Citing K.S.A. 22-3504(1), he asserts that his sentence is illegal. The statute provides that “[t]he court may correct an illegal sentence at any time.” This issue was recently raised on appeal in State v. Barnes, No. 89,628, an unpublished Court of Appeals opinion filed November 7, 2003. Barnes was sentenced for aiding and abetting the manufacture of methamphetamine as a drug severity level 1 felony pursuant to K.S.A. 65-4159(a) rather than a drug severity level 3 felony pursuant to K.S.A. 65-4161(a). Like Stevens, Barnes did not raise the sentencing issue before the trial court, but on appeal asserted her sentence was “illegal.” We concluded her sentence was not “illegal.” Such a conclusion, however, does not deprive this court of jurisdiction because K.S.A. 21-4721(e)(3) provides: “In any appeal, the appellate court may review a claim that . . . the sentencing court erred in ranking the crime severity level of the current crime.” In addition, State v. Bell, 258 Kan. 123, 126-28, 899 P.2d 1000 (1995), cited by Stevens, considered whether an appellate court can consider an issue neither raised in the trial court nor raised by the parties on appeal. The court concluded that the particular issue was not properly before the appellate court in Bell, but noted that an appellate court does have power to consider an issue that was not raised by the parties in the trial court or on appeal “in exceptional circumstances where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights.” 258 Kan. 123, Syl. The court quoted the following excerpt from State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982), for instances where it would be appropriate for an appellate court to consider an issue sua sponte, that is, exceptions to the general rule: ‘“(1) Cases where the newly asserted theoiy involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; “ ‘(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and “ ‘(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.’ ” 258 Kan. at 126. The substantive issue of the propriety of the sentence is controlled by recent opinions in State v. Layton, 276 Kan. 777, 80 P.3d 65 (2003), and State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). Stevens has two theories why his sentence for attempted manufacture of methamphetamine in violation of K.S.A. 65-4159 must be vacated. First, he contends that the penalty provision of K.S.A. 65-4127c applies to a violation of K.S.A. 65-4159. In Layton, the court held that “[t]he penalty provision of K.S.A. 65-4127c has no application to a violation of K.S.A. 65-4159. The only penalty provision applicable to a violation of K.S.A. 65-4159 is contained in that section.” 276 Kan. 777, Syl. ¶ 2. Second, he contends that the penalty provision of K.S.A. 65-4161 applies to a violation of 65-4159 because the two sections criminalize the same conduct but 65-4161 carries a lesser penalty and is the more specific statute. In McAdam, the court held, in the particular facts of that case, that 65-4161(a) and 65-4l59(a) are identical so that McAdam could be sentenced only under the lesser penalty provision of 65-4161(a). 277 Kan. at 145. McAdam was convicted of conspiracy to unlawfully manufacture methamphetamine. In order to establish the crime, the State had to show that McAdam agreed with at least one other person to manufacture methamphetamine, that he entered into die agreement with the intent to manufacture methamphetamine, and that he or another party to the agreement committed an overt act in furtherance of the agreement. The State’s proof of an overt act was the attempted theft of anhydrous ammonia, an ingredient of methamphetamine. K.S.A. 65-4159(a) provides: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” Methamphetamine is a controlled substance. K.S.A. 65-4101(e); K.S.A. 65-4107(d)(3). The penalty for violation of 65-4159(a) is a drug severity level 1 felony. K.S.A. 65-4159(b). K.S.A. 65-4161(a) provides: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and(d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.” Methamphetamine is designated a stimulant in 65-4107(d)(3). The elements of 65-4159(a) and 65-4161(a) are not necessarily identical. For example, the elements of a violation of 65-4161(a) • could be that the defendant sold opium. The elements were identical, however, as applied to the circumstances in McAdam. In the present case, as in McAdam, the manufacture of methamphetamine was the objective, and an overt act was committed toward that end. The elements of 65-4159(a) and 65-4161(a) are identical in the circumstances of this case. For this reason and in accord with the reasoning and result of McAdam, Stevens may be sentenced only under the lesser penalty provision of K.S.A. 65-4161(a). CROSS-APPEAL The State cross-appeals the sentencing court’s decision that Stevens’ conviction for possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine should be classified as a drug severity level 4 felony rather than a drug severity level 1 felony pursuant to K.S.A. 65-7006. Since we have set aside Stevens’ conviction and sentence for possession of ephedrine or pseudo-ephedrine with intent to manufacture methamphetamine, the State’s cross-appeal is moot. Stevens’ conviction and sentence for possession of drug paraphernalia with the intent to manufacture methamphetamine is affirmed. Stevens’ conviction for possession of ephedrine or pseu-doephedrine with intent to manufacture methamphetamine is reversed and the sentence vacated. The sentence for attempted manufacture of methamphetamine is vacated and remanded for resentencing as a drug severity level 3 felony as provided for a violation of K.S.A. 65-4161(a). Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded for resentenc-ing.

The opinion of the court was delivered by Harvey, J.: This was an action for damages for personal injuries. A jury trial resulted in a general verdict for defendant. Plaintiff has appealed and contends the trial court erred in overruling her motion for a new trial, in the giving of. certain instructions, and in the admission of certain evidence. The general facts may be summarized as follows: Paul Fotopoulos, a native of Greece but a naturalized American citizen, has lived in Newton more than twenty years. He was engaged in the restaurant business, operating the Sunflower Café. His family consisted of his wife and three children — a daughter Constance, about twelve years of age; a son Taki, about ten; and the plaintiff, about five. Their residence was in an apartment on the second floor, .above the café which he operated. Defendant is a utility company furnishing gas at Newton. In the fall of 1936 Fotopoulos leased from the defendant a gas heater suitable for the apartment, for a monthly rental, except for the summer months. This was installed by the defendant and used until the spring of 1937, when it was disconnected and stored for the summer in a storage room of the apartment. On October 15, 1937, Mr. Fotopoulos requested defendant to again connect the heater, and defendant did so. On the evening of January 25,1938, plaintiff’s mother took her to a beauty contest at a picture show. Her mother had her dressed nicely in a real light dress. She was selected as one of the little girls to come back the next night. After the show they went home. It was about eleven o’clock and a cold night. When they went into the apartment the little girl stood by the gas heater while her mother went in the next room to lay off her wraps. She heard the little girl scream. Her dress was on fire. She was quite severely burned. On the front of the heater was a door which had two rows of small windows fitted with mica or isinglass. On February 8, 1938, Mr. Fotopoulos notified defendant that one of the mica windows was broken in the door of the heater. Defendant sent its men and had it repaired. The petition alleged the pertinent facts and charged defendant with negligence in this, that when the heater was reinstalled in •October, 1937, the mica was out of one of the windows; that defendant’s workmen installing the heater had their attention called to this and promised to repair it the next day, but failed to do so, and that plaintiff’s dress was ignited by the heat or flame coming through the opening where the mica was out of the window. Defendant in its answer specifically denied that the mica was out of the window when the stove was reinstalled. This became the controverted issue in the trial. Witnesses called on behalf of plaintiff tended to support the allegation that the mica was out of the window of the heater when it was reinstalled. Testimony on behalf of defendant, mainly its two workmen, Pierce and Nicodemus, who installed the heater, was to the contrary. The record tends to show some matters in connection with the testimony of some of the witnesses on behalf of plaintiff which naturally would keep their testimony from being as forceful as it might otherwise have been. Perhaps the detailed explanation by defendant’s workmen of the manner in which the heater was reinstalled was convincing to the jury. We need not detail these matters. The credibility of the witnesses and the weight to be given to their testimony was for the jury and the trial court. Upon the issue framed by the pleadings there was ample, substantial, competent evidence to support the verdict for defendant, and it has received the approval of the trial court. Several hearings were had on plaintiff’s motion for a new trial. After the first hearing the motion was sustained and a new trial granted. On defendant’s motion to reconsider that ruling it was reconsidered, the order sustaining the motion for a new trial was set aside, and the motion was denied. Upon plaintiff’s motion to reconsider that ruling the court adhered to its ruling denying the motion for a new trial and specifically approved the verdict returned by the jury, and rendered judgment for defendant. While the motion for a new trial set out most of the statutory grounds, plaintiff relied largely on newly discovered evidence, which arose in this way: Defendant’s witnesses, Pierce and Nicodemus, had testified that when the heater was reinstalled in October, 1937, and they took it from the storeroom to the sitting room, past a railing at the stairway and a piano, it was necessary to turn the heater on its side. To do that without breaking the radiants, which are fragile, they took the door off the heater, which contains the two rows of small windows fitted with mica. This is not a door that opens and closes, but is fastened on with screws and fitted airtight around the edges. They testified they took off this door, took out the radiants, turned the heater on the side to get it into the room, carefully examined the burners of the heater, saw that they were in good condition, replaced the radiants, examined the mica in the win dows of the door, found them in good condition and replaced the door, and connected the heater with the gas pipe; that they then tested it to regulate the flow of gas and saw to it that the burners and radiants were functioning properly, and that the heater was in good condition before they left it. They further testified that when they went to examine the heater on February 8,1938, they found the mica broken from one of the windows and cracked in another one; that they noticed the flame of one of the burners was red, which indicated there was a small piece of mica over the gas jet of the burner; that they then took off the door, took out the radiants and found broken pieces of mica under the radiants and near the burner; that these pieces were collected and found to be of the quantity of one of the mica windows. They were produced at the trial. After the trial experiments were made on behalf of plaintiff by placing new pieces of mica over the burner, and it was noticed that the flame was very red. Witnesses then were called who had been about the heater and given it more or less attention between the dates of January 25 and February 8 and who testified that they had not noticed any red flame of the burner. At the first hearing of the motion for a new trial the court regarded this as newly discovered material evidence, but on the later hearing concluded that there had been no diligence shown, that the evidence was only cumulative, and impeaching in character, and did not warrant the granting of a new trial. Appellant now argues that since plaintiff was a minor she should not be charged with want of diligence of her counsel or her next friend. It is argued correctly that courts always are solicitous of the rights of minor litigants, and that this is in harmony with the law.. Our statute (G. S. 1935, 60-406) provides that the action of an infant must be brought by his guardian or next friend. The law does not deem it wise to grant to a minor unlimited license to sue, but prefers he should be guided and directed by the discretion of some adult. (Sutton v. Nichols, 20 Kan. 43.) When an action is so brought, if the court deems it to be for the best interest of the minor, it has power to dismiss the action, or to substitute another as next friend of the minor, or a guardian to represent the minor. (See statute, supra.) If the minor is a defendant, the court should appoint a guardian ad litem to represent him. (G. S. 1935, 60-408.) “Such persons are considered as agents or officers of the court, their office being to represent the interest of the infant in the litigation.” (31 C. J. 1118.) But when a minor, either as plaintiff or defendant, is properly represented by an adult next friend, or guardian, the course and conduct of the trial are governed by the same rules as apply to civil actions generally (31 C. J. 1164), and the general rule is “that an infant properly represented is bound by the adjudication to the same extent that he would have been had all the parties been adults, especially in cases where the infant appears as plaintiff.” (31 C. J. 1166.) An infant has no general or absolute right to avoid a judgment or decree against him. In the absence of fraud or collusion a decree rendered for or against an infant in an action brought by him by his next friend cannot be repudiated by the infant simply because of his infancy. (31 C. J. 1169, 1178.) In Kistler v. Fitzpatrick Mortgage Co., 146 Kan. 467, 71 P. 2d 882, it was held: “A minor defendant in a civil action, properly served with summons and represented at the hearing of the case by a guardian ad litem, duly appointed, is bound by the judgment to the same extent as an adult would be bound.” The same rule applies to a minor plaintiff represented by a guardian or next friend. (See Note in 9 A. L. R. 1537.) Railway Co. v. Lasca, 79 Kan. 311, 99 Pac. 616, cited by appellant, is not in point. With respect to it, compare Perry v. Umberger, 145 Kan. 367, 371, 65 P. 2d 280. We have examined all the authorities cited by appellant on this point, but find it unnecessary to analyze or distinguish them at great length. The rule seems to be well settled that an infant, properly represented by a next friend, or a guardian ad litem, in an action at law, and with competent counsel, in the absence of fraud or conduct amounting to fraud on the part of such next friend, guardian ad litem, or counsel, is bound by the same rules of procedure as an adult litigant. In addition to the authorities previously cited, the following cases, which list is not designed to be complete, support this view: Richards v. Neault, 126 Me. 17, 135 Atl. 524; Harris v. Bigley, 136 Ia. 307, 111 N. W. 432; In re Estate of Kempthorne, 188 Ia. 70, 175 N. W. 857; Fort Worth & Denver City Ry. Co. v. Greathouse, (Tex. Civ. App.) 41 S. W. 2d 418; Kromer v. Friday, 10 Wash. 621, 39 Pac. 229; Burke v. Northern Pac. R. Co., 86 Wash. 37, 149 Pac. 335; Keller v. Ry. Co., 113 W. Va. 286, 167 S. E. 448; Byrnes v. Butte Brewing Co., 44 Mont. 328, 119 Pac. 788; Butler v. Winchester Home for Aged Women, 216 Mass. 567, 104 N. E. 451; Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. Rep. 638, 34 L. Ed. 1047. The affidavits on plaintiff’s behalf in support of the motion for a new trial did not go directly to the controverted issue framed by the pleadings and tried in the action, namely, whether the mica was out of one of the windows of the heater when it was reinstalled in October, 1937. They went to the question as to whether, between the dates of January 25 and February 8, 1938, the burner of the heater burned with a red flame. Employees of defendant had testified that when they examined the heater on February 8 they noticed that the color of the flame of one of the burners or jets was red; that this indicated a small piece of mica was on the burner where the flame came in contact with it, and when they turned off the gas and opened the heater they found a small piece of mica over one of the burners. Plaintiff’s affidavits on the motion for a new trial were by members of plaintiff’s family and employees of Mr. Fotopoulos, who had been in the room where the heater was, more or less frequently within the time in question, and who stated that they had not noticed the redness of the flame. There were also affidavits by the chief of police, the fire chief, and an inspector for an insurance company, who had made some examination of the heater, and who stated that they saw no mica on or about the burner; and plaintiff’s counsel and others conducted an experiment by getting a piece of new mica and placing it over the burner, when they noticed that it caused the flame to be red. The theory of all this was that the testimony of defendant’s employees who examined and repaired the heater on February 8 was not worthy of belief; hence, the testimony offered on plaintiff’s behalf by these affidavits tended to impeach defendant’s witnesses upon a question incidental only to the main issue in the case as framed by the pleadings and tried by the court. Normally new trials are not granted because of impeaching testimony of this character. Appellant’s counsel argue that they were surprised at this testimony about the redness of the flame on February 8 because nothing had been said about that particular thing until in the opening statement of counsel, and hence they were not prepared to meet it, although all the witnesses whose affidavits were used on the motion for a new trial were known to plaintiff’s counsel and plaintiff’s parents, or one of them who had been assisting counsel in the conduct of the case. They all lived in or about Newton, could have been subpoenaed and produced as witnesses, and some of them did in fact testify with respect to other matters. We are not greatly im pressed with this argument. The trial lasted two days. No reason appears why some one of plaintiff’s counsel could not have seen to it that these persons were subpoenaed and had them present to testify. It is more reasonable to believe that at the time counsel for plaintiff did not regard this particular thing as of any special importance. Plaintiff’s counsel were not misled as to the issues upon which the case was to be tried, for they had been framed definitely by the pleadings. More than that, several months before the trial one of plaintiff’s counsel had talked with Mr. Pierce, defendant’s principal witness, with respect to the reinstallation of the heater, and had learned the witness would testify definitely that the mica was not out of the window of the heater at that time. There is no suggestion that defense was in any way concealed, or that there was any sharp practice on either side in the conduct of the case. There was nothing in these affidavits which required the granting of a new trial, and since the trial court was satisfied with and approved the verdict returned b.y the jury, the order overruling the motion for a new trial was proper. At the trial, and before the instructions were given to the jury, the court submitted them to counsel and a recess was taken to enable counsel to examine them and to make suggestions or objections. Counsel for plaintiff made no objection to the instructions and no suggestions of amendments. Counsel for defendant objected to one or more of the instructions as prepared by the court and requested changes and additions. These objections were overruled and the requests denied. One of the grounds for plaintiff’s motion for a new trial was the giving of erroneous instructions. On the hearing of the motion for a new trial counsel for plaintiff argued that instruction No. 6 was erroneous. In this court their principal argument is that instruction No. 5 is erroneous. It is the general rule that instructions not objected to become the law of the case. (Thogmartin v. Koppel, 145 Kan. 347, 67 P. 2d 571; Stephenson v. W. R. Grimshaw Co., 147 Kan. 532, 77 P. 2d 981; Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583.) Notwithstanding that, we have examined the instructions and considered the criticism now made of them and find nothing seriously wrong with the instructions as given. ■ In the course of the trial a witness called by defendant was permitted to testify that the gas heater in question was an appliance which had been approved as not being inherently dangerous, and that in the opinion of the witness, who had had many years' experience with gas appliances, that the heater was not inherently or imminently dangerous. Appellant argues this was not a subject of expert testimony and that it went to the ultimate facts for the determination of the jury. We think the point is not well taken. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Smith, J.: This was an appeal to the district court pursuant- to G. S. 1935, 66-118c, from an order of the corporation commission. Judgment was for the commission sustaining the order. The appellants in the court below appeal to this court. The order from which the appeal was taken was one fixing minimum intrastate rates to be charged by contract motor carriers in the state. The appellants are the common carriers by rail. The proceedings were instituted pursuant to the provisions of chapter 229 of the Laws of 1933 and chapter 236 of the Laws of 1931, now appearing as G. S. 1935, 66-1,108 to 66-1,112g. Since the decision turns largely upon the interpretation to be given the above sections, they will be set out here at the outset. G. S. 1935, 66-1,108 contains, among other provisions, certain definitions in which we are interested. They are as follows: “The term ‘public motor carrier of property’ when used in this act shall mean any person who holds himself out to the public as willing to undertake for hire to transport by motor vehicle, from place to place, the property of others who may choose to employ him. (/) The term ‘public motor carrier of passengers’ when used in the act shall mean any person who holds himself out to the public as willing to undertake for hire to transport by motor vehicle, from place to place, persons who may choose to employ him. (g) The term ‘contract motor carrier of property’ when used in this act shall mean any person engaged in the transportation by motor vehicle of property for hire and not included in the term ‘public motor carrier of property’ as herein defined.” The next section provides for the exemption of certain contract motor carriers from the provisions of the act. G. S. 1935, 66-1,110, provides that public motor carriers of property or passengers shall be common carriers. Section 66-1,111 provides that certain carriers must comply with the act. G. S. 1935, 66-1,112, confers authority on the commission to license, supervise and regulate public motor carriers. G. S. 1935, 66-1,112a through 66-1,115, will be set out in full. These sections provide as follows: “Upon the filing of an application for a permit and compliance with all lawful requirements, the commission is hereby vested with power and authority to grant permits to contract motor carriers; to supervise and regulate such motor carriers for the purpose of promoting safety upon the highways and the conservation of their use; to regulate and supervise the accounts and method of operation of same; to prescribe such rules and regulations as it may deem necessary to carry out the provisions of this act; and to supervise and regulate all contract motor carriers of property or of passengers and all matters affecting-the relationship between such motor carriers and the traveling and shipping public and other carriers.” (G. S. 1935, 66-1,112a.) “The commission, upon the filing of an application for contract-carrier permit, shall fix a time and place for hearing thereon, which shall be not less than ten days after such filing. The commission shall cause notice of such hearing to be served at least five days before the hearing upon an officer or owner of every common carrier that is operating, or has applied for a certificate to operate, in the territory proposed to be served by the applicant, and on other interested parties as determined by the commission, and any such common carrier or interested party is hereby declared to be an interested party to said proceedings and may offer testimony for or against the granting of such permit. Any other interested person may offer testimony at such hearing. The commission is hereby vested with power and authority to grant or deny the permit prayed for, or to grant it for the partial exercise only of the privilege sought, and may attach to the exercise of the privilege granted by such permit such terms and conditions as in its judgment will carry out the purposes of this act. Application for such permit shall be made in writing, stating the ownership, financial condition, equipment to be used and physical property of the applicant, and contain such other information as the commission may require.” (G. S. 1935, 66-1,112b.) “That no permit issued under the authority of this act shall be subject to assignment or transfer, and no permit issued in accordance with the terms of this act shall be construed to be either a franchise or irrevocable. Every contract motor carrier of property or passengers, or private motor carrier of property, who shall cease operation and abandon his rights under the permits issued shall notify the commission within thirty days of such cessation or abandonment. Subject to any right a holder of such permit may have to engage in interstate commerce, no permit issued in accordance with the terms of this act shall be construed to be irrevocable. The commission may at any time, for good cause, suspend or revoke such permit upon five days’ notice to the grantee of any permit, and an opportunity to be heard.” (G. S. 1935, 66-1,112c.) “It is hereby declared that the business of contract motor carriers is affected with the public interest, and that the safety and welfare of the public, the preservation and maintenance of the public highways and the integrity of the regulation of common carriers require the regulation of contract motor carriers to the extent herein provided.” (G. S. 1935, 66-1,112d.) “Every contract motor earner operating in competition with one or more common earners is hereby forbidden to give or cause any undue or unreasonable advantage or preference to those whom he serves, as compared with the patrons of any public motor carrier, as that term is used in this act, or the patrons of any other common carrier or to subject the patrons of any such common carriers to any undue or unreasonable discrimination or disadvantage, or by unfair competition to destroy or impair the service or business of any public motor carrier, as that term is used in this act, or of any other common carrier, or the integrity of the state’s regulation of any such service or business; and to the end that the said commission may enforce these provisions, each such contract motor carrier shall maintain on file with the commission a statement of his charges and of such other matters as the commission may require.” (G. S. 1935, 66-1,112e.) “The commission is hereby vested with power and authority and is hereby made its duty to prescribe rules and regulations covering the operations of contract motor carriers in competition with common carriers of this state, and the commission shall prescribe minimum rates, fares and charges to be collected by such contract motor carriers.” (G. S. 1935, 66-1,112f.) “The commission is hereby vested with power and authority and it shall be its duty to issue permits to private motor earners of property, to require the filing of annual and other reports, and such additional data as may be required by the commission in carrying out the provisions of this act. The commission shall have power and authority, by general order or otherwise, to prescribe reasonable and necessary rules and regulation governing all private motor carriers of property.” (G. S. 1935, 66-1,112g.) “.All transportation charges made by any public motor carrier shall be just and reasonable.” (G. S. 1935, 66-1,113.) “It shall be unlawful for any public motor carrier to operate as a carrier of intrastate commerce within this state without first having obtained from the public service commission a certificate of convenience and necessity. The public service commission, upon the filing of application for such certificate, shall fix a time and place for hearing thereon, which shall not be less than twenty nor more than thirty days after such filing. The public service commission shall cause a copy, of such application and notice of hearing thereon to be served at least ten days before the hearing upon an officer or owner of every common carrier that is operating or has applied for a certificate to operate in the territory proposed to be served by the applicant, and on the city clerk of every city into or through which said motor carrier may desire to operate; and any such common carrier or city is hereby declared to be an interested party to said proceedings and may offer testimony for or against the granting of such certificate, and any other interested person may offer testimony at such hearing. If the commission finds from the evidence that the proposed service or any part thereof will promote the public convenience and necessity, the commission shall issue the certificate; otherwise such certificate shall be denied. Before granting a certificate to a public motor carrier, the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.” (G. S. 1935, 66-1,114.) “It shall be unlawful for any ‘contract motor carrier of property or passengers’ or ‘private motor carrier of property’ to operate as a carrier of property or passengers within this state either in intrastate commerce or in interstate commerce without first having obtained from the public service commission a license therefor. An application shall be made to the public service commission in writing stating the ownership, financial condition, equipment to be used and physical property of the applicant, and such other information as the commission may request. Upon receipt of such information and on compliance with the regulations and payment of fees, the public service commission shall issue a license to such applicant.” (G. S. 1935, 66-1,115.) It will be noted that G. S. 1935, 66-l,112f, directs the commission to prescribe minimum rates to be collected by contract carriers. Pursuant to this section, the commission proceeded to give notices and to have a hearing during September, 1933. Certain common carriers were represented at this hearing. Evidence was introduced before the commission on the question of what the contract rate should be. On April 7, 1934, as a result of this hearing, an order was issued by the commission fixing the minimum rates for contract motor carriers at seventy-five percent of the lowest “less than carload rates” contemporaneously maintained by common carriers on the same commodities and between the same points before the deduction of allowances. The common carriers made a motion for rehearing, which was denied. On June 7, 1934, the commission on its own motion opened the proceedings for further hearings. Hearings were had during October, 1934. Pursuant to this hearing the commission made the order, which is the subject of this appeal. This order was as follows: “It is therefore on this 13th day of June, 1935, by the commission ordered: That contract motor carriers of property, operating in competition with common carriers between points in the state of Kansas, be, and they are hereby notified and required to collect charges not less than those obtained by applying to the actual weight of each shipment the following minimum rates: “(a) On all shipments weighing 5,000 pounds or more, between points served by rail, the railroad carload rates: Provided, That in cases where the shortest railroad mileages exceed the highway mileages via the shortest practicable routes, by more than thirty percent, and lower rates are obtained by applying such highway mileages to the lowest railroad scale of rates applicable to the destination involved, then such lower rates shall apply: Provided further, That when such shipments consist of more than one kind or class of articles the actual weight of each of the differently rated articles shall be subject to the rate applicable on such articles in straight carloads. “(b) On shipments of livestock, weighing less than 5,000 pounds, between points served by rail, rates constructed by adding five cents per one hundred pounds to the railroad carload rates on the same kind, or kinds, of livestock: Provided, That in cases where the shortest railroad mileages exceed the highway mileages via the shortest practicable routes by more than thirty percent, and lower rates are obtained by adding five cents per one hundred pounds to the rates secured by applying such highway mileages to the lowest railroad scale of rates applicable to the destination involved, then such lower rates shall apply. “(c) On shipments weighing less than 5,000 pounds, consisting of traffic other than livestock, between points served by common carriers, eighty percent of the lowest less-carload rates now maintained by common carriers by motor vehicle and/or by rail on the same commodities between the same points before such common carriers deduct any allowances: Provided, That in cases where the shortest common carrier mileages'exceed the highway mileages via the shortest practicable routes, by more than thirty percent, the rates shall be eighty percent of the rates obtained by applying such highway mileages to the scale of rates applicable via common carriers between the points involved. The above term ‘shortest common earner mileages’ shall mean the distances used in determining such lowest less-carload common carrier rates. “(d) On all shipments of livestock, and on shipments of other traffic, weighing 5,000 pounds or more, from, to or between points not served by rail, the additional charges set forth in Appendix A hereto shall be added. “(e) On shipments weighing less than 5,000 pounds, consisting of traffic other than livestock, from, to or between points not served by common carriers, the additional charges set forth in Appendix B hereto shall be added.” Special attention is directed to paragraph (c) of the above order, since the provisions of that paragraph are “under fire” here. It will be noted that the minimum rate fixed for contract carriers in this period on shipments weighing less than 5,000 pounds is eighty percent of the lowest less-carload rate at that time maintained by common carriers by motor or rail on the same commodities between the same points. Pursuant to G. S. 1935, 66-118c, the common carriers by rail sought to have this order reviewed in the district court of Shawnee county. The grounds upon which this review was sought were as follows: 1. That the order is unlawful, unreasonable, and contrary to the provisions of section 8, chapter 229, Laws of 1933 (66-1,112e, G. S. 1935) because it gives undue and unreasonable advantage or preference to patrons of the contract motor carriers over patrons of the railroads. 2. That the unreasonable advantage given the contract motor carriers is so great as to deny to the railroads equal protection of the law and to deprive them of their property without due process of law, contrary to the constitution. 3. That the Kansas intrastate business lost by the railroads through these discriminatory rates will injure and impair the ability of the railroads to conduct their interstate operations and will thus be a burden upon interstate commerce. 4. The order is arbitrary and unreasonable. 5. The findings of fact are not supported by the evidence. 6. The order is contrary to law. The trial court found against the contentions of the appellants and sustained the order of the commission, hence this appeal. The first point argued by the appellants here is that the order of the commission creates and necessitates an unreasonable discrimination and undue preference against common carriers and their patrons. In this argument special stress is laid on the provisions of G. S. 1935, 66-1,112e. The appellants point out that the less than carload rate for flour between Topeka and Emporia is 29 cents per hundred, so that the charge for 2,000 pounds of flour moving by rail from Topeka to Emporia is $5.80; that this is a fixed rate; the railroad must charge this rate — no more, no less — while under the commission’s order a contract carrier can carry the same 2,000 pounds of flour for 80 percent of this rate, or $4.64. Appellants then state in their brief: “1. If a contract carrier may haul 2,000 pounds of flour from Topeka to Emporia for $4.64 as against $5.80 required to be charged by common carriers, does the contract carrier give his patron an undue or unreasonable advantage or preference, as compared with a similar patron of a common carrier? If the answer is affirmative, and no other answer seems logical, the commission’s order is void. “2. If a contract carrier may haul 2,000 pounds of flour from Topeka to Emporia for $4.64 as against $5.80 required to be charged by common carriers, does the contract carrier subject the patrons of common carriers to undue or unreasonable discrimination or disadvantage? If the answer is affirmative, and it certainly must be, the commission’s order is void. “3. If a contract carrier may haul 2,000 pounds of flour from Topeka to Emporia for $4.64 as against $5.80 required to be charged by common carriers, does the contract carrier by unfair competition destroy or impair the service or business of common carriers? If the answer is affirmative, and that seems obviously to be the only answer, the commission’s order is void. “4. If a contract carrier may haul 2,000 pounds of flour from Topeka to Emporia for $4.64 as against $560 required to be charged by common carriers, does the contract carrier destroy or impair the integrity of the state’s regulation of common carriers? If the answer is affirmative, the commission’s order is void.” Does the record in this case require that the answers of the above questions should be in the affirmative? In the first place, it must be remembered that the commission is not given the authority to fix rates for contract, carriers. It may only fix minimum rates. Hence, the contract carriers are not compelled to haul the 2,000 pounds of flour from Topeka to Emporia for $4.64. They may charge under the law and the order of the commission any price they wish to charge, just so they do not charge less than $4.64. The rate on flour between Topeka and Emporia is only one of a myriad of examples of transportation charges. The railroads maintain tariffs of charges on different commodities between many shipping points in the state. The question of whether a certain rate is •discriminatory or gives certain patrons an undue preference cannot be settled in a general hearing such as this. Before this court could answer the questions propounded by appellant in the affirmative, and that G. S. 1935, 66-1,112e, is violated thereby, it would be necessary that it appear not only that the contract carriers could carry 2,000 pounds of flour from Topeka to Emporia for $4..64 while the railroads must charge $5.80, but it must appear that the contract carriers actually are carrying it at that rate. In addition, it would have to appear that other conditions and circumstances were comparable. Discrimination and undue preference do not depend on rates alone. There are other elements that must be considered. There is a field in which G. S. 1935, 66-1,112e, was intended to and can operate apart from G. S. 1935, 66-1,112f. Had the latter s.ection never been enacted, the commission could on proper complaint have considered the question of discrimination and undue preference on the part of contract carriers under the provisions of G. S. 1935, 66-1,112e. We. are not holding here that the rate on flour to which reference has been made under certain circumstances could not be a violation of G. S. 1935, 66-1,112e. What we do hold is that the question of whether it is a violation cannot be settled in a hearing the purpose of which is to fix a minimum rate. Some attention is paid in the brief of appellants to the fact that many of those claiming to be contract carriers are in reality common carriers and subject to the regulations and rates governing common carriers. This also is a question which should be called to the attention of the commission in a particular case. It cannot be settled in a hearing such as this. The next question argued by appellants is that there is no evidence of a state-wide identity of conditions to justify a state-wide identity of contract-carrier rates or a blanket order, and the order was made without sufficient evidence to support its finding that contract-carrier rates should be related to common-carrier rates. Here again it must be remembered that the commission did not fix a rate, but only fixed a minimum rate. The commission heard evidence from contract carriers from different parts of the state and operating under various circumstances. There was some evidence on the question of the cost of service. The evidence could not in the nature of things be exhaustive and cover every case of a contract carrier. Had the commission gone into the question of the expenses of every contract carrier in the state, the hearing never would have been completed and the commission would never have had time for ■ its other work. It is not improbable that the legislature had some such an idea in mind when the act was passed providing for the commission’s establishing minimum rates rather than fixed rates. The fact is that there are some elements about any freight-rate structure that must be arbitrary. The history of this country abounds in evidence where cities and industries have flourished or had hard times, depending on the freight-rate structure. There never is exact identity of conditions. The whole subject of control and regulation of rates for contract carriers is a new one. The order under consideration here is the first attempt at it in this state. The matter is not res adjudicata. It can be opened by the commission on its own motion or on complaint of an interested party at any time. We cannot say there was not sufficient evidence to justify the order made. The judgment of the trial court is affirmed. Hoch, J., not sitting.

The opinion of the court was delivered by Harvey, J.: This is a workmen’s compensation case. The appeal is from an order of the district court approving a ruling of the compensation commissioner refusing to modify an award of compensation previously made. The facts, so far as pertinent here, are not seriously controverted and may be stated as follows: The claimant, William B. Dobson, was employed by the Apex Coal Company at a steam shovel. He was known as a “groundman,” and his work consisted of shooting rock, laying track, water lines, and doing anything there was to be done on the grounds about the operation of the steam shovel. The parties operated under the workmen’s compensation act. Dobson was a member of the fourth shift and worked at night. The night of December 26,1937, a chunk of hard gumbo dirt fell off the dipper of the shovel and struck him, fracturing the internal and external malleoli (the rounded lateral projection on each bone of the leg or ankle) of his left ankle. He went to the employer’s doctor, who took X-ray pictures, which disclosed the fractures in the malleoli, and put the foot and ankle in a plaster cast. The workman was unable to continue his employment, but it was not necessary for him to go to a hospital. He went on crutches to the doctor’s office for treatment. The plaster cast was removed in about four weeks and it was found that the fractures had knit, but the ankle was swollen and tender. The doctor advised using the foot and ankle a little and to increase the use as rapidly as that could be done reasonably. His employer began the payment of compensation promptly, and continued to make such payments until February 21. It then tendered a check for the balance it thought was due, together with a receipt for final payment, which tender was refused. On March 2 Dobson went back to work at his old job, and at regular wages, and continued to work until March 12, when the shift of which he was a member was laid off because of the lack of work. On April 16, 1938, the workman filed his claim for compensation. This was heard before the commissioner on May 19. On June 28 the compensation commissioner made an award in which he found the claimant was entitled to compensation for forty-two weeks for temporary total disability, at the rate of $18 per week, and made an award accordingly. No appeal was taken from that award by either party. •On July 9, 1938, the respondent filed a petition for review, in which it was alleged that the award was excessive, and that the incapacity and disability of the claimant had terminated or diminished since the making of the award, and that the claimant since the hearing on his claim had returned to work for respondent and was earning the game or higher wages than he was earning at the time of the accident and injury. The prayer of the petition was that the commissioner determine the rights of the parties under the award and review, or cancel or modify the award heretofore filed, and terminate or diminish the compensation previously awarded to claimant. This petition was heard by the compensation commissioner on September 15, 1938, upon evidence introduced by the respective parties.. On September 19, 1938, the commissioner made an order denying modification of the award, which order in part reads: "The commissioner has considered the testimony introduced and is of the opinion that such evidence is not sufficient upon which to base a finding that the claimant’s disabilitjr has either diminished or ceased. It may be true that claimant has returned to work and is earning the same or higher wages than he was earning at the time of the accidental injury. It does not necessarily follow that his disability has diminished or 'ceased, and the commissioner is of the opinion from the evidence that the claimant is still disabled and that the respondent’s application for review and modification should be denied.” Respondent appealed to the district court, where the matter was argued October 18. On November 26 the court made a finding that the findings and award of the commissioner of workmen’s compensation should be affirmed and adopted in all respects, and made an order accordingly. The appeal is from this ruling. Turning now to the legal questions argued, we are first confrontéd with a contention on behalf of appellee that the last ruling of the compensation commissioner was not a new award, and that the order of the district court affirming it was not an appealable order. The same question was raised in Stevens v. Kelly-Carter Coal Co., 140 Kan. 441, 37 P. 2d 48, where the court disposed of it by saying— “The statute [G. S. 1935, 44-528] provides that either party may ask for modification of the award on the ground that it was inadequate or that it was excessive or that claimant had recovered. In the proceedings under consideration here claimant claimed the award was inadequate. Respondent claimed that claimant had recovered. The examiner and the district court heard both sides and overruled both. This appeal is from that judgment and is taken in time. The last award of the commission was a new award and the order of the district court affirming it was an appealable order.” (p. 443.) This holding accords with our prior decisions. (Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 297 Pac. 429; Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540.) Appellants contend that in the hearing before the compensation commissioner, upon the petition for review and modification of the award, there was no evidence which justified the finding of the commissioner, and since the district court reviewed the same evidence, that there was no evidence to justify its approval of the finding and ruling of the commissioner. This requires an examination of that evidence. Before going into that, we think it worth while to note that since there was no appeal by either party from the award made by the compensation commissioner June 28, based upon the workman’s claim for compensation, which was heard May 18, 1938, that award has become final. (Hurst v. Independent Construction Co., supra; Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228.) Being final, it was binding not only upon the parties, but upon the compensation commissioner, and upon the district court as well as this court. Whether that award should have been different in some respects cannot now be inquired into. It was an award for temporary total disability. In Billings v. United Power & Light Corp., 125 Kan. 370, 374, 263 Pac. 779, it was said: “. . . compensation is allowed for disability. In its most disastrous form, disability is total and permanent. Total means, of course, complete to the last degree. Permanency is arbitrarily limited to a period of eight years, or 416 weeks, following injury.” In Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, it was held: “The workmen’s compensation act provides for compensation during incapacity, and the implication is that compensation should cease when incapacity ends.” (Syl. H4.) In Moore v. Manufacturing Co., 99 Kan. 443, 162 Pac. 295, an award had been made upon a finding of permanent total disability. A. petition for review and modification was filed upon the ground that the workman “is now conducting a cleaning, pressing and tailoring business . . . and ... is making from twelve ($12) dollars to fifteen ($15) dollars a week out of said business.” It was contended that this fact was inconsistent with the finding of total incapacity to work. There was no showing that he did any manual labor in connection with his business, hence the petition to review and modify was denied. In the opinion it was said: “If it had been shown in this instance that the plaintiff personally performed a part of the work of cleaning, pressing and tailoring, a very different question would be presented. Possibly any portion of his income that could be traceable to such work on his part should be given the same effect as though he received it as wages." (p. 447.) In Sauvain v. Battelle, 100 Kan. 468, 164 Pac. 1086, a claimant engaged in physical labor was injured. He was given an award for total incapacity. Later he procured employment as foreman of a section gang which required no manual labor. It was held this did not justify denying compensation. Hence, total disability does not mean absolute incapacity to do anything, although, if permanent, it is the most complete disability recognized by our compensation act. It does mean inability to work and earn wages in the same or similar employment in which the workman was engaged. Many cases dealing with this point are collected in the American Digest System, under Key No. 846, Workmen’s Compensation. Previously the compensation commissioner had found total temporary disability. The petition to review and modify was upon the ground that claimant’s-disability had terminated. We examine the evidence as it pertains to that specific question. In brief, this evidence was to this effect: That beginning on May 20, directly after the first hearing before the compensation commissioner, the claimant returned to his work, and that he worked every day work was available throughout the remainder of the month of May, and through June, July, August and September, up to the date of the last hearing before the compensation commissioner; that this was the same work he had done before his injury, and that he was able to do this work without the aid of fellow-workmen or other assistance, and that he drew the same or higher wages than he was drawing at the time of his injury. Claimant testified that in performing this work he had some pain in his left foot and ankle; that sometimes the pain was worse than at other times. There -was medical evidence to the effect that an injury of this kind, properly treated, usually gets completely well in about three months, and that X rays taken shortly before the first hearing and again shortly before the last hearing before the compensation commissioner, disclosed that the fractures of the malleoli had completely knit, and that one looking at the X-ray photographs could not tell that there ever had been such fractures, and that there was no reason, from the physiological appearance of the ankie and foot, to indicate that the claimant would have any pain in performing his work. There was other medical evidence tending to show that the structure of the foot and ankle were such that possibly the claimant would have pain while working. So we have here a case in which ability to work at the same employment, and perform the work without assistance, has been fully restored. The most that can be said in favor of claimant is that he had some pain while performing the work. This is not enough to justify the continuation of total disability. The specific question was before the court in Welden v. Edgar Zinc Co., 129 Kan. 422, 283 Pac. 618. There the workman was injured and disabled for a time, for which he was paid compensation. Then he returned to work for the same employer, at the same character of labor, and was paid the full wages received by him at the time of his injury, but did this work with some discomfort and more or less pain. It was held he was not entitled to additional compensation because of the pain. In the opinion it was said: “It appears that the workman has suffered no diminution of wages or earning ability, as he earned and was paid the full wages he was earning before the accident. The fact that he did this work with some discomfort and pain might have been an element of recovery in an ordinary action to recover damages for negligence. The compensation law is a marked departure from the theory of actions based on the wrongs or negligence of employers. It is based on the theory of taxing the industry for the loss sustained by accidental injury to a workman while employed in such industry, and compensation is to be paid regardless of the negligence of the employer or even the fault of the workman. The theoiy is that the compensation is to be measured not as damages for pain and suffering, but for the loss sustained by the incapacity of the workman resulting from the accidental injury. In general it may be said that the test to be applied is the difference between average earnings of the workman before the accident, and his average earnings after the accident. . . . The industry is not to be taxed for accidental injuries beyond the workman’s loss of earning capacity measured as the statute provides.” (p. 423.) Appellee cites and relies largely on McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P. 2d 39, where it was held: “. . . The fact that a workman returned to work for the same employer for whom he was working at the time of his injury, for greater wages than he was receiving at the time of his injury, does not preclude a finding that he suffered partial permanent disability when a finding of such disability was sustained by other competent evidence.” (Italics inserted.) The difficulty of applying the doctrine of that case here is that there never was a finding of permanent partial disability of the workman in this case. Possibly the evidence at the first hearing would have justified a finding of total temporary disability for a period, followed by a period of temporary partial disability. The statute (G. S. 1935, 44-510 [3] [b]) authorizes such a finding when the facts warrant it. But no such finding was made. The only finding made was of total temporary disability, and since neither of the parties appealed from that award it became final and is binding upon the parties. In the annotations in 17 A. L. R. 205 and 118 A. L. R. 731 a number of cases are collected, including some of our own, in which it was held that a finding of permanent partial disability does not preclude the workman from doing some character of work for the same or some other employer at the same or higher wages than he was receiving at the time of his injury. None of these cases is in point. We are bound here by the finding of total temporary disability. We have found no case, and counsel have cited us to none, where there was a finding of total disability, and where the workman returned to and performed the same work at the same wages a continuance of payment for total disability was authorized. The result is, the judgment of the trial court must be reversed with directions to set aside the award of compensation as of the date of July 9, 1938, when the petition for review and modification was filed. It is so ordered.

The opinion of the court was delivered by Dawson, C. J.: This is an appeal from a judgment overruling a demurrer to a petition to set aside a judgment. A short chronicle of the pertinent facts is as follows: On May 7, 1928, William L. Black and Rose Black, his wife, borrowed $3,000 from N. A. Renner, and executed to him a mortgage on a quarter section of land to secure the repayment thereof in three years, with 4 percent annual interest until maturity, and 10 percent annual interest thereafter. On August 7, 1928, William L. Black was adjudged insane and committed to the Topeka State Hospital for care and treatment, and so remained in that institution for several years. On or before May 7, 1932, the sum of $2,500 had been paid on the principal indebtedness owing from the Blacks to Renner; also, all the interest due at that date. On April 3, 1935, the State Board of Administration filed in the probate court a proof of demand for $1,601.43 against the estate of William L. Black — presumably under G. S. 1935, 39-232. On December 17, 1936, Renner brought an action to recover the alleged balance due on the Blacks’ indebtedness, to wit, $500 and accrued interest, and several years’ taxes which defendants had suffered to become delinquent and which plaintiff had paid. He prayed judgment and for the foreclosure of the mortgage he held as security. Personal service of summons was made on William L. Black as the statute required; likewise upon his guardian, P. C. Austin; and also upon Manford Holly, an attorney whom the court appointed as Black’s guardian ad litem. On March 15, 1937, the latter filed an answer in Black’s behalf traversing every issue tendered in plaintiff’s petition. On March 17,1937, judgment was entered in favor of plaintiff for $1,440.81 with interest thereon at 10 percent from the date of the judgment, and decreeing foreclosure and sale of the land mortgaged to secure the indebtedness. The judgment contained all the requisite recitals, showing jurisdiction, service and appearances, pleadings, and the introduction of evidence. An order of sale was issued on March 31, 1937, and pursuant thereto the sheriff sold the property on May 4, 1937, to N. A. Renner, judgment creditor, for $1,601.81. The sheriff’s return was made the same day. On June 7, 1937, the sale was confirmed. The journal entry thereof recites that the court examined the order of sale, the publication notice and proof of publication, and the sheriff’s return, and adjudged the proceedings to be regular and in conformity with law and equity. A certificate of purchase was ordered to be issued to Renner, and eighteen months from date of sale, May 4, 1937, was fixed as the period of redemption, and providing that if redemption was not made within that time (which would be on or before November 4, 1938) the usual sheriff’s deed should issue and the grantee should be put in possession. On June 4, 1937, William L. Black was granted a parole from the Topeka State Hospital. On July 22, 1938, he was restored to all his rights as a citizen, and on August 22,1938, he was discharged from the hospital as “restored while on parole.” On December 2, 1938, which was twenty-eight days after the redemption period had expired, William L. Black filed in the cause concluded as above stated a petition to set aside the judgment entered in favor of Renner on March 17, 1937, pursuant to which the mortgaged property had been sold, and as to which the redemption period had expired. He alleged that his confinement in the state hospital had prevented him from making a defense to the action; that he was discharged from the hospital as restored on August 22, 1937; that the judgment had been entered— “. . . by and through misstatements and misrepresentations made by the plaintiff and the defendant, Rose M. Black, at the hearing and trial of said cause, said parties referred to being in collusion thereon; that except for the unavoidable casualty, as hereinbefore referred to and set out, preventing this applicant from defending said suit so instituted, said judgment and decree so entered would not have been obtained.” He further alleged that after the reduction of the $3,000 indebtedness to $500 — ■ “ . . . Thereafter, the exact date of which is to this applicant unknown, but long prior to the date of the filing of the petition of plaintiff herein, said sum of $500 and all accrued interest thereon was duly canceled by plaintiff as paid; . . . that plaintiff orally stated and admitted, the exact date of said admission being unknown, that said indebtedness had been canceled as paid, said statement and admission having been made to applicant at the state hospital. . . . This defendant is informed and verily believes that said last-mentioned credit of $500 was allowed and the obligation owing fully canceled prior to the time of the payment by plaintiff of taxes for the years 1930, 1931, 1932, 1933, 1934, and 1935' as alleged, and that said real-estate mortgage sued upon should have been discharged of record prior to the time of the payment of any taxes as alleged.” Elsewhere iri'his petition defendant alleged: “Applicant further states that shortly prior to the time of the expiration of the eighteen months heretofore referred to, an agreement was entered into by and between plaintiff and this applicant for an extension of the redemption period as herein ordered; that said agreement was and is of no force and effect, the same being an agreement growing out of illegal orders of the court made and entered, and that the same in no way affects the rights of this party in connection with this proceeding; that at the time said agreement was entered into, this applicant did not have full information concerning the facts herein set forth or full information concerning the probability of corroborative proof thereof.” The petition concluded with a prayer for an order vacating the judgment and decree of foreclosure and to set at naught all the subsequent proceedings and to cancel and set aside the sheriff’s deed executed pursuant thereto. The plaintiff Renner interposed a demurrer to this petition on two grounds — its failure to state a cause of action, and that the court had no jurisdiction to hear and determine its subject matter. This demurrer was overruled and the matter is brought here for review. The first question of law which arises in the circumstances just stated is whether the lunacy of a defendant alters in any way the binding force of a judgment against him when the requisite procedural formalities have been complied with — personal service on the lunatic and his guardian — and when a guardian ad litem has been appointed to represent him. This question necessarily requires a negative answer. Otherwise, what would it avail a litigant to prosecute or defend an action against a lunatic? The statute which prescribes how jurisdiction of a lunatic may be obtained was strictly complied with in this case. So, too, its provision for a guardian ad litem to represent him in the litigation was likewise followed. (G. S. 1935, 60-408.) In such circumstances a judgment against an insane person is as valid as that against an ordinary litigant, and can only be successfully assailed in the manner and on the grounds provided by the civil code. (Weedman v. Fowler, 84 Kan. 75, 113 Pac. 390; Cooper v. Greenleaf, 84 Kan. 499, 503-504, 114 Pac. 1086; 35 L. R. A., n. s., 1090 and note; Sterling v. Goulden, syl. ¶ 1, 136 Kan. 18, 12 P. 2d 812; Foster v. Jones, 23 Ga. 168; Cain v. Milburn, 192 Iowa 705, 185 N. W. 478; Willis v. Mason, 140 Ky. 88,130 S. W. 964; Livingston v. Livingston, 67 N. Y. S. 789.) In 1 Freeman on Judgments, 5th ed., § 405, it is said: “Judgments against them [lunatics] . . . are neither void nor voidable . . . if not void on their face, are as impervious to collateral attack as judgments against sane persons. In a suit against a lunatic, the judgment is properly entered against him, ... A lunatic has capacity to appear in court by attorney. . . . But a judgment against a lunatic is conclusive upon him and those in privity with him as to all matters adjudicated.” (pp. 882, 883.) See, also, Buswell on Insanity, § 124. Looking into the allegations of the petition to set aside the judgment, it will be noted that the petitioner alleged that it had been obtained through “misstatements and misrepresentations” made by plaintiff and the petitioner’s wife, “said parties referred to being in collusion thereto.” No specific misstatement or misrepresentation is alleged, and the suggestion of collusion between plaintiff and defendant’s wife is not an allegation of fact but a mere conclusion not well pleaded. (LaHarpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, 8 P. 2d 354, syl. ¶ 3.) It should also be noted that the petitioner did not squarely allege that the $500 balance of his indebtedness had been paid, but merely that while petitioner was in the hospital and before his mental capacity had been restored the plaintiff Renner had orally stated that “said indebtedness had been canceled as paid.” Canceled as paid — how, and for what consideration? As a plea of payment it was insufficient. And as an allegation of cancellation it was likewise insufficient, since no consideration therefor was pleaded. The Roman law doctrine of acceptilation is no part of Kansas jurisprudence. The judgment sought to be vacated was rendered on March 17, 1937. The petitioner was discharged from the hospital as restored to his sanity on August 22, 1938. The redemption period pursuant to the sale of his property in foreclosure ended on November 4,1938. He alleged that shortly before the expiration of the redemption period he and plaintiff made an agreement to extend the redemption period. That allegation would seem to allege a ratification of the judgment of March 17, 1937, if any defect had inhered in it. But nothing was hinted at in the petition to set aside the judgment which, even if proved, would render the judgment void. (32 C. J. 788-789.) And even if voidable, it might be acquiesced in (1 C. J. S. 915-916); confirmed (15 C. J. S. 825); or ratified (52 C. J. 1144-1145; 1 Freeman on Judgments, 5th ed., 422-441). Petitioner’s allegation that the agreement was of no effect because it grew out “of the illegal orders of the court” is gratuitous, since the court made no illegal orders in its judgment of March 17, 1937, nor in the court’s subsequent proceedings pertaining thereto. The suggestion is made that appellee’s adjudication in lunacy and its consequences was an “unavoidable casualty and misfortune” which entitled him to have the judgment set aside. “Unavoidable casualty or misfortune” which prevents a party from prosecuting or defending an action, such as will suffice to vacate a judgment under section 568 or section 570 of the civil code (G. S. 1935, 60-3007; 60-3011) has frequently been discussed by this court. (Winsor v. Goddard, 15 Kan. 118; Mehnert v. Thieme, 15 Kan. 368; Welch v. Challen, 31 Kan. 696, 314; Weems v. McDavitt, 49 Kan. 260, 30 Pac. 481; Avery Co. v. Seeley, 110 Kan. 590, 204 Pac. 731; Johnson v. Salkeld, 126 Kan. 807, 271 Pac. 385.). In Daniel Hill v. Elias Williams, 6 Kan. 17, it was said: “When ‘-unavoidable casualty or misfortune’ is alleged, the facts must be so stated as to make it appear that no reasonable or proper diligence or care could have prevented the trial or judgment; that is, that the party complaining is not himself guilty of any laches.” (Syl. If 3.) Lunacy does not fall within the term ‘unavoidable casualty or misfortune’ which will prevent a litigant from defending an action when a guardian ad litem has been appointed to defend him and when that service has been duly performed (Dean v. Metcalf, 144 Kan. 174, 176, 58 P. 2d 1073). The judgment is reversed and the cause remanded with instructions to enter judgment in favor of N. A. Renner, appellant herein.

The opinion of the court was delivered by Allen, J.: This was an action in partition. A demurrer to plaintiff’s amended petition was sustained, and plaintiff appeals. Plaintiff and defendants claim under the will of Charles M. Hicks, who died October 3,1920. The will provided: “First: For services rendered me during my lifetime, I give and bequeath to L. C. Ele, for a period of twenty years from the date of my death, the use, rent free, of the following-described real estate (description), L. C. Ele to receive all rentals and royalties which may accrue on account of the production of oil and gas, and shall pay all taxes assessed against the above-described real estate. “Second: To my brother, George W. Hicks, I give and bequeath five thousand dollars ($5,000), which amount shall be invested by my executor, and the increase therefrom shall be paid to George W. Hicks. “Third: To my nephew, Dow Jones, I give and bequeath five dollars. “Fourth: To the sons and daughters of my brother, William Harrison Hicks, and Dow Hicks, and my sister Sarah Hickman, I give and bequeath the remainder of my real and personal property, also at the end of twenty years after my death, the z'eal estate above described, also the five thousand dollars given to my brother, at his death.” On August 12, 1938, L. C. Ele by quitclaim deed conveyed “the balance of the twenty-year period in and to the life estate which I own in and to” the land in question to the defendant O. E. Ele. L. C. Ele died September 13, 1938. Plaintiff alleges that he is the owner of an undivided 77/108 interest in the real estate by virtue of deeds made to him by the “legatees of Charles M. Hicks, deceased”; that plaintiff and certain of the defendants, remaindermen under the will, are entitled to the immediate possession of the land, and ask for partition. Plaintiff contends that under the will of Charles M. Hicks, the devisee L. C. Ele acquired a right of personal use and occupancy only in the premises; that whatever the nature and extent of his interest it was forfeited by his failure to pay the taxes, by waste committed, by abandonment, and in any event that it was terminated by his death. These theories, urged with sincerity in an elaborate brief, must be examined. 1. What interest or estate did L. C. Ele take under the will? A motive for giving a substantial interest in the property to this devisee is disclosed in the declaration: “For services rendered me in my lifetime.” The first paragraph specifies “a period of twenty years from the date of my death,” and the fourth definitely states the gift to the remaindermen is not to arise until “the end of twenty years after my death.” Beyond dispute this language is apt and appropriate to create a term of twenty years in Ele. It is contended, however, that the words “the use, rent free” degrades the estate for years to a right of personal use and occupancy only. We are unable to agree with this contention. As the devisee was to have the use of the land for twenty years without paying rent, necessarily he was to have the avails — the rents, issues and profits of the land for the term. It has been settled since the time of Lord Coke that a grant or devise of the rents, issues and profits of land passes the land itself. In Caldwell v. Fulton, 31 Pa. St. 475, 484, 72 Am. Dec. 760, it was said: “There are two modes in which the subject matter of a deed may be described, both equally potential. The one is by a description of the thing itself, as of land by metes and bounds, or by a known name, and the other is by a designation of its usufruct, or of the dominion over it. Thus a grant of the rents, issues, and profits of a tract of land is uniformally held to be a grant of the land itself: Co. Litt. 4 b. Judgments abound to this effect in regard to devises, and though in wills and deeds the rules of construction differ relative to words limiting the estate granted, yet they are the same of words describing the subject matter of the grant. . . . The reason is that the grant of a thing can be no more than the grant of the full and unlimited use of it. ...” In Beilstein v. Beilstein, 194 Pa. St. 152, 154, 45 Atl. 73, 75 Am. St. R. 692, it was said: “The gift of the income is the gift of the land itself: Drusadow v. Wilde, 63 Pa. 170; Curry v, Patterson, 183 Pa. 238. In the former case it is said by Sharswood, J.: ‘There is no construction of words older and better settled than that a grant or devise of the profits of land passes the land itself, “for what,” says Lord Coke, “is the land but the profits thereof, for thereby vesture, herbage, trees, mines and all whatever parcel of the land doth pass.” Co. Litt. 4, 6.’ ” In Lachmund v. Moore, 192 Ia. 980, 981, 181 N. W. 4, it was said: “It will be noted that the will in terms gave to Harriet M. Moore, without any limitations, all the rents and profits of the real estate in question. In the absence of some provision of the will indicating • the contrary intent, such a disposition of the rents and profits carries with it the corpus of the estate. There is no conflict of authority upon this proposition. The trial court based its decree upon it, and awarded the property to the defendant Harriet. . . .” See, also, Schnack v. City of Larned, 106 Kan. 177, 180, 186 Pac. 1012; Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569; Estate of Franck, 190 Cal. 28, 210 Pac. 417; Schmidt v. Schmidt, 292 Ill. 275, 126 N. E. 736; McCoy v. Houck, 180 Ind. 634, 99 N. E. 97. An estate for years is an estate, the duration of which is fixed in units of a year or multiples or divisions thereof, and we are clear that L. C. Ele received such an estate in the land devised. His interest therein was alienable. Conveyances of land or of any estate or interest therein may be made by deed properly executed. (G. S. 1935, 67-205.) Under our statute of frauds, 33-105, any estate or interest in land, exceeding one year in duration, may be assigned by deed. Under the law of this state any interest in land is subject to voluntary (Markham v. Waterman, 105 Kan. 93, 98, 181 Pac. 621) and involuntary (Thompson v. Zurich State Bank, 124 Kan. 425, 260 Pac. 658) alienation. The quit-claim deed from L. C. Ele to O. E. Ele effectually conveyed the unexpired portion of the twenty-year term. ' 2.. Appellant invokes Sherman v. Critzer, 135 Kan. 579, 11 P. 2d 993, quotes at length from that case, and asserts that the doctrine there announced requires a reversal in this case. In the Critzer case the testator devised land to his wife for a period of ten years, then to pass to and become the property of his wife and three children in equal shares, and if any child should die before the end of the ten-year period, the share of such child to go to his or her children, if any; 'if none, to his or her surviving brother and sister. ’ The wife died two weeks before the testator. 'The court held the remainders were accelerated into possessory estates. It is contended that upon the death of L. C. Ele the remainders were accelerated as in the Critzer case. The argument, as stated in the brief of appellant, runs thus: “If, in the Critzer case, the wife of the testator had lived three weeks longer, which would have been one week after the death of the testator, would not the same argument and rule have been applied — that is, that there was no one who for the balance of the ten-year period would have the use and benefit of the property, and that the remaindermen would be immediately entitled to possession.” Passing for the moment the point that the death of the tenant does not terminate a term of years,- there is slight analogy between the Critzer case and the case -at bar. This will clearly appear by contrasting the real question there raised with the question now before us. Whenever prior and succeeding interests in property are created there is a possibility that one or more of the interests may fail to come into existence. An attempted prior interest — as a life estate, or a term of years — may fail either by renunciation or by the death of the devisee before the testator. Cases where a widow renounces a life estate devised to her, and elects to take under the statute, are common. (Allen v. Hannum, 15 Kan. 625; Fennell v. Fennell, 80 Kan. 730, 106 Pac. 1038; Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235.) In Miller v. Miller, 91 Kan. 1, 136 Pac. 953, the renunciation was by a life tenant, a grantee under a deed. (See Restatement, Property, sections 231 to 235.) In the case of the widow’s renunciation, that event, for the purpose of construction, is regarded as relating back to the death of the testator, or the delivery of the deed, and the instrument is reconstrued in the light of that fact. (Simes, Future Interests, § 752.) Thus by construction the interest renounced never came into existence. Likewise where the devisee dies before the testator, the gift fails. In the Critzer case the term of ten years attempted to be created in the widow failed by the death of the widow in the lifetime of the testator. Hence the remainders limited after extinct life estate, not being subject to a condition precedent (compare Miller v. Miller, supra), were advanced and became possessory estates. In the case before us there was no failure of the twenty-year term by renunciation or death of the tenant before the testator; on the contrary, the twenty-year term vested in Ele and he took possession thereof. Being an estate validly created, it could be terminated only in manner provided by law. An estate for years is a valuable property interest, and unless restricted by the terms of the creating instrument, it may be transferred or devised. It was not terminated by the death of Ele. The doctrine of the Critzer case has no application to the question here presented. 3. It is claimed, however, the term was forfeited by failure to pay the taxes. Under the will the duty to pay the taxes during the term was imposed on the tenant Ele. Where a term of years is created under a lease, payment of taxes is usually provided for in the covenants in the lease (see 35 C. J. 1068), but where the term is created in a will, the duty to pay the taxes in the absence of a provision otherwise controlling would seem to be analogous to the duty of a life tenant to pay taxes. (Jinkiaway v. Ford, 93 Kan. 797, 145 Pac. 885.) Many remedies are available to the owners of the succeeding interest, a receivership, or such interest could be impressed with a lien. (Restatement, Property, § 129, comment k.) As there was no special limitation in the will terminating the term on failure to pay the taxes, and no provision that would divest the estate of Ele in favor of any other person, it follows that his interest was not terminated or divested upon his failure to pay the taxes. Neither was there a condition subsequent giving the heirs of the testator power to terminate his estate. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718.) 4. It was alleged that Ele abandoned his right to use the real estate on or about August, 1937, and moved to a town; -that he made application for old-age assistance, in which he stated that he did not own, and had no interest in, any real estate. It is argued that his interest in the real estate was extinguished by abandonment and that the interest of the remaindermen was accelerated. In 1 C. J. S., page 4, abandonment is defined: “ ‘Abandonment’ of property or a right is the voluntary relinquishment thereof by its owner or holder, with the intention of terminating his ownership, possession, and control, and without vesting ownership in any other person.” A title in fee simple cannot be lost by mere abandonment (Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150), and abandonment is not usually mentioned as a method by which a life estate may be extinguished. (Restatement, Property, section 152; 21 C. J. 969.) In Spencer v. Smith, 74 Kan. 142, 145, 85 Pac. 573, it is stated that as a general rule title to land cannot be lost by abandonment. Surrender was a recognized mode of conveyance at common law. In 2 Tiffany on Real Property, page 1578, it is stated: “ ‘Surrender’ has been defined as a yielding up of an estate for life or 3rears to him that hath an immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement between them. Un fortunately, this technical meaning of the word, as referring to the transfer of an estate, has been somewhat obscured by its frequent use in an untechnical sense, as referring to the relinquishment or yielding up, not of an estate, but of the physical possession of the premises, as when the lessee covenants to ‘surrender’ the premises in good condition at the end of the term, and the courts frequently fail clearly to distinguish between such a surrender of possession and a surrender, properly so called, of an estate for life or years.” One mode of surrender — by operation of law — occurs where the tenant relinquishes possession, and possession is resumed by the reversioner, the landlord. The theory of such surrender is that the revesting of possession in the landlord to the exclusion of the tenant is inconsistent with the continuance of the outstanding leasehold. (2 Tiffany, Real Property, 1583.) Assuming the doctrine of surrender by operation of law could be applied to a term created under a will, it could have no application to facts alleged in the petition. The remaindermen never took possession of the premises; on the contrary, it is alleged that possession has been held by Ele and those claiming under him. A mere declaration by Ele to third parties that he owned no real estate would not forfeit his estate or extinguish his title, and no question of estoppel is raised. That certain interests in land — for example, an easement — may be lost by abandonment is well settled. All we determine is that under the facts alleged the term of years here in dispute was not extinguished by abandonment. 5. It was alleged in the petition that Ele had permitted the improvements on the premises, which were of considerable value, to deteriorate until at the time when he vacated the premises the improvements were practically worthless, and that he cut “a number of large oak trees and other trees growing around a pond used for watering cattle.” It was further alleged that any interest Ele had in the premises “terminated when he abandoned the property, failed to pay the taxes on the same, and permitted waste to be committed thereon.” Usually the owner of an estate for years is the tenant of a landlord who owns the reversion and to whom a stipulated rent is payable. In such case the protection accorded to the landlord for injuries to the inheritance by the tenant is governed by the law of landlord and tenant. We are confronted with a term of years created by a will where the owner of the term is exonerated from any obligation to pay rent. Ordinarily a life tenant holds his estate rent free. The protection afforded the remaindermen in the instant case as regards waste would appear to be analogous to the protection afforded remaindermen after a life estate. Adjudications on the point are scanty. (See Restatement, Property, Scope Note to ch. 13.) By statute in some states multiple damages for waste may- be imposed on a tenant for life or years, and in some a forfeiture is imposed. (Simes, Future Interests, §§ 620, 621.) We have no statute permitting the forfeiture of a life estate or a term of years for waste. Our statute G. S. 1935, 67-523, provides that a person who has an estate in remainder or reversion may maintain an action for waste for injury to the inheritance, notwithstanding an intervening estate for life or years. It was an established principle of the common law that the person complaining of waste must have an immediate inheritance without an intermediate estate of freehold. Hence, where there was a limitation to A for life, remainder to B for life, remainder to C in fee, no action for waste could be maintained by C during the continuance of B’s intervening estate. The evident purpose of this statute was to change the ancient feudal rule. It has no significance here except that it is a statutory recognition of the protection accorded the remaindermen for waste. The remedies available to the owner of an indefeasibly vested reversion or remainder in fee against the possessory life tenant who commits waste are numerous. He may recover compensatory damages for the injuries sustained. He may have injunctive relief in equity, or in a proper case may ask for a receivership. (Simes, Future Interests, § 616.) It would seem the same remedies are available against a tenant for years who holds under a will without duty to pay rent. Plaintiff argues the remainders are indefeasibly vested. Assuming that this contention is well founded, the remedies available are ample, but the drastic penalty for forfeiture, in the absence of a statute, is not permitted by the common law. In what has been said we have assumed the parsimonious allegations in the petition were sufficient to raise a question as to permissive and voluntary waste. 6. As stated, plaintiff contends the remainders were indefeasibly vested. The fourth clause provided that at the end of twenty years after the death of the testator, the real estate described was to go “to the sons and daughters of my brother, William Harrison Hicks, and Dow Hicks, and my sister, Sarah Hickman.” The petition alleges that the probate court found that certain persons, eighteen in number, were the “owners of the remainder of this property.” It is not alleged that the persons named in the probate proceedings were the children of William and Dow Hicks and Sarah Hickman mentioned in the fourth clause of the will. It does not appear in the petition whether the ancestors mentioned in the will are living or dead, and, if dead, whether they were dead at the date of the will. A gift to the “sons and daughters” of a person is equivalent to a gift to the “children” of such person. The gift to the children of William Harrison Hicks was a class gift. If William was dead at the date of the will, leaving, for example, five children, it is evident membership in the class could not increase. It could, however, decrease before the death of the testator. If two of the supposed group of five children died before the testator, the three surviving would take. Therefore, the children of William living at the death of the testator would constitute the class entitled to take. (Simes, Future Interests, § 366.) But, if William is now living, the class could increase by the birth of other children before the date of distribution — the end of the twenty-year period. There is authority for the view that the class would then close and any children of William born after the end of the twenty-year term would be excluded. (Simes, Future Interests, § 380.) The limitation of the remainder in the fourth clause was to “the sons and daughters of my brother, William Harrison Hicks, and Dow Hicks, and my sister, Sarah Hickman.” The word brother is in the singular number. Was the gift to the children of William as a class, and to Dow and Sarah as individuals? If so, did the children of William take one-third of the remainder as a class, with one-third to Dow and one-third to Sarah, as individuals? Or did the testator consider the children of William together with Dow and Sarah as constituting the members of one class? If so, then if William had predeceased the testator and at the death of the testator had three children, such children with Dow and Sarah would constitute a class of five, which would be vested. It could be argued, however, that the remainder was to all the children of the three persons named, William, Dow and Sarah, as constituting one class. If such persons were all dead at the date of the will, their children alive at the death of the testator woidd take. If William, Dow and Sarah are now living, any children born to them before the end of the twenty-year term — the period of distribution — would become members of the class. It is therefore clear that whether the remainder to such children is indefeasibly vested, or vested liable to open and admit children born before the date of distribution, depends on facts not disclosed by the petition. Plaintiff has predicated his right to partition on the theory that the interest acquired by Ele was not an estate for years, but a mere right of use and occupancy; that whatever interest he acquired was either extinguished by his death or forfeited by failure to pay taxes, by abandonment, and by voluntary and permissive waste; that the remainder interests were indefeasibly vested, and that the interest of plaintiff as transferee of such remaindermen was accelerated, giving him the right of possession. From our examination of the various points raised we are clear these claims are not well founded. It follows that the judgment of the trial court must be affirmed. It is so ordered.

The opinion of the court was delivered by Hoch, J.: This was an action in mandamus to compel a school board in a rural district to call a special meeting for the purpose of voting on the question of the adoption of a budget to maintain a high school. The district court granted the writ, and defendants appeal. The questions presented are whether the plaintiffs are entitled to maintain the action, and whether it was within the power of the court to direct the board to call the special school meeting. The latter question will be first considered. Although the record is silent on the point, we assume the statutory provision involved is 72-401, G. S. 1937 Supp. Following the provisions for the regular annual meeting on the second Friday in April, the section provides as follows: “Special meetings may be called by the district board, or upon a petition signed by ten legal voters of the district,” etc. It may first be noted that no question is here presented or considered as to whether the matters which, under the terms of the statute, are considered at the regular annual meeting may be determined at such special meetings, when the annual meeting has already been held. We are now concerned only with the power to compel the calling of the special meeting. While recital of a very few facts in the case would suffice for determination of the question of law, it may be helpful to tell the story briefly. For many years an accredited high school has been maintained by school district No. 1, in Allen county, which operates under the Barnes high-school law. The annual school meeting was held in April, 1939, following which the clerk of the board certified the school budget for the following school year to the county clerk, as the statute provides. The budget certified was for $800. This was sufficient only to maintain the grade school, and meant discontinuance of the high school. Whereupon various petitions were presented to the board of directors of the district asking for the calling of a special meeting to reconsider the matter. The board having refused or failed to call such a meeting, this action in mandamus was brought in the district court to compel them to do so. The plaintiffs alleged, in substance, that prior to the annual meeting there had been misrepresentations by members of the board, particularly with reference to the tax levy that would be necessary if the high school were continued, and that at the meeting there were further misrepresentations; that after a budget of $3,800— sufficient for continuing the high school — had been adopted, a statement was made to the meeting by the clerk of the board that he had information from the state superintendent of public instruction — in a letter which he said he had misplaced — to the effect that if the district desired to continue the high school it would be necessary to have a direct vote upon that question, and that thereupon such a vote was taken, resulting in a small majority against continuance; that another vote was later taken on the budget, after some of the electors had left, and a budget of $800 was adopted; that subsequent to the meeting it was discovered that the letter from the state superintendent did not make the statements as reported by the clerk, and that all of this — and other alleged acts not necessary to recite — was carried on “in furtherance of a predetermined plan, scheme, design and conspiracy” on the part of members of the board to force a discontinuance of the high school. The minutes of the meeting were put in evidence and the salient recitals therein are as follows: “Motion made for $3,800 budget and carried. “High school voted out— For high school 40 votes. Against high school 42 votes. Eight months’ school voted for grades. Voted $800 budget for grade school. These minutes read and approved.”' It clearly appeared at the hearing in the district court, on the motion for the writ of mandamus, that the annual meeting had been a spirited one, and that a great deal of feeling developed. It was alleged, among other things, that the presiding officer arbitrarily refused to entertain a motion for reconsideration of the question, and it was also contended that the certification of an $800 budget was irregular because the previous adoption of a $3,800 budget had not been rescinded. But the regularity of the meeting or the validity of the certification to the county clerk are not involved in this proceeding. The trial court made no finding of fraud or conspiracy, but found that “there was a misunderstanding about the rights of the district and what they could do and what they shouldn’t do, or what they would have to do.” In commenting upon the matter before announcing the decision, the court said: . “There seems to have been a misunderstanding, at least, on the part of certain of the voters, relative to what some state official, or state board, or state superintendent, or state board of education had said in regard to the school. Well, that shouldn’t have been in that meeting at all. That is unfortunate. Maybe the clerk tried to state what he understood from the letter introduced by the plaintiffs, but it hardly seems a letter capable of the interpretation as was stated at the meeting; but, of course, I don’t know as you could say that anybody just fraudulently or willfully or intentionally tried to deceive somebody else, because lots of times, in making statements of things, we all get kind of mixed up, and in trying to give an account of something, we might give the wrong impression.” The question as to whether the provision in section 72-401, relative to the calling of special meetings by the school board, is permissive or peremptory in character, is not a new one before this court. It was squarely presented in the case of State v. School District, 80 Kan. 667, 103 Pac. 136. The decision hinged upon the interpretation of the word “may” in the provision of that section heretofore cited. It was there held that the word “may” is permissive rather than peremptory and a writ of mandamus was refused. Among other things, the court said: “The contention is that the provision that special meetings may be called by the district board or upon a petition signed by ten resident taxpayers of the district means that the board not only may, but must, call the meeting upon the presentation of the petition. Primarily and as ordinarily used in a statute, the word ‘may’ is permissive rather than peremptory. It is sometimes regarded as synonymous with ‘must,’ as, for instance, ‘where public authorities are authorized to perform ah act for the benefit of the'public, or for ah individual who has a right to its performance.’ (Phelps v. Lodge, 60 Kan. 122, 124.) It should be given its ordinary meaning, however, unless the terms and provisions of the statute compel the other view. As was said in In re McCort, Petitioner, 52 Kan. 18, ‘the sense in which the word is used must always be determined from the context of the act.’ (p. 20.) “Looking at the word in the connection in which it is used in the statute quoted, it can hardly be said that the obvious intention of the legislature was to make the calling of a special meeting an imperative requirement. It does not appear that either the interest of the public or of third persons compels the exceptional interpretation. The legislature has provided for an annual school meeting, at which the important affairs of the district are to be decided. Among other things to be done at this meeting are the election of officers, the designation of a site for a schoolhouse, the making of provisions for the purchase or lease of a site or the sale of one no longer in use, the building, hiring or purchasing of a schoolhouse, the repairing or the furnishing of a schoolhouse with necessary fuel and appendages, the payment of floating indebtedness, the voting of a tax and apportioning the amount to be used for the payment of teachers and other purposes, deciding the length of time the school shall be held, as well as to give directions and make provisions for any litigation in which the district is a party. (Gen. Stat. 1901, § 6127.) Specific provision is made for a special meeting where the time for the regular meeting has been allowed to pass without the holding of one. It can hardly have been intended that when a meeting has been held and questions like those enumerated have been decided the same questions can be reopened at the instance of ten dissatisfied petitioners. ... If questions which provoke controversy, like the selection of a site, could b'e reopened whenever ten disappointed taxpayers might ask for another vote, dissension and disorder would prevail in many districts much of the time. . . . “This case illustrates the wisdom of leaving the calling of a special meeting to the discretion of the district board.” (pp. 669, 670, 671.) In announcing its decision the trial court referred to the above-quoted decision, expressed disagreement with it, and made some comment concerning Chief Justice Johnston, who delivered the opinion for the court. The memory of the late, beloved chief justice needs no defense, and extraneous comment concerning the matter would have as little place here as it had in the trial court. Suffice it to say that the decision in the case of State v. School District, supra, has stood as the established interpretation of the statute for more than thirty years and in no case that we have been able to find has it been disregarded or modified. It has been cited in other cases and was specifically followed in the case of Cline v. Wettstein, 99 Kan. 404, 161 Pac. 617. No persuasive reasons have been advanced for now reversing the holding of those cases. Neither the trial court nor this court is charged with responsibility for provisions of existing law or for saying what they think the law ought to be, but both are responsible, upon issues properly presented, for determining as best they may, without fear or favor, what the law is. Although a determination of the question of whether the appellees here were entitled to maintain an action in mandamus is not required, inasmuch as the conclusion heretofore stated disposes of the case, we make brief reference to it. The general and well-established rule is that mandamus is an extraordinary remedy, discretionary in character, and it may ordinarily be brought only on relation of the proper public officials, and that private citizens may maintain it only where they have a special and peculiar interest in the matter not common to the public generally. The line is not always easy to draw, and it is not necessary to discuss here the various decisions of this court on the point cited by appellants and appellees. Perhaps the decision of this court nearest in point is the case of Gormley v. School Board, 110 Kan. 600, 204 Pac. 741. In that case certain resident electors and taxpayers of a rural high-school district brought an action in mandamus to compel the school board to call a special election to vote on the “disorganization” of the high-school district. It was held that the petitioners did not have such a special or peculiar interest in the matter as to entitle them to maintain the action. Appellees discuss that case and distinguish it from the instant case on the basis of certain statements made in the opinion. They call attention to the argument made in the other case that the petitioners were not seeking to secure school advantages for their children, but were seeking to discontinue a school that had already been established, and that if they did not want their children to attend high school they could accomplish that purpose without resorting to a' writ of mandamus. Appellees urge that it is a fair inference from the argument made in the opinion that the court would have held petitioners entitled to maintain the action if they had been seeking to secure school privileges in the district rather than the discontinuance of the school. Whatever force there may be in appellees’ contention, we need not here speculate as to what the court might or would have done if a different situation had been presented to it. A determination of the question is not necessary in the case here presented. The judgment is reversed with directions to deny the writ.

The opinion of the court was delivered by Smith, J.: This was an action whereby the plaintiff sought to be declared a mortgagee in possession. Judgment was for defendants. Plaintiff appeals. The action was filed February 28, 1938. It was based upon a note dated June 21, 1929, executed by the defendants to the plaintiff for $1,600, payable in monthly installments of $22.50 until the note and interest was paid. This note was secured by a mortgage upon a town lot in the city of Independence. The defendants lived in the property until sometime prior to February 16, 1934, when they moved to Coffeyville and rented the property. On that date, at the request of plaintiff, he executed and sent to the tenant a written instrument as follows: “February 16, 1934. “Mr. Schroeder: “Please pay to the Independence Savings & Loan Association, 112 E. Myrtle, Independence, Kansas, all rents due me until further notice.” The tenant to whom defendant had rented the property occupied it until January 14, 1938, a period of almost four years, when he vacated it and handed the keys to plaintiff. Plaintiff entered upon the property, made repairs and rented it to another tenant. Plaintiff collected rents in the sum of $468.75, made repairs in the amount of $205.17, and paid taxes in the sum of $347.18. The rents collected were not sufficient to pay these items and the interest on the note. Plaintiff alleged facts about as they have been detailed. In addition the petition contained the following allegation: “V. Plaintiff further states that prior to the 16th day of February, 1934, the defendants vacated said property, and on the said 16th day of February, 1934, executed an assignment of the rents to this plaintiff, a copy of which is hereto attached, marked ‘exhibit E’ and made a part hereof, and plaintiff immediately, upon the delivery of said assignment, went into possession of said property, and has ever since remained in possession as mortgagee in possession, and has collected and received all rents and applied the same on taxes, repairs and interest.” The prayer was that plaintiff be.declared to be a mortgagee in possession; that the amount due on the note be determined; that it be given a judgment for the amount of the note and for taxes and repairs in the sum of $1,968.13 and for an order fixing the period in which defendants might redeem, and on their failure to redeem that they be barred of any interest in the property. The defendants answered that the real estate in question was their homestead; that they had been temporarily away because of employment in Coffeyville; that when they left they placed a tenant 'in possession; that they never delivered possession of the property or authorized the plaintiff to take possession or authorized anyone else to deliver possession to the plaintiff. The answer prayed that they be declared to have an eighteen-months period in which to redeem the property, and that they be granted the possession of the premises and the right to all rents and profits therefrom during the eighteen months. The reply was a general denial. It will be seen that many of the facts were not contested. The trial court made extensive findings, among which were the following: “VI. The court further finds that plaintiff collected rents from said tenant Schroeder up to January 14th, 1938, and that on said date said tenant Schroeder vacated said property and delivered keys to the plaintiff association without defendants’ knowledge or consent; that immediately plaintiff went into possession of said property and made repairs, and on the 23d day of February, 1938, plaintiff rented said property to one Myrtle Roberts, all of which was done without any notice to, or knowledge of, the defendants that Schroeder vacated the property or turned the keys to plaintiff, or that plaintiff had taken possession until about ten days prior to the time this action was commenced. “IX. The court further finds that the plaintiff is not in lawful possession as ‘mortgagee in possession’ and that the defendants are entitled to eighteen months’ period of redemption.” Judgment was rendered in accordance with these findings. This appeal is from that judgment. The first argument of plaintiff is that the letter from defendants to the tenant and the collecting of rents, making repairs and payment of taxes with the consent of defendants establish that it was in possession of the premises. The letter written by defendants to the tenant goes far to disprove that plaintiff was in possession. Had plaintiff been in possession it would have needed no letter. Furthermore, the correspondence between plaintiff and defendants was carried on on the theory that the defendants- were in possession. On December 17, 1934, plaintiff wrote defendants urging them to make a small payment on the contract over and above the rental payments. If they had any idea of being in possession of the property as mortgagees they would not have written this letter. On January 3, 1935, they asked defendants to make a small payment on the interest. Likewise on May 5,1936, plaintiff wrote defendants a letter asking for additional payments on the interest. In Rice v. Capitol B. & L. Ass’n, 141 Kan. 192, 40 P. 2d 361, this court held: “The question whether a mortgagee of real property is in possession under such circumstances as to be a mortgagee in possession is largely a question of fact.” (Syl. f 1.) The burden was on plaintiff to establish that it was a mortgagee in possession. It did not sustain this burden in this case but, on the other hand, the evidence convinced the trial court that it had never had possession. We cannot disturb this finding. Plaintiff next argues that the act of plaintiff in renting the property to the tenant on February 23, 1938, and making repairs constituted it a mortgagee in possession. This entering was made possible because the tenant to whom defendants had rented the property handed the key to an employee of plaintiff when they vacated. This act of the tenant conferred no right or authority on plaintiff to enter this property. • It could not obtain any greater right from this transaction than it had before. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This action originated as a proceeding under the workmen’s compensation act. On March 10, 1937, the respondent construction company was engaged in digging a sanitary sewer. The appellant, one of its workmen, was employed in operating its excavator. By some mishap a crane carrying a load of tile was swung over his head; then something broke and he was hit on the head and knocked unconscious, and his collar bone, right shoulder and back were injured. Without any ado his employer began paying him compensation at the rate of $14.40 per week and so continued until June 2, a period of 12 weeks, a total of $172.80. On June 4 appellant filed a formal claim for compensation. A hearing was held thereon on July 15, at which time respondent paid him five weeks’ additional compensation, $72. The examiner for the commission found that claimant was still suffering from his injuries and was under temporary total disability and entitled to compensation at the rate of $9 per week for a further period of 26 weeks, which aggregated compensation payments for 43 weeks altogether. This award was made accordingly by the compensation commission on July 27, 1937. A month later a stipulation and agreement on behalf of claimant and respondents was filed with the commission reciting in brief the substance of the foregoing award and alleging that— “The claimant is desirous of making a lump-sum settlement of 95% of the balance ($153) still due and owing on said award, and the respondent and the insurance carrier are willing to pay 95% of said $153 balance of award” — to wit, $145.35. It was further stipulated that this lump-sum settlement was being made at the request of the claimant. On August 28, 1939, the compensation commission made an order incorporating these antecedent details, and continuing thus: "Now, therefore, the commissioner being duly advised in the premises, is of the opinion that the award heretofore made on July 27, 1937, should be modified in accordance with the agreement of the parties. “Wherefore, the award heretofore made on July 27, 1937, be and the same is hereby modified to an award of one hundred forty-five and 35/100 ($145.35) dollars, and the agreement of the parties that same be paid in one lump sum is hereby approved; the award of July 27, 1937, to otherwise remain in full force and effect.” Pursuant to this order, respondent paid the balance due thereon, also the hospital and medical expenses, $62.40, the regular fees of the commission, $25, and of its reporter, $48.50. The requisite receipts pertaining thereto were filed on September 8, 1937. Some five months thereafter, on February 3, 1938, claimant filed with the compensation commission an application to reopen the proceedings summarized above and to set them aside on alleged grounds of mutual mistake, inadequacy of the award and his continued incapacity. This application was denied on February 10, 1938. The order of that date contains the following: “The judgment of the commissioner is that at this time he has no jurisdiction in this matter, as the modification of award issued on August 31, 1937, became a finality when no appeal was taken within twenty (20) days.” On February 24, 1938, a second application was filed with the commission, in which claimant alleged that the stipulation and agreement which he signed on August 28, 1937, pursuant to which the compensation commissioner had entered the order modifying the award, was the result of a mutual mistake of fact, and that the lump sum paid him by respondents in accordance therewith and for which he had given a receipt was wholly inadequate; that instead of a temporary total disability of 43 weeks, as found by the commission, claimant was still totally disabled and would continue so to be for the rest of his life. Claimant’s application concluded with a prayer that the matter be set down for hearing touching the mutual mistake of fact, and for an award for total disability. Respondents met this application with a motion to dismiss, giving a recital of all the antecedent proceedings, invoking the provisions of G. S. 1935, 44-528, and challenging the jurisdiction of the commission. On March' 28, 1938, the commission, although adhering to its ruling of February 10,1938, laid aside for the time being the question of its further jurisdiction, and granted a hearing on claimant’s second application filed on February 24. By agreement of the parties the entire antecedent record and files of the claim, including the transcript of the evidence, were to be considered by the commission in this belated hearing. Claimant gave testimony of his continued total incapacity. Dr. Hunter Duvall testified that he had recently examined the claimant and had discovered no improvement in claimant’s physical condition, which, he said, was “pretty good evidence that (he, the witness) was wrong,” when at the previous hearing he had testified that claimant “would be well within a period of about six months.” At the earlier hearing Doctor Duvall had testified that the duration of claimant’s injury could not then be predicted. His earlier testimony had been: “The chances are the motion will increase as time goes on.” Also, at the earlier hearing, a Doctor Butler had testified that he thought claimant would be permanently disabled to some extent. Two other doctors, who had given testimony at the former hearing, also testified to the claimant’s continued incapacity. But neither of the latter had given a positive opinion at the earlier hearing that claimant would fully recover in six months. Respondents introduced no testimony further than what was in- eluded by the stipulation that all the antecedent record was to be considered. On April 6, 1938, the compensation commission denied the application of February 24, but in its order to that effect it added this recital: “The evidence . . . discloses that claimant has not recovered from the injury received March 10, 1937, and is unable to return to his usual work or perform manual labor at this time; and claimant testifies that he had heard the testimony given by the doctors on July 15, 1937, and took their testimony and diagnosis of the case as correct, and felt that possibly within three to six months he would be able to return to his usual work, and entered into a lump-sum settlement.” From this order denying claimant’s second application to set aside the original award and its modification and the lump-sum settlement, claimant appealed to the district court. Respondents filed a motion to dismiss, reciting all the pertinent facts and invoking G. S. 1935, 44-528. In an opinion and decision rendered on January 12,1939, the trial court construed the statute in favor of claimant, but also held that “there is nothing before this court upon which it can base a finding of fact as to the (alleged) mutual mistake.” Respondents filed a motion to modify these rulings and for additional findings, whereupon the court reconsidered the legal questions presented, set aside its judgment of January 12, and on February 25 gave judgment adhering to its former ruling as to the law of the case — that it was the duty of the compensation commission to entertain and consider claimant’s second application filed February 24, 1938; but the court further held that as the commission had in fact permitted claimant to present testimony on the subject of his continued incapacity, such testimony considered together with all the evidence which had been taken at the prior hearing on July 27, 1937, did not constitute sufficient evidence upon which a further award of compensation could be made. The trial court therefore concluded that the order of the commission refusing to set aside the award of July 17, 1937, and the modification thereof entered on August 28, 1937, should be affirmed. Claimant appeals, contending that the first award and the later modification thereof were the result of a mutual mistake of fact, and that G. S. 1935, 44-528, was not controlling. Respondents present a cross-appeal, still contending that the compensation commis sion did not have jurisdiction to entertain claimant’s second application of February 24, 1938, and that the trial court erred in ruling to the contrary. The principal legal question we have to decide is whether G. S. 1935, 44-528, governs the controversy. So far as here pertinent it reads: “At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party . . If the award in this case had stood as originally made by the commission — $9 per week for 26 weeks, plus the amount theretofore paid by the employer before the claim was filed with the commission, $14.40 per week for 12 weeks, plus the amount paid on order of the commission at the time of the hearing, $14.40 for 5 weeks, and such future payments for 26 weeks had been made in accordance with such original award, the date of such final payment would have matured on January 25, 1938, certainly the statute we are considering would have been an absolute bar to any further review of the award on claimant’s application filed February 3,1938. Is the bar of the statute any less potent because the original award was modified by agreement of the parties, when such modification was approved by the commission and the award thus modified has been complied with and paid by the employer, all in conformity with the procedure outlined in the statute G. S. 1935, 44-526, and as prescribed by the compensation commission? We think not. A mollification of an award is to all intents and purposes a new award when approved by the compensation commission. (Dobson v. Apex Coal Co., 150 Kan. 80, 83, 91 P. 2d 5.) Our attention is directed to the preceding section of the compensation act (G. S. 1935, 44-527), in which it is provided — it would be more accurate to say it is implied — that at any time within one year after the date of an agreement, release of liability, final receipt, or agreed modification of an award filed with and approved by the commission, either the claimant or his employer may institute proceedings to set either of these matters aside. This apparent inconsistency between these two sections of the act has frequently taxed the ingenuity of the bench and bar, as well as the compensation commission, to determine which of them governs in a particular case. (Mishler v. Kelso Grain Co., 133 Kan. 38, 41, 298 Pac. 655; Hurst v. Independent Construction Co., 136 Kan. 583, 16 P. 2d 540; Farr v. Mid-Continent Lead and Zinc Co., 150 Kan. 292, 92 P. 2d 124.) The trial court, in the instant case, held— “The two sections of statute are just inconsistent, but reason, right and justice demand that the court follow the first section, G. S. 44-527, providing for a year’s statute of limitations, rather than G. S. 44-528, which operates in effect as an immediate bar to the bringing of any action to set aside awards and so forth on the ground of fraud, mutual mistake or practically anything else. Therefore, this court is of the opinion that the workmen’s compensation commission was in error in holding that it was without jurisdiction to hear and determine the matter.” This court has often said that a trial court’s reasons for its decision are not important if the decision itself is correct. (In re Estate of Dennis, 146 Kan. 121, 126, 68 P. 2d 1083.) But a conflict or apparent inconsistency of sections of statute cannot be disposed of by a mere judicial ruling that one section of a statute is right and just and therefore to be applied and enforced, and that another section is wrong and unjust and therefore is to be ignored and discarded. Where general rules and principles of law are discovered and developed by lawyers and judges, a choice between such of these as may be in conflict is altogether proper; but where we are dealing with statutory enactments the intention of the legislature is the unquestionable authority on what is right and just — not what lawyers and judges think it ought to be. And in every problem of statutory interpretation an assiduous effort must be made to find an operative field for every word and phrase of the legislative enactment. (Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042; Harkrader v. Whitman, 142 Kan. 186, 192-193, 46 P. 2d 1.) Certain aspects of G. S. 1935, 44-527 and 44-528, which provide for enlarging, diminishing or terminating an agreement concerning compensation or an award of compensation, at the instance of workman or employer, within one year after such agreement has been effected or such an award has been made, have been part of the compensation act since its first enactment. (Laws 1911, ch. 218, §§ 29, 32. G. S. 1915, §§ 5923, 5926.) Those provisions were rewritten with some procedural changes in 1917. (Laws 1917, ch. 226, §§ 15, 16, R. S. 44-527, 44-528.) In 1927 the act was again revised (Laws 1927, ch. 232, G. S. 1935, 44-501 et seq.). This is the last expression of the legislative will on the two sections of the act under present scrutiny. In section 27 (G. S. 1935, 44-527) the principal change from its earlier text was the addition of a proviso which reads: “Provided, No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the commission.” As already quoted, section 28 (G. S. 1935, 44-528) provides for a review of an award or modification thereof agreed upon by the parties “at any time before but not after the final payment has been made.” It will be noted that in the language of section 27 quoted above the right of workman or employer to institute proceedings within one year to set aside an agreement, release of liability, final receipt' or agreement modifying an award, is recognized, although not expressly granted. However, such right is expressly granted in the first five lines of the succeeding section (sec. 28). and such proceedings may be instituted at any time before but not after final payment has been made. Considering these sections together, it seems reasonably clear that there is a field of practical usefulness for both these statutory regulations. Ordinarily the allowance of compensation, however it was fixed, by agreement, award, or otherwise, may be reviewed — that is, enlarged, diminished, or terminated — at the instance of either party, unless final payment has been made. If final payment has been made, a complete finality is thereby reached, and no further proceedings can be entertained by the compensation commission. It follows that the compensation commission’s ruling that it had no jurisdiction to hear claimant’s application for a further review of the award after final payment of the modified award had been made was correct and should have been sustained by the trial court. In view of this conclusion it seems rather superfluous to consider the second point of this appeal, but it can be disposed of in short order. The trial court made a finding of fact that a consideration of the entire record did not disclose sufficient evidence on which a further award of compensation could be made. Certainly on this phase of the appeal, no error in that finding is made to appear. While certain doctors testified that in their prior testimony on which the award was originally made, they had been mistaken as to the extent and duration of claimant’s disability, yet there was also testimony that claimant’s injuries had never been so serious or painful as he and his witnesses had represented. Thus, one witness, an orthopedic surgeon, testified: “This man shows a tendency to be stoop-shouldered. ... I got the impression that he didn’t have as much pain as he complained of. . . . In my judgment his limitation of motion is caused by his round-shouldered attitude. In my opinion the injuiy received on March 10 is not the cause of the present trouble with his back. . . . “Q. As far as any injury to the back he received at the time on March 10, that is entirely recovered? A. I think so, I think his back condition, I think his back is just the same now as it was before the injury. . . .” One of the basic grounds on which claimant sought to reopen the proceedings was that of mutual mistake. But, however he and his witnesses may have been mistaken as to the extent and probable duration of his disability, he certainly did not adduce any convincing evidence that such mistake was mutual — that his employer as well as himself had been mistaken at the time the award was made or at any time thereafter. In that respect, if this proceeding had been otherwise maintainable, claimant failed in his proof of mutual mistake. In Gardner v. Ark Warehouse Co., 148 Kan. 190, 80 P. 2d 1066, where the seemingly persuasive force of the evidence in behalf of claimant was emphasized, we said: “We must remind counsel of the very limited scope of appellate review conferred by statute on this court. We have jurisdiction of questions of law only. (G. S. 1935, 44-556.) Whether the evidence adduced would support the plaintiff’s claim, if given the most generous credence, is not for this court to decide. . . . Nowhere in our reports, however, will a case be found where we have substituted our judgment for that of the compensation commissioner and the trial court where they have held the evidence insufficient to support an award to the workman or his dependents under the terms of the act.” (pp. 192, 193.) In view of the foregoing, on claimant’s appeal the judgment must be affirmed, and on the cross-appeal it must be reversed. It is so ordered.

The opinion of the court was delivered by Dawson, C. J.: The action arose out of a highway collision between defendants’ truck and an automobile in which plaintiff rode between her sister and a third person in the front seat. The details of the collision are fully narrated in the companion case brought by plaintiff’s sister, reported in Witt v. Roper, 149 Kan. 184, 86 P. 2d 549. In the present case liability was confessed. The only issue involved was the extent of plaintiff’s injuries and the consequent amount of damages to which plaintiff was entitled. The jury returned a general verdict for $2,750 and answered special questions thus; “1. What amount do you include in your verdict for plaintiff, if any, for shock to the nervous system? A. $750. “2. What amount do you include in your verdict for plaintiff, if any, for permanent scars on her face? A. $1,500. “3. What amount do you include in your verdict for plaintiff, if any, for pain and suffering? A. $500.” Judgment was rendered accordingly, and defendants assign two errors for appellate review: (1) improper and persistent effort of plaintiff’s counsel to lead the jury to infer that defendants carried liability insurance, and (2) excessive verdict. It may be advisable to consider the significance of these complaints together, but in examining them separately we note that at the threshold of this lawsuit the first juror called was a Labette county farmer, and on his voir dire the first question propounded to him was— “Q. Have you ever been, or are you now, a stockholder in any insurance company that has for its principal business the issuance of insurance policies to protect its policyholders from liability in accidents on the road? A. No. None whatever. “Q. So far as you know, has any member of your family occupied such a position? A. No, sir. “Q. Have you ever been an agent of any insurance company? “[Counsel for defendants]: . . . Objection. “By the Court: Objection sustained. Don’t follow that any further, On the examination of the second juror, another farmer, the record reads: “Q. Are you at this time, Mr. Hittle, or have you ever in the past been a stockholder or otherwise financially interested in any insurance company that has for one of its performances the issuance of insurance policies to protect its policyholders against accidents occurring on the road? A. No. “[Counsel for defendant]: The defendant objects to this. It doesn’t seem to be proper examination. “By the Court: It won’t be necessary to ask each juror. Ask the general question to the jury and then drop the matter.” On the voir dire of another j.uror who was engaged in the real-estate and insurance business, counsel for plaintiff propounded this question: “Q. Mr. Walker, if it should develop in the trial of this case that Vivien Witt was returning home from school, returning to her father’s farm home from school riding with her sister, on this paved road east of Parsons about October 18, 1938, and the truck driven by this Homer Hanna, alleged to have been driving at a high rate of speed, left his line of traffic and ran into the car in which these girls were riding, and breaking all the glass out of the Witt car and injuring Vivien about the body, and she fainted in a short time, and leaving a permanent scar across her forehead, is there anything in your experience, if such a situation as that was shown, that would prevent you or embarrass you in returning a substantial verdict in this case? A. No. “Q. If, under the evidence the automobile which is being . . . “[Counsel for defendants]: The defendant objects to this method of examination, on the ground that it is prejudicial and improper. “By the Court: Yes. Don’t go too much into the details.” In the course of the trial Dr. John D. Pace, called as a witness for defendants, gave testimony touching the extent of plaintiff’s injuries, and at the inception of his cross-examination the record reads: “[Counsel for plaintiff]: Q. Doctor, who did you report to, to make this examination of the plaintiff? A. The insurance company. “Q. You made your examination and were paid by whom? “[Counsel for defendant]: Object to that on the grounds it is incompetent, irrelevant and immaterial, and not proper ethics. “By the Court: Objection sustained. “Q. I will ask you, doctor, if you were paid, and if so, how much you were paid for making this examination on behalf of the defendants in this case? “[Counsel for defendant]: Object to that on the grounds it is incompetent, irrelevant and immaterial. “By the Court: Objection sustained. “Q. At that time you were told, and made notations such as might be required of you for giving testimony in a lawsuit, if any lawsuit should ever come up; is that right? A. No, sir. “[Counsel for defendants]: Object to that oh the grounds it is incompetent, irrelevant and immaterial. “By the Court: Objection sustained. “Q. You are — . I will ask you, doctor, if you weren’t paid as an expert witness by the defendant to come down here today and give your testimony? “[Counsel for defendants]: Object to that on the grounds that it is incompetent, irrelevant and immaterial. “By the Court: Overruled. “A. No, sir. I was just served by subpoena. I didn’t know nothing about it until they called me up.” “Q. Well, you made that in your report, didn’t you? A. No; no, sir. “Q. Will you read that part of the report which you rendered to the company— “[Counsel for defendants]: Now, we object to that on the ground that'it is incompetent, irrelevant and immaterial, and not ethical.” The abstract states that— “At this point the court called plaintiff’s attorney and defendants’ attorney to his desk, and in a low voice . . . said [to counsel for plaintiff], T warn you not to pursue the matter of insurance any further, and if you do, the court will declare a mistrial of the case.’ ” On the motion for a new trial affidavits of three jurors were presented. These averred that the fact that defendant was protected by indemnity insurance was repeatedly mentioned by several of the jurors in the course of their deliberations. It should go without saying that in a venire of Labette county farmers, a janitor, employees in local stores, and a common laborer, the possibility of any one of them being a stockholder in a liability insurance company or personally' interested in its profits or losses so as to affect his impartiality as a juror was so remote that it is difficult for a reviewing court to accord to litigants the presumption of good faith in propounding questions which inevitably would plant in the jurors’ minds the notion that there was a deep pocket behind that of defendants out of which any amount of damages awarded to plaintiff would eventually be paid, so that even-handed justice between the litigants actually before the court would not be of first importance. The impropriety of implanting in the minds of the jury the likelihood that any damages assessed in a highway collision case will eventually be paid by some insurance company and not by a defendant in a lawsuit has often been considered and usually condemned by this and other courts. (Coffman v. Shearer, 140 Kan. 176, 181-182, 34 P. 2d 97; Pool v. Day, 141 Kan. 195, 40 P. 2d 396; Forsyth v. Church, 141 Kan. 687, 42 P. 2d 975; “Anno — Informing Jury of Liability Insurance,” 95 A. L. R. 388-417; id., 105 A. L. R. 1319-1338.) In Cannon v. Brown, 142 Kan. 700, 51 P. 2d 1007, we said: “This court frowns on the practice of using one means or another to give the jury a hint that the defendant is covered by liability insurance, . . .” (p. 704.) In Coffman v. Shearer, supra, which was an automobile collision damage suit, this court observed that the voluntary testimony of plaintiff’s wife to the effect that defendant had told her he carried a large amount of liability insurance contributed materially to the “ruin of her husband’s seemingly good case.” With even more pertinancy would such an observation apply to the case at bar. Here defendants’ liability was confessed. The only issue was the extent of plaintiff’s injuries for which damages should be allowed. And this leads to the question of the excessiveness of the verdict— never an easy question for an appellate court to decide. The plaintiff, a school girl, suffered three or four small cuts on her face caused by flying glass from the broken windshield of the car in which she was riding between her sister and another person. She was taken to the hospital and two stitches were taken in one of the cuts, and perhaps some stitches were taken in the others, and the cuts were bandaged. She was in the hospital about two hours and the treatment took about a half an hour. She was absent from school the following day, but thereafter attended regularly and made excellent grades. There was testimony that her body showed several bruises; that the scars on her face would be permanent; that she had become nervous and inclined to jump up when meeting another automobile on the highway; that she did not sleep well and sometimes cried in the nighttime. There was also some testimony that she had pain in her back and in her arm and side which continued for several months, and that she had some difficulty in walking upstairs. The jury’s verdict was for $2,750, and judgment was entered accordingly. A careful perusal of the record does^not convince this court that plaintiff’s injuries were serious. In comparison with the judgment in favor of her sister, which was for $1,800, for apparently much more serious injuries, this court might find it difficult to justify the amount of this judgment even if the matter of defendants having indemnity or liability insurance had not been unnecessarily and repeatedly injected into the case. The liability of defendants being conceded, of course there should be a substantial judgment for plaintiff; and the court concludes that the best disposition to be made of the present appeal is to give plaintiff the option of a judgment for $1,250 or a new trial, and that the cause be remanded with instructions to that effect. It is so ordered.

The opinion of the court was delivered by Dawson, C. J.: Leon Arthur Preston and Faye Vandaveer Preston, husband and wife, died of asphyxiation in their home in Osawatomie on December 6 or 7, 1936. They left no children or other descendants. Mrs. Preston died intestate. Mr. Preston left a will executed before his marriage. By its terms he devised all his property to the appellant, Margaret Helen Tovey. That his subsequent marriage to Mrs. Preston had the legal effect of reducing by one-half the extent of Mrs. Tovey’s interest in Mr. Preston’s estate, if Mrs. Preston survived her husband, is not controverted. Both husband and wife owned certain property in their individual names. They also held title to certain property in common, and both held insurance policies naming each other as beneficiaries. The devolution of these properties to the heirs of the husband or of the wife depends on whether the husband or wife died first; and to secure an adjudication of that question was the purpose of this lawsuit. Plaintiff claimed that Preston survived his wife. The defendants as heirs of Mrs. Preston claimed that she outlived her husband. This issue was properly joined by pleadings, and the cause was tried before a jury which returned the following verdict: “We, the jury empaneled and sworn in the above-entitled case, do, upon our oaths, find that Leon Arthur Preston, the husband, died before the time of the death of Faye Vandaveer Preston, the wife.” At the same time the jury returned an answer to a special question thus: “[Question]: If you find that Leon Arthur Preston died before Faye Vandaveer Preston died, you will please state your reasons or grounds for so finding. A. Health, age, sex, and accustomed to gas.” Judgment was accordingly entered, decreeing that' plaintiff Margaret Helen Tovey took an undivided one-half of Leon Arthur Preston’s property by virtue of his will, and that as Faye Vandaveer Preston, his wife, survived him she took the other undivided one-half as his statutory heir; and that upon her death the same passed with all the rest of her individual property to her heirs, defendants herein. Plaintiff appeals, not contending against the trial court’s finding and judgment- that she had failed to establish her own cause of action, but contending that there was not sufficient competent evidence to establish defendants’ cross action — -that Mrs. Preston had survived her husband. Following the argument of appellant’s counsel, it is first contended that the jury’s finding that the husband died before his wife was “almost wholly the result of guesswork, surmise and mere conjecture.” To a correct determination of this and other matters urged on our attention certain undisputed or well-established facts are required to be stated. Mr. and Mrs. Preston lived in a five-room, one-story house. It had no basement, but was heated by gas piped to two floor furnaces under the house. There was a vent pipe connected with the furnaces intended to carry off noxious gases. Three rooms, a kitchen, dining room, and parlor, were in line from north to south, and on the west were two bedrooms with a bathroom between them. In the dining room, which also served as a sitting room, and which was situated between the kitchen on the north and the parlor on the south, stood a sofa or davenport against its west wall. There was virtually no partition between the middle room and the parlor. In the floor near the west sides of these two rooms, and about the division line between them, was a floor register, with a burner below, which heated both rooms. In the parlor to the south of this floor register was an overstuffed chair. The south end of the davenport standing against the west wall of the dining room was at some slightly greater distance from the floor register than the overstuffed chair in the parlor. Doors connected the two bedrooms with the dining room and parlor. There was an outside door on the north in the kitchen and ah outside door on the south side of the parlor. There were windows on the east sides of the dining room and the parlor. On December 6, 1936, the weather was very cold, and a strong wind was blowing from the north. Mr. and Mrs. Preston had planned to go to Neodesha to visit Mrs. Preston’s sister in the evening of that day. They did not come, and telephone calls failed to reach them that evening or the next morning. This prompted Mrs. Preston’s sister in Neodesha to call the city officials of Osawatomie. The chief of police, accompanied by a Mr. Samuels, went to the Preston home. All the doors were locked. They broke a glass panel in the enclosed porch on the north, unbolted a door and entered. The whole house was suffocatingly hot. Fires were burning in all four of the burners of the kitchen range, both floor register burners were lighted and so, too, was a burner in the bathroom. Passing from the kitchen to the dining room, the chief of police and Mr. Samuels saw Mrs. Preston sitting almost erect on the davenport at its south end near the floor register between the two rooms. She was dead, but her body was still slightly warm. Next they noticed Mr. Preston lying on the floor on his left side. His face was about four or five inches from the south edge of the floor register, and the top of his head about twelve inches east of its west edge. He, too, was dead, and his body felt cooler than that of Mrs. Preston. On further investigation the chief of police and the county coroner found that there were no regulators for the floor furnaces, but there was a vent pipe which extended under the floor and passed through the east foundation wall and which was designed to furnish an outlet for any noxious fumes generated by the gas burners. It was discovered that this vent pipe was choked and frozen with ice and snow — a fact which quite clearly revealed the cause of the fatal tragedy which befell the occupants of the house. The county coroner, who was also a physician and who had much experience in cases of carbon monoxide poisoning, testified that he reached the Preston home in the forenoon of December 7,1936; that on investigation he concluded that an inquest was not necessary; that the cause of the deaths of Mr. and Mrs. Preston was asphyxiation from carbon monoxide gas; and that “they had been dead approximately eighteen hours or maybe a little longer.” A fact of some probative value was that a very hard wind was blowing from the north on December 6 and 7,1936. Whatever draft penetrated the house would tend to deflect the noxious gases and fumes in the house toward the south, past where Mrs. Preston sat, and towards her husband who was south of the floor register from which some of the poisonous fumes must have issued. There was circumstantial evidence which tended to show that her husband had been sitting in the overstuffed chair near to the floor register, but south of it. Apparently he had vomited before he slipped or fell from this chair, because there was vomit on the chair and on the sleeve of his shirt. An expert witness, whose qualifications were well established, was asked to assume as true the locus in quo, the positions and relative proximity of the husband and wife to the floor register, the stiff north wind, the doors, windows and other pertinent matters shown in evidence, and then questioned: [Question]: With that situation, if gas was coming out of this furnace grate, would there be any deflection of the gas in that room from one direction to another? A. There would be some deflection, in the direction the wind is blowing. “Q. From the direction the wind is blowing to the opposite direction? A. Yes, sir. “Q. What would you say as to whether or not the presence of that draft would affect the probable concentration of the monoxide gas in that room in relation to the two subjects that were there breathing it. A. The one on the side . . . from which the drafts were coming from, would have the advantage. “Q. The one on the north would have the advantage? A. If the drafts were coming from the north, the one sitting on the north would have the advantage.” One feature of the evidence which tended to show whether the husband or wife died first was the comparative condition of their health. Mr. Preston was 47 years of age and had followed the occupation of a railway freight train conductor and brakeman, but had been retired from active service on account of ill-health. Eor several years he had been forced to go back and forth to the railway hospital at St. Louis for occasional treatment and examination. He took medicine three times a day and breathed heavily whenever he walked or took any exercise." He had suffered one paralytic stroke on the right side of his body, one of his feet dragged, and he required a lot of rest. His entire physical, nervous and circulatory system had been weakened by syphilis, of which disease he was in the tertiary stage. His red-blood count was below normal, hemoglobin 82 percent. Medical and scientific experts testified that a man in such condition would lack normal resistance to monoxide poisoning. One pathologist of many years’ experience testified: “A man may have syphilis and have a damaged heart and when under those circumstances he contacted carbon monoxide, that his blood will pick up carbon monoxide just as quickly as anybody else’s. But what I am trying to say to the court is this, that when it comes to the response of weakened organs, under those circumstances, that you can certainly expect a man with weakened organs to succumb quicker than a perfectly normal individual. And, furthermore, I would like to emphasize again my answer, that a person who has had syphilis for a number of years is not a normal individual.” Another expert, who had long conducted his own laboratory and was frequently employed to do clinical and other scientific work for physicians, testified: “Carbon monoxide would be 96 hundreths — just a fraction lighter than air. . . . “Carbon monoxide combines with the hemoglobin of the blood. The greater the concentration, the more rapidly the formation of carbon monoxide hemoglobin.” “CO is the symbol for carbon monoxide. One part CO to ten thousand parts of air put 16.7 parts hemoglobin out of use. Two parts CO to 10,000 parts of air puts 28.5 hemoglobin out of use, and it increases until they gei down to ten parts CO to 10,000 parts of air puts 67 percent of hemoglobin out of use. It increases the concentration. The result of the increased concentration is an increased percentage of the hemoglobin made functionless or, in other words, put out of use. That is, most of the authorities agree that 70 percent saturation of the hemoglobin of the blood would produce death.” Contrasting Mrs. Preston’s condition of health with that of her husband, she was 43 years of age and weighed between 150 and 160 pounds. The evidence tended to show that she was a robust, healthy woman, never known to be sick, active and quick in her movements, did her own housework and ready to help with the work when she visited with her mother, ready to go “anywhere on a picnic or swim, she was a great hand to swim.” There was some testimony that however well-regulated gas burners for domestic use may be there is some escape of carbon monoxide gas, but that a housewife and cook develops a certain resistance to its evil effects. One doctor testified: “That he had had experience in the treatment and observation of persons subjected to poisonous gases; that the history of the former physical condition and health of Mr. and Mrs. Preston would in his opinion render Mr. Preston the less resistant to the effects of monoxide gas poisoning; that exposure to atmosphere containing monoxide gas has a tendency to immunize the person so exposed from its effects, and that Mrs. Preston, being the wife in the home where the cooking was done upon a gas range, was subject to that degree of immunization. “It is generally conceded by medical authorities that a slight exposure to carbon monoxide over any period of time — a reasonable period of time— allows that individual to build up an immunity to carbon monoxide gas poisoning.” There was also some testimony that a woman’s chest capacity, being less than a man’s, (which was the fact in this case), she would breathe into her lungs a less quantity of monoxide gas at each respiration and its deadly effect would thereby be delayed. To a hypothetical question formulated to include the questioner’s summary of the evidential facts and circumstances, one expert, Dr. B. L. Phillips, testified: “I think he [Mr. Preston] would die quicker under the exposure to the carbon monoxide poisoning — other conditions being fairly equal. “Q. Would you say whether or not a man in that condition — in the condition I have assumed — would be more or would be less susceptible to monoxide poisoning than an ordinarily healthy, robust individual? A. He would be more susceptible. “A. Under those conditions, as you have outlined there, I would expect the woman to survive.” Another expert, Dr. William K. Trimble, answered a similar hypothetical question: “I would like to give it as an opinion that in consideration after considering the location of the grates, from which I assume this gas came, that the position of the man would very probably give him a greater concentration of the carbon monoxide than would be obtained by the second party, who was seated a further distance from the grate and also in a position where there was a greater amount of the ventilation due to open doors. “Q. Then, do I understand it would be your opinion that the woman, or the second party as you call it, survived the man who was lying on the floor? “[Counsel for plaintiff]: I object to that as calling for opinion and conclusion evidence and evading [invading] the province of the jury. “The Court: Overruled. “A. I would think that under the circumstances she would be entitled to survive longer than the man.” Foundation was properly laid for the introduction of excerpts from a Public Health Bulletin issued by the United States government on “Review of Carbon Monoxide Poisoning.” It read: “Men who had any inherent weakness of the nervous system were also more susceptible to CO [carbon monoxide].” From a treatise of another recognized authority, Doctor Sayers, the following excerpt was introduced: “Anything that lowers the physical fitness of a man, such as illness, overwork or excesses of any kind, exaggerates the effects [of carbon monoxide].” From a medical textbook by Professor Ralph W. Webster, of Rush Medical College, the following was read to the jury: “In cases of death from breathing asphyxiating gases, it is generally considered that the female consumes less oxygen than the man and therefore the presumption of survivorship is in favor of the female.” It would serve no useful purpose to glean more minutely from the record other incidents of fact or opinion of some probative force. What we have summarized above did, in our opinion, constitute sufficient evidence to take the case to the jury. Turning next to other objections to the judgment, appellant argues that defendants’ expert witnesses testified “wholly and entirely from a hypothetical standpoint.” Quite true, but it is not contended that the hypothetical questions on which their professional opinions were elicited were not formulated on the undisputed facts and circumstances, together with the other evidence for the truth of which the questioner vouched. Hypothetical questions so formulated are competent and the answers given thereto by scientific and medical experts, if given credence, have some probative value. (Bell v. Newkirk, 136 Kan. 111, 12 P. 2d 733.) Appellant cites 17 C. J. 1181 to the effect that opinion evidence is not admissible upon the question of survivorship among persons who perish in the same calamity. But the same authority also has this to say: “Where there is no direct evidence as to which of two persons survived a common disaster, circumstantial evidence, including such general considerations as age, health, nature of injuries, etc., may be considered, especially where expert opinion has been given that consideration of these matters is material in determining the survivorship. Inference from such circumstantial evidence is not the same thing as a presumption in the absence of all evidence. But where there is any evidence as to the survivorship between two persons who perished in a common disaster, it must govern in the decision of the fact.” (17 C. J. 1180.) Moreover, we have some precedents of our own to guide us on this subject. In Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P. 2d 22, which followed the violent deaths of Mr. and Mrs. Dan Hammat who had been shot to death in their bedroom, the litigation was to determine which died first. We held that this controverted issue could be determined by a jury upon sufficient circumstantial evidence. No reason can be suggested why the opinions of competent experts should be excluded in such a case when it is the best that can be had, and where direct and positive evidence does not exist. (Monroe v. Lattin, 25 Kan. 351, syl. ¶2; Root v. Packing Co., 88 Kan. 413, 129 Pac. 147, syl. ¶ 1.) In Telephone Co. v. Vandevort, 67 Kan. 269, 270, 72 Pac. 771, it was said: “The general rule is that opinion evidence may be received where it is the best that can be had, or where the situation, facts and events cannot be adequately reproduced or described to the jury . . .” While the ordinary rule of evidence is that witnesses should not be permitted to testify to the ultimate facts which it is the province of the jury itself to decide, that rule is not strictly applied when the opinions of experts are offered to aid the jury in reaching its de cisión. (Sillix v. Armour & Co., 99 Kan. 103, 109, 160 Pac. 1021; Malone v. New York Life Ins. Co., 148 Kan. 555, 557, 83 P. 2d 639.) A case much like the one we are considering was Estate of Butt, 181 Wis. 141, 193 N. W. 988, where a husband and wife and their two children and the wife’s brother slept in a room with windows and door tightly shut and with no provision for ventilation. They were all found dead. The cause was monoxide gas generated in the hard-coal furnace in the basement of their house which came through the hot-air register or through cracks in the door. The lawsuit which followed was to determine whether the husband and father survived his family or that they or one of them survived him. In the nature of the case, the evidence consisted of the circumstances, the size of the room, the location of the entry of the poisonous gas, the location of the bed, the position of the bodies, the age of the decedents, together with their physical conditions. The trial court rejected the testimony of experts offered to show the effects of monoxide gas on different persons, and the probable currents of air following the heat that came from the floor register. The supreme court held that such evidence was proper, and that in the nature of the case none but experts could know the effect of monoxide gas on the human system, or how it would affect different persons under different circumstances. The syllabus, in part, reads: “Evidence of those persons who by reason of special study and experience possess knowledge and judgment not possessed by mankind in general cannot be ignored. “Where several persons were asphyxiated in a small room heated with a hot-air register connected with a hard-coal furnace, the effects of monoxide gas on different persons when inhaled, its relative weight and its diffusion with the air, and the probable currents of air following the heat that came from the hot-air register, were properly matters of expert testimony. “A husband, his wife, and their children were asphyxiated by monoxide gas, and the evidence of experts was substantially to the effect that the wife survived her husband. Held, the evidence being substantially all one way, it was the duty of the trial court to find accordingly.” (Syl. Iff 2, 4, 5.) See, also, New York Life Ins. Co. v. Doerksen, 64 F. 2d 240, and wealth of cases cited in 13 Fourth Dec. Dig. 1309-1312. In 3 Chamberlayne’s Modern Law of Evidence it is said: “An expert may be said to be a skilled witness who testifies upon the basis of assumed facts stated in a hypothetical question. . . . In a sense, the field of the expert is a narrow one. It relates primarily to pure intellect, mere reasoning. In another sense, it is extremely broad, embracing all forms of human knowledge or experience which can fairly be presumed by a presiding judge to be beyond, or at least outside of, the thinking of ordinary men.” (§ 2374.) In the same treatise it is said: “In case of the expert, however, the inadequacy which the witness is to supply is in the reasoning powers of the jury. No man can satisfactorily reason about that which he does not understand. In a matter of art, science or trade, subjects beyond the common knowledge of the jury, the necessary data for sound reasoning and the faculties for producing it may both be unknown or undeveloped. Should this inadequacy be made clearly apparent, the judgment of the expert will be received. “Protecting the province of the jury. — Upon ordinary principles, the court, in seeking to protect the function of the jury, will exclude the judgment of an expert which involves only acts of plain and simple reasoning which the jurors could properly draw for themselves. . . . “On the other hand, should the adequate necessity for receiving the evidence be shown, the judgment of the expert may be admitted upon the precise point as to which the jury are to pass.” (§ 2377.) In 2 Jones on Evidence, 4th ed., section 367, it is said that the tendency of judicial opinion “is toward the extension of the field of admissibility of expert testimony which is based upon established or generally recognized scientific principles or discoveries.” And in the same volume, section 392, it is said: “Furthermore, there is a class of cases holding that in some circumstances expert testimony is of great value; . . . much weight may attach to the testimony where skilled and experienced experts give their opinions based wholly or in part upon facts which have come under their own observation, or where they state precise facts of science, as ascertained and settled, or the necessary and invariable conclusion which results from the facts stated; and it not infrequently happens that such opinions are indispensable in furnishing some guide for the determination of questions unfamiliar to ordinary witnesses. In some instances the statements of experts have been accorded a weight overcoming direct testimony to the contrary.” See, also, same text, section 373; and 4 Wigmore on Evidence, 2d ed., 115-117. Applying these modern and progressive views of the law of evidence to the questions asked of Doctor Trimble, and the doctor’s answer thereto, it will be seen that prejudicial error cannot be predicated thereon. Moreover, Doctor Trimble and other experts had given other testimony against which no technical objection was or could be raised, consequently the particular question objected to only elicited cumulative testimony. In 5 Encyclopedia of Evidence, 649, it is said: “Error in the admission of expert testimony may not be ground for reversal where such testimony is merely cumulative, and there is an abundance of other evidence which is competent and which sustains the opinion of the witness. The other matters urged against the judgment have all been carefully considered, but none of them appears to be of sufficient gravity to warrant discussion. Appellant calls our attention to the fact that after the jury had deliberated on their verdict for some time they sent a request to the court, “Give- us a full meaning of simultaneously.” In response, the court sent to the jury the following as an amendment to its instructions: “Members of the Jury: The word ‘simultaneous’ (as used in paragraph 10 of the instructions, and the word ‘simultaneously’ (as used in form C of the verdicts) have the same meaning, and they both mean: ‘Happening at the same time.’ (Signed) G. A. Roberds. Judge.” Appellant says that the court’s definition “was perhaps correct,” but that the instruction in which it was included was itself erroneous. As the instructions are not submitted for our perusal we cannot rule on that point. It is also asserted in appellant’s brief that the jury’s request for a definition and the court’s response thereto occurred in the absence of plaintiff and her attorney. Counsel for appellees do not admit this to be the fact. They say, “The record is silent as to whether plaintiff’s counsel was present or absent, and being silent, it will be presumed that he was present. (Joseph v. National Bank, 17 Kan. 256.)” Mayhap this is a sufficient answer. Another would be that the matter was not squarely raised in the motion for a new trial, so it is not reviewable now. Furthermore, the incident itself being so trivial and no prejudice being shown, no material error could be made out of it. (See State v. Jones, 137 Kan. 273, 20 P. 2d 514, syl. ¶ 3.) Finally the complaint is made that— “After the jury had been kept out five full days and one night, they were brought into the jury room and the court proceeded to deliver a highly prejudicial lecture and reprimand to the jury for not having arrived at a verdict.” This is contradicted by counsel for appellees. The only record on the subject is a statement of the occurrence by the trial judge, which would scarcely justify any criticism. Moreover, the judge’s remarks occurred in the presence of counsel for both parties. Neither objected to them. And we can only repeat what we have so often said, that it serves no purpose to complain to this court of an incident which occurred in the trial court which counsel regarded as so incon sequential that they interposed no objection. (American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 Pac. 215; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 54, 53 P. 2d 923; State v. Pyle, 143 Kan. 772, 781-782, 57 P. 2d 93.) The judgment is affirmed.

The opinion of the court was delivered by Smith, J.: This is an action to cancel certain instruments conveying mineral rights and to quiet the title of plaintiff in these mineral rights. Judgment was for defendants. Plaintiff appeals. The facts are as follows: 1. March 6,1916, C. A. Johnson was the record title owner of the real estate involved in this action. 2. On July 2, 1917, C. A. and M. M. Johnson, his wife, deeded the real estate in question to Harry C. Jobes, reserving to themselves all the oil, gas and other minerals in the land. This conveyance was recorded in a few days. 3. July 15, 1926, plaintiff acquired these lands from Jobes by a warranty deed which recited the reservation in C. A. and M. M. Johnson. 4. December 12, 1925, C. A. and M. M. Johnson deeded a one-half interest in the minerals to defendant, Mrs. E. C. Johnson. This instrument was filed for record August 11, 1928, more than ninety days after its execution. 5. C. A. Johnson died intestate June 15, 1928, leaving all his property to his widow, M. M. Johnson. 6. October 11, 1937, M. M. Johnson conveyed by a royalty deed of conveyance all her interest in the minerals in the land in question to the defendant, C. E. Johnson. This deed was placed of record on the 16th day of July, 1938. This action was filed July 12, 1938. It is the contention of plaintiff as to the half interest in the minerals conveyed to Mrs. C. E. Johnson that it was a condition precedent to the vesting of title in her that she record her conveyance within ninety days of its execution and list it for taxation on or before the first of March, 1926, and that when she failed to do so her conveyance was void under the terms of G. S. 1935, 79-420. That section is as follows: “That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to' the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves: Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.” It should be noted in this connection that the separation of the mineral interest in this land from the surface interest took place on July 2, 1917, when C. A. and M. M. Johnson conveyed the land in question to Jobes, reserving the mineral rights to themselves. The plaintiff never did acquire any interest in the mineral rights, since the instrument by which the surface was conveyed recited the reservation of the mineral interest to C. A. and M. M. Johnson. This court has held heretofore that the purpose of G. S. 79-420 was to place these severed mineral properties on the tax roll. (See Hushaw v. Kansas Farmers’ Union Royalty Co., 149 Kan. 64, 86 P. 2d 559.) It provides that where fee to the surface of the land is in one person and the title to the minerals therein in another each shall be listed and taxed separately. It is made the duty of the register of deeds to furnish the county clerks, who shall furnish to the assessors, a certified description of such reserves. Then to make sure that the register of deeds would be able to furnish such a description a proviso was added to the section. That proviso is as follows: “Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.” It will be noted that two conditions must exist before the leases or reserves shall become void, namely, failure to record within ninety days after execution, and failure to list for taxation. Unless both of these conditions are present the leases or reserves are not void. What are the facts in our case? C. A. Johnson and M. M. Johnson conveyed the surface of the land to Jobes on July 2, 1917. In this deed they reserved all the mineral rights to themselves. This conveyance was recorded within ninety days. When the surface was conveyed and title to the mineral rights reserved to the grantor, the situation contemplated by the statute arose, that is, title to the surface was in one person and to the mineral rights in another. Such a conveyance is one of those contemplated by the statute. In Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750, this court was considering the question of whether a particular lease was of such a nature as to constitute a severance of the mineral rights from the surface. This court cited and approved the syllabus from In re Major, 134 Ill. 19, 24 N. E. 973. It reads as follows: “ ‘Where there is a grant of mineral land, with a reservation of the mining right to the grantor, this will amount to a separation of the rights of property as between the land and mines or mining rights, and each must be listed separately for taxation. “ ‘Where the ownership of coal is severed from the ownership of the soil, the fee in the coal is property, and, as such, is liable to its just share of taxation.”’ (p. 340.) In Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. 1002, this court held that a certain instrument severed the minerals from the land. In the opinion we said: “Then there is the reservation of oil and gas for domestic purposes, by which the grantor proceeds on the theory that he is taking back something out of that which was granted and which would have passed to the grantee but for the reservation. The name by which the writing is designated is not a matter of great consequence, as what is called a lease may as effectually transfer the minerals underneath a tract of land as a more formal instrument of conveyance. A severance, such as the statute in question contemplates, may be made by an exception or reservation in a deed, or by an express grant in any other instrument.” (p. 141.) Following these authorities, we hold that the conveyance of the fee in this case with the reservation of the mineral rights to the grantors severed the title to the surface from the title to the mineral rights, as contemplated by G. S. 1935, 79-420. As has been stated heretofore, this conveyance was recorded within ninety days of its execution. Therefore, the register of deeds had all the information he needed to furnish the county clerk with a certified description of the reserves in this case so that he could furnish it to the proper assessor. If G. S. 1935, 79-420, was not complied with so that both the surface and the mineral rights were taxed after July 2, 1917, it was the fault of these officers, not the fault of C. A. and M. M. Johnson. In Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56, the instrument in question had not been recorded within ninety days but had been recorded within time for it to be taxed for the current year if the officers had done their duty. This court held that not only the failure to record within ninety days was necessary to void the lease but that there must be a failure to list for taxation and that the recording before March 1 was a listing under the statute. This court said: “Did the recording before March 1, 1935, constitute the necessary listing of property taxed as real estate? We think it did. The conveyance effected a severance of the oil and gas in place. The estate conveyed to the oil and gas in place is taxed as real estate. In Robinson v. Jones, 119 Kan. 609, 240 Pac. 957, it was said: “ ‘When mineral in place is severed by deed, it is taxed as real estate to the owner, and the remainder of the land is taxed to its owner (R. S. 79-420).’ (p. 613.) “See, also, Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750, and Luman v. Davis, 108 Kan. 801, 802, 196 Pac. 1078. The grantor of the conveyance owned the land, together with all mineral rights thereunder on March 1, 1934. That was the taxing year for real estate. (R. S. 1933 Supp. 79-402.) The entire tax would properly have been assessed against the property of the grantor. This conveyance was executed June 26, 1934. One month before March 1, 1935, the instrument was recorded. We know of no law requiring additional listing of property taxed as real estate.” (p. 93.) In Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, in considering an action brought under this section, this court said: “In Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56, the instrument in question was held to be a conveyance which effected a severance of the oil and gas in place, and hence should be recorded and listed for taxation as required by statute. The instrument was not recorded within ninety days, but was recorded before the first of March after its execution. This recording was held to constitute the necessary listing for taxation, within the meaning of the statute, in view of the fact that after it was recorded it became the duty of the register of deeds to furnish to the county clerk, and he to the county assessor, by March 1, a list of such properties for the purpose of taxation. The recording was in time for that purpose. “Here the facts do not bring it within the rule of the case last cited. Had the instrument been filed for record before March 1 there would have been reason to hold the case applicable, but here it was not filed until May 3, which was more than two months after the time it should have been certified to the county assessor for taxation.” (p. 95.) It will be noted that the recording is generally regarded as a listing for taxation. In view of these authorities we hold, therefore, that G. S. 1935, 79-420, was complied with when the conveyance of July 2, 1917, was recorded. The fact that there were subsequent conveyances of the royalty interest is of no importance, since the first severance of the mineral right from the title to the surface was made by the conveyance of July 2, 1917, and the two interests became taxable from that time on. The recording of the subsequent conveyances could have given the taxing officials no notice they did not have from the conveyance of July 2, 1917. What has been said here is true also of the interest of Mrs. E. C. Johnson. The judgment of the district court is affirmed. Harvey, J., concurs in the result.

The opinion of the court was delivered by Hoch, J.: This was an action to recover under the provisions of the Kansas securities act (blue-sky law), which makes voidable at the option of the purchaser the sale of securities made in violation of the act. The appeal is from an order sustaining a motion for a directed verdict in favor of one of the defendants. The question presented is whether there was substantial evidence sufficient to require submission of the case to the jury. The statute involved is section 17-1240, G. S. 1935. That section reads in part as follows: “Every sale or contract for sale made in violation of any of the provisions of this act shall be voidable at the election of the purchaser; and the person making such sale or contract for sale and every director, officer or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser in an action at law in any court of competent jurisdiction upon tender to the seller in person or in open court of the securities sold or of the contract made for the full amount paid by such purchaser, together with all taxable court costs and reasonable attorney’s fee in any action or tender under this section.” Sale of the stock without first obtaining registration is the violation here alleged. The plaintiffs, T. J. Mosley, Ida P. Mosley and Lola J. Wells, are brother and sisters. The defendants were F. H. Unruh, I. W. Siegel, the wives of Unruh and Siegel, Christian H. Goering and the Cusco Oil and Refining Company. The case against Unruh and Siegel was submitted to the jury, a verdict rendered, and no appeal taken. Goering alone, of the defendants, is brought here by the appeal. Unruh and Siegel had purchased from a trustee in bankruptcy an oil refinery located at Chase, Kan., for approximately $8,000. Of that amount they borrowed about $7,000 from the Citizens State Bank at Moundridge, of which C. H. Goering, the appellee, was president. For the purpose of operating the refinery the Cusco Oil and Refining Company was organized, with Siegel and Unruh and their wives as the principal stockholders. Goering was one of the incorporators and received one share of stock, without consideration. The corporation took over the refinery, and a bill of sale and chattel mortgage to all the assets of the corporation were given to the bank as security for the loan. It was alleged that Unruh and Siegel planned and conspired to sell stock in the company in violation of the blue-sky law, and that Goering aided and assisted them as their agent in carrying out such unlawful scheme and conspiracy. It was further alleged that Goering permitted himself to be made a dummy director of the corporation in pursuance of the unlawful scheme, and as such director acted in subservience to Siegel and Unruh “with the exception of the instances as hereinafter set forth, in which he had a personal interest, either individually or for and on behalf of the Citizens State Bank, of Moundridge, Kan., of which he was at all times hereinafter mentioned an officer and director, in which instances the said defendant, Christian H. Goering, acted for his own personal and individual benefit and interest and for the benefit and interest of the said The Citizens State Bank of Moundridge, Kansas.” The plaintiffs, the Mosleys, had been the owners of a large farm in Dickinson county which they had traded for stock in the company. Subsequently, for reasons not here material, they brought this action to set aside the sale and recover under section 17-1240. The question being here upon defendants’ motion for a directed verdict, the evidence must be considered in the light most favorable to the plaintiffs. Every reasonable inference which can be drawn from the evidence favorable to the plaintiffs must be indulged against the defendants. The same rule applies as in the case of demurrer. (First Nat’l Bank v. Strawn, 145 Kan. 934, 67 P. 2d 589.) Mosley testified that he became acquainted with Unruh in October, 1935, and that a Mr. Klugman was with Unruh the first time he saw him, and about that time they talked about making a trade of their land for an interest in an oil refinery; a day or two later they were taken out to Chase to see the refinery. When they returned from Chase they decided they did not want to make the trade, but a day or two later Klugman and Unruh’s son came to their place and wanted to open up the deal again and asked to take them to Wichita to talk the matter over; that on the way to Wichita they were taken to Moundridge, and the car stopped in front of the bank there; that he had not known for sure that there was a bank at Moundridge; that when the car drove up in front of the bank they were told they could go in and would be introduced to the banker and could find out something from him about Unruh’s reputation; that he and his sister went in and were introduced to Goering and went back to a private room, where a conversation took place; that they told Goer ing they were about to make a deal to trade their land for an interest in the refinery and asked him what he thought about the deal and about the integrity of Unruh; that Goering said he did not know very much about Unruh since he (Unruh) went to Wichita, but that when he lived around Moundridge, which was his home, he was always a straight, nice boy, or something of the kind; that Goering said that if the refinery was run right it would make money and he wished he owned it, and suggested that if the Mosleys made a deal they should make it as they would a horse trade or anything of that sort and get all they could for their land. Mosley testified that he did not believe anything was said about the stock of the corporation. Ida P. Mosley gave substantially the same testimony. Following the interview with Goering the parties went on to Wichita, where the deal was consummated. The Mosleys signed a deed to their farm, the name of the grantee being left in blank, and Unruh took the deed to Moundridge and told Goering that he would like to insert Goering’s name as grantee, that he did not want to put it in his own name because of possible litigation. Goering said that he did not want it in his name as he might have some trouble with his income tax. Unruh then suggested that it be put in the name of D. J. Goering, a relative of the appellee and cashier of the bank, and Goering said that was for Unruh and “Dave” to say, as it did not make any difference to him. Unruh then said that they would put it in D. J. Goering’s name and if he did not like it he could deed it back afterwards. Thereupon D. J. Goering’s name was inserted as grantee without his knowledge, and Goering, the appellee, acknowledged the deed and affixed his notarial seal. Goering testified that he did not know whether he or Unruh wrote in D. J. Goering’s name. Subsequently D. J. Goering, upon hearing of the transaction, made objection, and Goering prepared a deed from D. J. Goering to Mrs. Unruh which D. J. Goering signed and acknowledged. Subsequently, the farm was sold and about $6,500 deposited in the Goering bank from the proceeds. Of this amount, $3,850 was used to pay a note owed by Unruh and Siegel to the bank and about $1,830 credited on a note of the Cusco Oil and Refining Company to the bank. Goering testified that at the time the Mosley deed was made he was not a director of the company, but he subsequently became a director. After the company was organized and took over all the properties the two Goerings advanced considerable of their own money as working capital — for the purchase of crude oil and other wise operating the refinery, and received a contract under which they were to receive two and one-half cents per barrel on oil purchased by the refinery, as a bonus in addition to interest on the loan. In the interview with the Mosleys at the bank nothing was said about the loans that had been made by the bank to Unruh and Siegel or about the organization of the Cusco Oil and Refining Company or about the personal loans of the Goerings or the bonus contract, nor does it appear from the record that the Mosleys at any time prior to completing the trade had any knowledge that Goering was in any way financially interested in the refinery or in the-transaction of Unruh and Siegel. Other testimony relating to attendant facts and circumstances need not be reviewed. Did Unruh and Siegel enter into a scheme and conspiracy to sell unregistered stock, and did Goering aid and assist them in carrying out their unlawful purpose? On the first issue, as to Unruh and Siegel, the question went to the jury, conviction was had and no appeal was taken. One of the contentions of appellee is that since it was not charged or shown that Goering in any way negotiated or took part directly in the sale of the stock, recovery could not be had against him under section 14-1240 unless there was evidence to show that he had participated or aided in making the sale as a “director, officer or agent” of the seller; that he was not a director or officer and that there was no evidence which could be held to establish agency. If, however, there was evidence that the conspiracy had been entered into and that he aided and assisted in consummating it, it makes little difference whether he be considered an agent of Unruh and Siegel. He would become, under the law, a coconspirator and principal, and under the well-established doctrine that an act of one of the conspirators is an act of all he would become in effect a seller within the meaning of the statute. To give the statute a narrower interpretation would open an easy path to its nullification. Appellees contend that the facts and circumstances shown, as they relate to Goering, are just as consistent with a lawful purpose as with an unlawful one, and that therefore the motion for a directed verdict was properly sustained. While the language used by some authorities and in some cases from other states would seem to suggest that those seeking to prove conspiracy by circumstantial evidence have a heavier burden than that which exists in other cases, the decisions of this and many other courts do not support that view. It is true that the facts and circumstances must be clearly shown and be of such a character that a jury could reasonably conclude therefrom that a conspiracy had been entered into. But if the chain of circumstances is such that ordinary men of sound mind might reasonably believe from it that a conspiracy existed, the issue is a question of fact for the jury. (15 C. J. S. 1043, 1044, 1047; 11 Am. Jur. 585; Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999; Rickel v. Cooperative Exchange, 113 Kan. 592, 215 Pac. 1015; Chisler v. Randall, 124 Kan. 278, 259 Pac. 687; Hutson v. Imperial Royalties Co., 134 Kan. 378, 5 P. 2d 825; Eustler v. Hughes, 267 Ky. 200, 101 S. W. 2d 917.) Also, facts and circumstances subsequent to the act complained of may be shown for the purpose of establishing the existence of a conspiracy prior thereto. (15 C. J. S. 1043-1045; Hutson v. Imperial Royalties Co., supra, pp. 388, 389.) Another contention of appellee is that even though it be shown that Goering aided and participated in the sale of the stock to the Mosleys, the transaction would be exempt under a provision of the blue-sky law which exempts “isolated sales” from the operation of the act. But allegations of successive sales by Unruh and Siegel were made. Testimony in support of such allegations was offered, and if Goering did aid and assist in consummating an unlawful scheme he would not be immune simply because he was directly connected with only one transaction. Whether exemption on the ground of an “isolated sale” was claimed in defense of Unruh and Siegel the record does not disclose. Goering was present and became a stockholder at the organization of the company. He subsequently became a director. The bank of which he was president had a mortgage on the refinery and all other property of the company at the time the conversation with the Mosleys took place. He made large personal loans to Unruh and Siegel and was to receive a substantial bonus under a contract made in connection with the loans. He acknowledged the-deeds and helped prepare one of them under the circumstances and in the manner heretofore stated. While specific reference may not have been made to the corporation stock in the interview with the Mosleys, he knew that the refinery property had been taken over by the company and that if the Mosleys secured an interest in the refinery it would be done by acquisition of the company’s stock. Ours is not the function of a jury to weigh the evidence and pass judgment upon the appellee, but we cannot say after a careful review of the record and under the legal principles heretofore stated that there was not sufficient evidence to require submitting the question to the jury. The motion for a directed verdict in favor of Goering should be overruled and a new trial granted. It is so ordered.

The opinion of the court was delivered by Harvey, J.: This was an action on a promissory note by the payee against the maker. The defense was a total failure of consideration. A trial by jury was waived. The trial court heard the evidence and specifically found there was no consideration for the note, and rendered judgment for the defendant. Plaintiff has appealed. Appellant first argues that the evidence is insufficient to support the finding and judgment of the court. The note was given directly to the bank in payment of shares of the bank’s-stock. It was conceded the shares of stock never were delivered. The controversy in the testimony was whether defendant dealt with the bank or whether he dealt with U. G. Charles, its vice-president and active managing officer, in his individual capacity. On this point the evidence on defendant’s behalf was to the effect that he dealt directly with the bank; that Charles informed him that the stock being sold to him was “stock which the bank held,” and that he gave the note in suit directly to the bank in payment of the stock; that Charles explained to defendant that the stock could not be issued at once, owing to the illness and absence of the president of the bank, whose signature on the certificates of stock was necessary. On behalf of plaintiff Charles testified that in fact he owned the stock which was being sold to defendant; that while the note was made to the bank, he took credit for it in his personal account, and that he endorsed on the note a guarantee of its final payment. Defendant knew nothing of the way that transaction was handled, or of the endorsement made on the note by Charles. We think the evidence on behalf of defendant was ample to sustain the findings of the court that defendant’s transaction was with the bank rather than with Charles personally. Appellant argues that since Charles held the stock and took credit for the note, and guaranteed its payment, the note really was given for the accommodation of Charles, and argues that when a- note is given for the accommodation of one person the makers are liable to the holder of the note, citing G. S. 1935, 52-306, and cases construing this section. This appears to be an afterthought. The issue was not raised by the pleadings, and there is nothing in the record to indicate that the point was urged to or passed upon by the trial court. The most there is in the record is a little of the testimony of Charles which would indicate that he so regarded the transaction. But even his testimony does not disclose that this theory was stated or explained to the defendant. The defendant knew nothing of Charles’ secret notion about the matter. It is clear from testimony on his behalf that he was dealing with the bank, purchasing its stock from the bank. More than that, the court was not required to give credence to the self-serving testimony of Charles to the contrary. We find no error in the record. The judgment of the court below is affirmed.

The opinion of the court was delivered by Hoch, J.: This was an action for judgment on a promissory note for $725 and for foreclosure of a mortgage on real estate given as security for the note. In his answer the defendant alleged absence of consideration for the note and mortgage and false representations in securing his signature thereto, but in the trial relied upon a defense of partial failure of consideration. The matter was tried before a jury, which found for the plaintiff in the sum of $233.04, for which amount judgment was entered together with foreclosure to the extent of the judgment. Plaintiff appeals. The principal question here presented is whether the validity of the note and mortgage which the defendant sought to put in issue was res judicata by virtue of a judgment theretofore rendered involving the same instruments. The promissory note was dated May 25, 1933, and the signer, Clyde P. W. Johnson, the appellee, promised to pay to L. R. Gray, the appellant, the sum of $725 ten years after date, with interest at seven percent per annum, payable annually. The mortgage securing the note covered certain real estate in Elk county, Kansas. The petition alleged that no interest had been paid upon the note and that under the terms of the mortgage the note became due and the mortgage subject to foreclosure upon default of either principal or interest. A motion of the defendant to strike out’ certain portions of the petition was made and overruled, but is not material to the immediate issues here. The answer alleged that there had been no consideration for the note and mortgage and that they had been executed as a result of false and fraudulent representations made by the plaintiff, and that defendant was ready, able and willing to reimburse the plaintiff for any funds he may have provided for the defendant or any obligations he may have paid in his behalf; that plaintiff had wrongfully obtained possession of the defendant’s abstract of title to the land covered by the mortgage and certain other papers, and upon failure to deliver the same to the defendant judgment should be given against plaintiff in the sum of $50. In reply Gray alleged that the note and mortgage had been in issue in a prior action and contended that Johnson could not now attack their validity. The reply set out a petition filed by Johnson on February 5, 1934, in the district court of Elk county asking to have the note and mortgage declared void and canceled on the ground that th^ir execution was secured through false and fraudulent representations by Gray; a general denial made in that action by Gray and a journal entry of judgment for the defendant Gray. We do not have an abstract of the testimony taken in the first action, but the record before us discloses that Johnson’s petition sought cancellation of the note and mortgage on the grounds that Gray had secured his signature thereto through false and fraudulent representations. The nature and extent of the alleged misrepresentations were set out in some detail, but their recital here would add nothing toward the determination of the present issue. In the petition for cancellation was contained this paragraph: “That plaintiff does not know the amounts of his debts and obligations that defendant may have paid, if any, but that if defendant has paid any of the same by virtue of having this purported note and mortgage, plaintiff now offers to reimburse defendant for the same.” Gray’s answer was a general denial. The matter was heard by the court, and after having had the matter under advisement for some days the court made the following finding: “That there was no fraud committed by the defendant in the matter of securing the note and mortgage from the plaintiff, mentioned and described in plaintiff’s petition. The court concludes as a matter of law that said note and mortgage cannot be set aside for fraud, that being the only question involved and the only one considered in the case. The court finds for the defendant, and that judgment should be entered accordingly.” Upon the above record of the proceedings and findings in the prior action, Gray, the plaintiff in the present action, asked the trial court and asks this court to hold that the matter was res judicata. The court instructed the jury that in the preceding action Johnson, the maker of the note, had sought cancellation of the note and mortgage solely on the ground that they had been obtained through false and fraudulent representations and that the judgment entered in that action would not interfere with the right of the defendant Johnson to show in the present action that he did not receive from Gray full consideration for the note and mortgage. The case at bar calls for no extended and academic discussion of the doctrine of res judicata. It is, of course, the borderline cases which give perplexity to courts which are asked to apply the doctrine. The doctrine itself is founded on sound principles of public as well as private interest. Not only should private rights be protected and enforced, but the public interest calls for the avoidance of repetitious and needless litigation. Controversies once settled should stay settled, and when it clearly appears that the same parties to current litigation have previously litigated and determined the same cause of action the sound principle of res judicata not only may be, but should be, invoked. This court is not here privileged to pass upon the question of whether there was merit in Johnson’s contention, in this case, that there was only partial consideration for the note, and that he did not in fact owe Gray the full amount of the note. The question before us is whether, under the established law, he should have raised the issue of entire or partial failure of consideration in the first action, if that defense against the note and mortgage existed. And having failed to do so, whether he can now make such defense. Let us state and analyze the controversy and the issue presented in the former action. In the former action Johnson, the mortgagor and maker of the note, sought to invalidate the instruments. He asked for their cancellation. He pleaded false representations in securing his signature and stated that he did not know the amount of the debts and ob ligations which Gray may have paid in his behalf, but was ready to reimburse him for whatever payments he had made which occasioned the note and mortgage. Gray, the mortgagee and payee of the note, answered with a general denial. The court found that no fraud had been committed by Gray in securing the note and mortgage and concluded that as a matter of law they could not be set aside for fraud, and stated, “that was the only question involved and the only one considered in the case.” There is nothing in the record which indicates that Gray agreed to any limitation of issues in the case. He simply denied Johnson's allegation of fraud, and the court found in his favor. The statement by the court that the issue of fraud was the only one being decided gave no basis for appeal by Gray. In his action to escape the obligations of the note and mortgage there was no reason why Johnson could not have asked for cancellation on the ground of fraudulent representations, or, in the alternative, for reformation of the note by reduction in its amount on account of partial failure of consideration. The essential issue involved was the validity, in whole or in part, of the note and mortgage and on that question both parties were in court and all grounds upon which Johnson relied, either for cancellation or reformation of the instrument, might have been pleaded and presented. It cannot be said that in the former action Gray might have sought affirmative relief. He could not at that time have asked for judgment on the note and foreclosure of the mortgage because neither principal nor interest were then in default. Few, if any, courts have gone further than this court in applying the doctrine of res judicata. It has been said repeatedly that a judgment entered in a prior action between the same parties who are litigants in a subsequent action and involving the same essential cause of action determines not only the matters formally stated as determined by the judgment, but all questions directly involved in the controversy which might have been raised in the prior action. The plaintiff here seeks judgment and foreclosure on the same note and mortgage which the defendant who executed them attacked in the former action. The facts and circumstances back of the note and mortgage constitute the essential controversy existing in both actions. All grounds for invalidating or reforming the note and mortgage were as well known to plaintiff in the first action as they were to him as defendant in the subsequent action and could have been pleaded and presented. It follows that the validity of the note and mortgage was res judicata by reason of the judgment entered in the prior action, and the trial court should have so held. (See Lins v. Eads, 145 Kan. 493, 66 P. 2d 390; Clark v. Layman, 144 Kan. 711, 62 P. 2d 897; Dreier v. Ramsel, 141 Kan. 502, 41 P. 2d 997; Fletcher v. Kellogg, 125 Kan. 330, 263 Pac. 1048; First Nat’l Bank v. Schruben, 125 Kan. 417, 265 Pac. 53; Rucker v. Rafter, 122 Kan. 91, 251 Pac. 420; Lux v. Columbian Fruit Canning Co., 120 Kan. 115, 242 Pac. 656; Snehoda v. National Bank, 115 Kan. 836, 224 Pac. 914; and many other decisions of this court therein cited.) The judgment is reversed with instructions to enter judgment for the plaintiff upon the pleadings, notwithstanding the verdict and the answers of the jury to special questions. Harvey and Thiele, JJ., dissenting.

The opinion of the court was delivered by Harvey, J.: This was an action to enjoin the sheriff from selling certain personal property under alias personal-property tax warrants. The trial court held the alias tax warrants void and granted the injunction. The defendants have appealed. The facts, either stipulated or not seriously controverted, may be stated as follows: The Southwestern Hardware Company, a corporation, with its place of business in Liberal, Seward county, and hereinafter called the hardware company, conducted a hardware business in Liberal for many years. It failed to pay its personal-property tax for the years 1932, 1933, 1934, 1935 and 1936. For each of those years the county treasurer issued a tax warrant for the unpaid taxes for that year and delivered it to the sheriff, who returned the tax warrant with the taxes uncollected. Also, the hardware company had failed to pay its taxes for 1937, but a tax warrant for the collection of those taxes was not issued by the treasurer until after the date of the contract soon to be mentioned.' On July 11,1938, the hardware company contracted to sell all its stock of goods, open accounts, notes, store fixtures,' furniture, equip.rnent, good will and cash on deposit in the bank to the RichardsConover Hardware Company, a corporation, and the Colladay Hardware Company, a corporation. (These parties later became the plaintiffs in this action and are the appellees here.) The hardware company then “had a stock of merchandise and fixtures of the approximate value of at least $2,500.” The contract, among other things, provided that this was a sale which would come within the bulk-sales law of this state, and to comply with the law it was necessary that the seller, by its president, execute an affidavit listing all its creditors. Such an affidavit was made by R. A. Evans, president of the hardware company, and among the creditors mentioned in the list of creditors was “Seward county.” This affidavit and list of creditors was attached to the contract. The contract contained the following paragraph: “First party covenants that the property hereinbefore set over unto second parties is free and clear of all liens and encumbrances except certain personal-property taxes, which have been assessed against the property of the corporation, and it is agreed that second parties shall pay said taxes, except a share thereof proportionate to the amount assessed upon the property set aside to Kittie C. St. Aubyn by bill of sale as hereinbefore stated.” (Italicized portion later deleted.) On the date this contract was made Mr. Evans, president of the hardware company and acting for it, stated to Mr. Garrison, who was representing the purchaser, that he did not know the amount of the personal-property taxes, but thought it was somewhere around $1,000 or $1,100. No effort was made on that date to ascertain the correct amount of such taxes. This contract as written was executed July 11, 1938, by the hardware company by its president and secretary, but Mr. Garrison, acting for the purchasers, was not authorized to sign the contract in their names and took it to his home at Wichita to submit to the purchasers. On July 15 he wrote the county treasurer to ascertain the amount of the taxes owed the county by the hardware company. This letter was not registered and does not purport to be a notice under the bulk-sales law. The treasurer’s reply is not in the record, but from it the purchasers learned that the unpaid taxes amounted, to about $2,100. As a result of this an effort was then made, at the suggestion of the purchasers, by Mr. Charles Vance, an attorney who represented the hardware company, to have the taxes compromised. Mr. Vance took this up with the board of county commissioners of Seward county, who refused to make any compromise of the taxes. On September 3,1938, the contract of the date of July 11,1938, between the hardware company and the purchasers was by agreement amended by deleting the italicized portion of the paragraph above quoted. This was done by drawing a line through the deleted words, and on that date the purchasers went into possession of the stock of merchandise and placed their representative, a Mr. Dee Collins, in charge. On July 11, when the contract was first drawn and executed on behalf of the hardware company, the store was closed for business and for invoicing the stock, and it was not opened for business until Mr. Collins was placed in charge on September 3. On September 7, 1938, the county treasurer of Seward county issued alias personal-property tax warrants, one for each of the years 1932 to 1936, inclusive. He also issued a tax warrant for the personal-property taxes for 1937 and one for the estimated amount of the personal-property tax for 1938. These seven warrants were delivered to the sheriff. On September 9, 1938, the sheriff took the warrants and went to the store, then in charge of Mr. Collins, and levied the warrants upon the stock of merchandise and fixtures. Mr. Collins, acting for the purchasers, offered to pay the sheriff the amount of the tax warrants for the years 1937 and 1938, but de dined to pay the amount of the tax warrants for the previous years. The sheriff declined to accept the tender. The petition in this action, filed September 16, 1938, recited the pertinent facts hereinbefore stated, conceded plaintiffs were liable for the taxes shown by the tax warrants for the years 1937 and 1938, and tendered into court a sum sufficient to pay those taxes; alleged that the alias tax warrants for the years 1932 and 1936, inclusive, were void, and prayed that they be put into possession of the property then held by the sheriff upon the payment of the taxes for the years 1937 and 1938. The answer admitted the sheriff had levied upon the stock of goods and fixtures and intended to sell the same under the tax warrants for the years 1932 to 1938, inclusive ; alleged that in purchasing the property plaintiffs had agreed to pay the taxes and were estopped from contesting them; alleged plaintiffs and the hardware company did not comply with the bulk-sales law, being G. S. 1935, 58-101 to 58-104, and that by reason thereof the sale was void as to Seward county; alleged that the warrants were valid in all respects, and asked that the injunction be denied. The reply was a general denial. The trial court made findings of fact that the written contract of sale between the hardware company and plaintiffs did not bind the plaintiffs to pay past-due taxes, and that there was no oral agreement between the parties to that effect, and that the plaintiffs, as the purchasers of the property, did not comply with the bulk-sales law as far as Seward county was concerned. As conclusions of law the court held that the alias warrants issued by the county treasurer, and levied upon the stock and fixtures of the hardware company for the taxes for the years 1932 to 1936, inclusive, were not issued pursuant to any statute and are therefore utterly void; that the sale of the. merchandise and fixtures was void as to Seward county and the levies thereon for the 1937 and 1938 taxes are valid, and that plaintiff should recover possession of the property then held by the sheriff upon payment of the taxes for the years 1937 and 1938, together with proper cost, interest, and charges thereon. The decree was in harmony with these conclusions of law. In this court two questions are argued: First, the validity of the alias tax warrants issued by the county treasurer for the taxes for the years 1932 to 1936, inclusive. The specific portions of our 1935 General Statutes cited as pertaining to this question may be summarized or quoted from as follows: Section 79-2101 provides for the county treasurer giving certain notices to a taxpayer of unpaid personal-property taxes, and “should such taxes remain unpaid for a period of thirty days after mailing such last-mentioned notice the county treasurer shall forthwith issue a warrant under his hand directed to the sheriff of the county, commanding him to levy the amount of such unpaid taxes and the penalty thereon, together with his fees for collecting the same, of the goods and chattels of the person to whom such taxes were assessed; thereupon said sheriff shall proceed to collect said taxes the same as upon his execution, and after collecting the said taxes pay the same to the county treasurer, and return such warrants within sixty days from the date thereof. . . .” Section 79-2103 makes it the duty of the several sheriffs in the state, in making their return of delinquent tax warrants to the treasurers of their respective counties, “to note in their return the county to which any such delinquent taxpayer may have removed or resides, with the date of his removal, if he shall be able to ascertain such fact; and it is hereby made his duty to make diligent inquiry therefor.” Section 79-2104 makes it the duty of the county treasurer, upon receiving a tax warrant “returned as provided in the preceding section, to issue an alias tax warrant, directed to the sheriff of any county in this state into which any such taxpayer may have removed or may reside, or in which, his personal property may be found, who shall proceed to collect said taxes the same as upon execution, together with his costs upon the same, and after collecting the said taxes to forward the same to the treasurer of the county who issued said warrant, together with the warrant, and his return endorsed thereon: Provided, That if said warrant be returned unsatisfied, in whole or in part, the county treasurer may- issue further alias tax warrants to the shériff of his county or to the sheriff of any county in this state in which the taxpayer has personal property.” Section 79-2105 provides that on the return “of any unsatisfied tax warrant” by the sheriff to the county treasurer of any county, it shall be the duty of the county treasurer, “if he believe such delinquent taxpayer has property which cannot be reached by said tax warrant,” to file with the clerk of the district court an abstract of the amount of taxes, penalty and costs, “accompanied by the last tax warrant,” and the clerk shall then enter the amount on his judgment docket, and the unpaid tax shall become a lien upon real estate, “in the same manner as a judgment, and a tax warrant may thereupon be issued by said clerk, which shall have the same force as an execution, and such real estate shall be sold without appraisement.” Section 79-2107 provides that the warrants returned-by the sheriff shall be endorsed with the date of service, date of collection, the amount collected, and if no property is found, so state; “and if any treasurer or sheriff fail to issue or serve and return the warrants as provided by this act, such treasurer or sheriff shall be held liable for the amount of tax upon which warrants have so failed to be issued, served or returned.” On behalf of appellees and in support of the judgment of the trial court it is argued that the only circumstance specifically provided for in the statute for the county treasurer to issue alias personal-property tax warrants is when the sheriff, in an effort to serve the tax warrant first issued by the county treasurer, learns that the taxpayer has moved to or resides in some other county in the state and reports that fact on his- return; then the county treasurer may issue a tax warrant to the other county, and if that is returned unsatisfied, may then issue alias tax warrants to the sheriff either of his own county or any other county in the state where the taxpayer resides or has property. It is argued that since this was not done in this case there was no authority for the county treasurer to issue the alias tax warrants. This specific question was before the court in Lumber Co. v. Chandler, 90 Kan. 561, 135 Pac. 601. There the court held adverse to this view. There the W. N. Certain Lumber Company owned a stock of lumber in Miami county and listed the same for taxation. Thereafter and before any tax warrant was issued that lumber company sold the stock of lumber in bulk without retaining any portion thereof and without paying the taxes. In due time the county treasurer issued a general tax warrant, which was returned by the sheriff unsatisfied with a statement that the property had been sold in bulk to one person and without retaining any part thereof, and that the stock of lumber was still in Miami county. Thereupon the treasurer issued an alias tax warrant, which the sheriff levied on the stock of lumber. The then owner brought an action to enjoin the sale. Plaintiff’s contention was that the W. N. Certain Lumber Company owned other lumberyards in other counties in the state, and that the second, or alias, tax warrant should have been issued to the sheriffs of those counties, and that the county treasurer of Miami county had no power or authority in law to issue an alias tax warrant. The court said: “This theory might impose upon county officers the onerous burden of investigating in every county of the state and accurately determining whether the taxpayer had property in any one of them before an alias tax warrant could be legally issued against the property assessed and still in the county. This would be liable to involve more expense than the amount of the tax to be collected, and cannot be the intent of the law.” (p. 563.) In that case a temporary injunction had been set aside by the trial court, and this was affirmed on appeal. Appellees call attention to G. S. 1935, 79-2105, and argue that it was the duty of the treasurer, upon the return of an unsatisfied tax warrant, to file with the clerk of the district court an abstract of the amount of the taxes, penalties and costs, “accompanied by the last tax warrant,” and that the clerk of the court should then enter the amount on his judgment docket, and might thereafter issue a tax warrant, which would have the same force as an execution. It will be noted that it is the duty of the county treasurer to do this “if he believe such delinquent taxpayer has property which cannot be reached by said tax warrant.” Since the tax warrant would authorize a levy on any personal property of the taxpayer, this necessarily means that if the treasurer thinks the taxpayer has real property which could be reached for the payment of the taxes by a tax warrant issued by the clerk of the district court it becomes his duty to make and file such certificate. This section does not require the treasurer to certify the taxes to the clerk of the district court if the treasurer thinks that, notwithstanding the return of the tax warrant, personal property might be reached and levied upon under an alias tax warrant. If the amount of the tax is certified to the clerk of the district court it must be “accompanied by the last tax warrant.” This indicates a legislative concept that the treasurer might have issued successive tax warrants. An alias subpoena, execution, warrant, or writ, is simply one issued after the first has been returned without having accomplished its purpose. (3 Black. 283; 4 Black. 319; 2 C. J. 1033; 3 C. J. S. 514; see, also, Bouv. L. D., where it is said, “It is used of all species of writs.”) The general rule is that one who has authority to issue such an instrument has authority to issue an alias if the first is returned without having accomplished its purpose. This general rule is not abrogated by a statutory provision for issuing an alias execution or writ under special circumstances, such a statute normally being regarded as supplemental to the general power to issue such alias instruments rather than a limitation upon such general power. (23 C. J. 392; 10 R. C. L. 1246; 21 Am. Jur. 44.) We agree with counsel that most of the decisions from other jurisdictions are not helpful because of the variety of statutes in the different states, but a few cases are worthy of note. In Baker v. Lee, 41 Hun (48 N. Y. Sup. Ct.) 591, the action was for damages for taking and selling plaintiff’s wagon under a tax warrant. It seems that the issuing authority had written on the warrant, “Renewed for ten days,” and later added these words, “Renewed for twenty days from the time it run out.” The levy was made under this last extended time. It was contended there was no authority for such extension. The court agreed with that contention, but held that this last renewal was to be regarded as the issuing of a new warrant of the same force and effect in all respects as the original warrant. Under slightly different circumstances the holding on the point here involved was to the same effect in Bird v. Perkins, 33 Mich. 28; Eddy v. Wilson, 43 Vt. 362; Benton v. Merrill, 68 N. H. 369, 39 Atl. 257; Bartlett v. Tufts, 241 Mass. 96, 134 N. E. 630; and The People v. James, 328 ll. 262, 159 N. E. 194; while in Briggs v. Carr, 27 R. I. 477, 63 Atl. 487, where the statute provided that all warrants for the collection of taxes should continue in force until the whole tax was collected, it was held that the -treasurer was not authorized to issue the second warrant. Naturally, in that case the levy could have been made under the first one. In Blain v. Irby, 25 Kan. 499, where the sheriff had levied on property under a tax warrant, it was held that the sale was not void because made after the return day. In Bank of Garnett v. Ferris, 55 Kan. 120, 39 Pac. 1042, the personal-property tax warrants for the years 1890, 1891, 1892 and 1893 were issued on June 30, 1894. The sheriff was proceeding to levy upon and sell property under the warrants when he was enjoined by the taxpayer on the ground, among others, that the treasurer had no authority to issue them at the time they were issued. The injunction was denied, and on this point the court held: “The collection of taxes cannot be enjoined because of the failure of the treasurer to issue the tax warrant for the collection of such taxes at the par- ' ticular time mentioned in the statute.” (Syl. U 2.) In Saunder v. Best, 127 Kan. 135, 272 Pac. 173, the treasurer, without any statutory authority to do so, used a plan of collecting taxes through local banks in various parts of the county. Where the taxes were actually paid by the taxpayers and received by the county the payment was held to be a valid one. The county treasurer, under G. S. 1935, 19-515, by virtue of his office, is made the collector of taxes for the county, and he is required to perform such duties in that regard as are prescribed by law; and by G. S. 1935, 79-2503, it is provided that irregularities in performing the duties of any office in connection with the assessment and collection of taxes shall not invalidate the proceeding. When the tax warrants for the years 1932 to 1936 were returned with the taxes uncollected the taxes were not paid by reason of that fact; the taxpayer still owed the taxes. If the treasurer had reason to think the taxpayer had property which could not be reached by a tax warrant it- was his duty to certify the taxes, accompanied by the last tax warrant, to the clerk of the district court. There is 'no showing in this record that the hardware company owned any real estate, or that the treasurer at the time those warrants were returned thought the taxpayer had property in the county which could not be reached by tax warrants. With the duty imposed upon the treasurer to collect taxes, and with the warrants first issued returned uncollected, and with the taxes not paid, if the treasurer thought the'taxpayer had property which could be reached by a tax warrant it was not inconsistent with his duties to issue an alias tax warrant, and no statute prohibits him from doing so. We feel forced to conclude that the trial court erred in holding the tax warrants to be absolutely void; indeed, it is our view that the treasurer had authority to issue them, and that they were valid. This leads to the discussion of the second question argued — the effect of the failure to comply with the bulk-sales act (G. S. 1935, 58-101 to 58-104). The trial court found that the purchasers (plaintiffs here) had not complied with the bulk-sales act in purchasing the property, and no appeal has been taken from that ruling. But appellees argue that this has no application, contending that the county was not a “creditor” of the hardware company within the meaning of the bulk-sales law. With that contention we cannot agree. Early in the history of that act in this state it was held in Burnett v. Trimmell, 103 Kan. 130, 173 Pac. 6: “The term 'creditors’ as used in the act is not confined to those who have sold merchandise to the vendor, but covers creditors generally.” (Syl. ¶[ 3.) This case was cited with approval in McKnight-Keaton Grocery Co. v. McFadden (Mo. App.), 107 S. W. 2d 176. Under a statute identical with our own the supreme court of North Dakota in Lindstrom v. Spicher, 53 N. D. 195, 205 N. W. 231, 41 A. L. R. 968, held: “Where taxes assessed against a stock of merchandise are past due and unpaid, on a sale in bulk of such merchandise the county to which such taxes are payable is a creditor within the meaning of that term as used in the bulk-sales act (§§ 7224-7227 inclusive, Comp. Laws, 1913), and entitled to the protection and benefits afforded by the act.” The same or similar acts have been passed in many states. In some of the states the statute and the terms used therein have been given a narrow construction, but in this state the opposite view has been taken — the statute has been construed liberally (Saunders v. Graff, 103 Kan. 261, 262, 173 Pac. 413), and held to apply to all classes of creditors of the seller. Appellee argues that to be a creditor one must have a debt due him upon which an action can be maintained. That definition is too narrow. Bouvier defines the words as, “he who has a right to require the fulfillment of an obligation or contract.” Here the hardware company owed its taxes. Under any view argued the county had a right to enforce collection. As the contract between the parties was originally drawn that was recognized, and it contained a clause which bound the purchasers to pay these taxes. Later, when -it was learned that the taxes were more than was at first thought, the clause obligating the buyer to pay the taxes was deleted from the contract. We think this had no effect on whether the county was a creditor of the hardware company. The hardware company still owed those taxes. The county had machinery it could put in operation for their collection. Mr. Evans, president of the hardware company, testified on the trial of this case that he wanted the taxes paid. The trial court found that the purchasers did not specifically agree to pay the taxes either in the written agreement as finally executed or orally with the purchasers. We regard that fact as having no specific bearing. The county, being a creditor of the hardware company, and the bulk-sales law not having been complied with as applied to the county, it could follow the goods sold in the hands of the purchasers, and this it did within seven days after the contract of sale was finally agreed upon, September 3, 1938, if the county, under the circumstances, was required to act within that time. Therefore, we are not concerned with whether or not the taxes were a lien upon the goods sold at the time the contract was consummated and the purchasers took possession. Since the purchasers did not comply with the bulk-sales law, so far as the county was concerned, and since the county was a creditor of the hardware company within the meaning of the bulk-sales law, it was within its rights in following the property into the possession of the purchasers. This was an action in injunction; equitable principles apply to it. (Gulf Railroad Co. v. Morris, 7 Kan. 210.) It cannot be maintained to prevent the collection of a valid tax because of mere irregularities in the acts of county officers. (Dutton v. National Bank, 53 Kan. 440, 36 Pac. 719; Bank of Garnett v. Ferris, supra. See, also, Witschy v. Seaman, 83 Kan. 634, 112 Pac. 739, and Kasparek v. Throop, 98 Kan. 551, 158 Pac. 1114.) We find no equities in favor of plaintiffs that would justify an affirmance of the judgment of the trial court. We have examined all the authorities cited by counsel, and many more, but deem it unnecessary to analyze and distinguish them further. We find nothing in any of them which requires a conclusion different from that which we have reached. From what has been said it necessarily follows that the judgment appealed from should be reversed, with directions to deny the injunction. It is so ordered.

The opinion of the court was delivered by Harman, C.; This is an action for reformation of a contract of sale of a beauty salon. Appeal is from the trial court’s order sustaining defendant’s motion for directed verdict made at the conclusion of plaintiffs’ evidence. Plaintiffs Jean Keck Sipes and June Keck Rice commenced the action by filing their petition March 12, 1965, naming as defendants Edwin E. Crum, his wife, Lucille S. Crum, and Heckel Bros., Inc., a corporation engaged in the wholesale beauty supply business. Plaintiffs alleged that on January 2, 1962, they entered into a written contract with the Crums for the purchase of a business in Topeka known as Eddie’s Beauty Salon, which business was then being operated by Edwin E. Crum. Plaintiffs attached a copy of the contract to their petition in which they alleged: “IV. “That defendant, Edwin E. Crum, represented to the plaintiffs at the time of the execution of the agreement and in the negotiations preceding said agreement that the amount to be paid under the terms of the contract, being $12,000.00, was the actual price paid by him, or its fair market value, for the personal property covered by the agreement.” Plaintiffs further alleged that Edwin E. Crum had great experience and superior knowledge to the plaintiffs of the value of the professional equipment covered by the contract; he had acted in the confidential relationship of friend and adviser in the operation of plaintiffs’ business; Crum knew his representations as to cost to him of the equipment were false; he fraudulently concealed the fact the property conveyed by the contract was the subject of a prior recorded chattel mortgage which he had given to defendant Heckel Bros. Inc.; the items listed on the chattel mortgage were all the personalty covered by the sale contract, with the exception of about $175,000 worth of other items; the mortgage value of $6,209.94 represented the actual cost to Crum of the personalty conveyed by his contract of sale to plaintiffs, except other small items already referred to whose exact value was not known to plaintiffs. Plaintiffs prayed for reformation of the contract upon the basis of fraud “in order that plaintiffs would be liable only for the actual cost, or its fair market value, to defendant, Edwin C. Crum, of the personalty involved”. The sale contract provided that the property being sold was: “The business known as Eddie’s Beauty Salon, 109 A West 29th, Topeka, Kansas, together with the personal property on said premises pertaining to said business as listed on the attached Bill of Sale.” The contract further provided that plaintiffs were to pay the Crums as the purchase price the sum of $12,000 in monthly installments of at least $150.00 commencing March 1, 1962, the principal to bear interest at the rate of five per cent per annum; the premises being leased by the Crums from third parties, plaintiffs agreed to pay the rental specified in the lease to the lessors; the contract recited that under the lease the Crums could not assign their interest in the lease but would remain personally liable thereon. The Crums agreed to obtain lessors’ consent that plaintiffs might pay the specified lease rental directly to lessors so long as the Crums remained personally hable on the lease. The Crums further agreed to assign to plaintiffs their option to renew the lease. The contract further recited the Crums should at once execute to plaintiffs a bill of sale to the property sold under the contract and deposit it in escrow with certain named escrow agents in Manhattan, Kansas, to be delivered to plaintiffs upon their compliance with all terms of the contract. Edwin C. Crum and his wife Lucille filed their answer May 14, 1965, in which they admitted execution of the contract as alleged but denied all other allegations. Mr. Crum died October 22, 1965, and his widow Lucille, as administratrix of his estate, was substituted in his place as a party defendant. Prior to trial Heckel Bros. Inc. was granted summary judgment. We are no longer concerned with it, no appeal having been taken from that order. At trial plaintiffs offered four witnesses: A hairdresser who was manager for Eddie’s Beauty Salon, a salesman for Heckel Bros. Inc., one of the landlords of the premises and plaintiff June Keck Rice. Their testimony revealed the following: Plaintiffs, who are twin sisters, graduated in 1958 from high school at Manhattan, Kansas, at age eighteen. Both were on the school honor roll. Chuck Crum, a son to the Crums, was one of their classmates. Through him they became acquainted with Edwin C. Crum. Shortly after graduation they entered a cosmetology school in Manhattan operated by the Crums known as the Crum Beauty School, graduating from it later in 1958. They attended the school üpon a deferred tuition plan which enabled them to pay for their schooling after they were regularly employed as hairdressers. June worked for Mrs. Crum while attending school. Both paid for their tuition after obtaining jobs. Jean first worked at a beauty shop at Great Bend, Kansas, while June worked at a shop in Manhattan owned by the Crums. Next both worked at Crosby Brothers shop and then at the Gage Beauty and Style Salon in Topeka. They borrowed money from the Crums with which to pay their apartment rent when they first came to Topeka. Later both leased a beauty salon on West Twelfth street in Topeka and operated it for about eighteen months under the name of Keck Twins Beauty Salon. Prior to this last venture they discussed the matter with Mr. Crum and also with an employee of Heckel Bros. Altogether they worked in or operated beauty shops about three and one-half years before entering into the Crum contract: Edwin C. Crum had commenced operating Eddie’s Beauty Salon in Topeka in May, 1961. He had expected his son or some other relative to go into the business with him but this did not materialize. New operators with no following were employed. The shop was not making money but was doing better financially each week. The monthly rental on the shop was $400.00. Crum had purchased at wholesale prices from Heckel Bros, certain beauty equipment used in the shop. This equipment was that listed in the chattel mortgage to Heckel Bros, for which Crum paid $6,209.94. A beauty school operator receives a discount which a normal purchaser does not get. Plaintiffs’ lease on their West Twelfth street business was not going to be renewed. January 2, 1962, after some discussion, they entered into the sales contract with the Crums. Mr. Crum said he would let plaintiffs purchase the business for his cost plus certain other items. He listed upon a piece of paper items which went with the business. He stated his cost was $12,000. Plaintiffs did not read the sales agreement but simply signed it in the office of the escrow agent. Later on they got a copy of the agreement but never received a copy of the bill of sale referred to in the agreement. Plaintiffs commenced actual operation of the business February 2, 1962. Previously they had talked to Crum about business matters and they relied upon what he said. When they were nineteen years of age they decided to purchase an automobile but because of their age were unable to obtain credit. Mr. Crum cosigned their note for this purchase. Plaintiffs visited in the Crum home socially three or four times and attended social events with the Crums. Jean talked to Mr. Crum about her first marriage; he advised against it; Jean married despite this advice; five years later she was divorced and has since remarried. Plaintiffs made the $150.00 payments until May 1, 1963, at which time upon Mr. Crum’s request they increased the payments to $175.00 per month. After December, 1966, upon advice of counsel, they dropped back to $150.00. They had previously talked to their landlord about what they had paid for the business and he advised them to see a lawyer. They also discussed the price of the business with a salesman for the wholesale beauty supply company. At one of several pretrial conferences the parties stipulated that the cost to the Crums of the items listed in the chattel mortgage was $6,209.94. The parties also stipulated the cost of certain other named items which were included in the sale was $1,135.00 but that the cost of plumbing, extra labor costs and supplies remained in dispute. The chattel mortgage was paid by the Crums and released of record prior to trial. Plaintiffs later paid Mr. Crum $200.00 for supplies. As indicated, at the conclusion of plaintiffs’ evidence, the trial court sustained defendant’s motion for summary judgment, giving two reasons for its action: First, there had been no proof of the cost or value of several items of property covered by the sales contract, and second, there had been no clear and convincing evidence of fraud. Upon appeal appellants present several contentions. They argue a confidential relationship existed between them and Mr. Crum which was breached by the latter in failing to make full disclosure. However, no cogent argument or authority is offered to support the assertion of confidential relationship and we are aware of none. The term “confidential or fiduciary relation” is a very broad one and courts generally have refrained from defining the particular instances of fiduciary relations in such a manner as to exclude other and perhaps new cases. Confidence alone is not enough to establish a fiduciary relationship (37 Am. Jur. 2d, Fraud and Deceit, § 16). In Paul v. Smith, 191 Kan. 163, 380 P. 2d 421, this court stated: “It has been recognized that a fiduciary relationship between parties does not depend upon some technical relation created by, or defined in, law. It exists in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard for the interests of the one reposing the confidence. “Fiduciary relationships recognized and enforceable in equity do not depend upon nomenclature; nor are they necessarily the product of any particular legal relationship. They may arise out of conduct of the parties evidencing an agreement to engage in a joint enterprise for the mutual benefit of the parties. But they necessarily spring from an attitude of trust and confidence and are based upon some form of agreement, either expressed or implied, from which it can be said the minds have met in a manner to create mutual obligations. “For the plainest of reasons, agreements establishing fiduciary relationships, if not in writing, must be clear and convincing. Because of the acuteness of the equitable remedies, courts will not reach out to establish legal relationships from which enforceable equitable rights may flow. A confidential relationship is never presumed, and the burden of proof is upon the party asserting it. “Mere concert of action, without more, does not establish a fiduciary relationship. Undoubtedly, parties may deal at arm’s length for their mutual profit. It is only when, by their concerted action, they willingly and knowingly act for one another in a manner to impose mutual trust and confidence that a fiduciary relationship arises.” (Citations omitted.) (pp. 169-170.) We would do no service in belaboring the evidence on the point. Suffice it to say, we think it insufficient to establish any confidential relationship between these parties. Appellants argue that when cost was stated by Crum to be the selling price of the property being sold them Crum would have had the duty to disclose that cost even to a stranger and there would be fraud even if a stranger were involved. In their brief they state: “. . . it was indeed the intention of the parties that the contract in question was only for the major equipment and was not for the beauty shop as a completed, working unit.” We think the contention cannot prevail in the fact of the plain language in the contract that what was being bought and sold was: “The business known as Eddie’s Beauty Salon, 109 A West 29th, Topeka, Kansas, together with the personal property on said premises pertaining to said business as listed on the attached Bill of Sale.” Moreover, there was nothing in the evidence to indicate any intention contrary to that clearly expressed in the contract. Appellants further contend there was actually only a disputed area of $785.00 between the parties, this being arrived at as follows: $585.00 for necessary plumbing installed on the premises by the Crums and $200.00 for extra labor. The record does reveal proof in the form of the parties’ stipulation of the cost or value of certain items up to $7,344.94 ($6,209.94 for items listed in the chattel mortgage and $1,135.00 for washer and dryer, drapes, clock, pole lamp, partition and outside sign), but it contains nothing by way either of evidence or stipulation beyond these items and nothing as to the value of any plumbing or extra labor. Appellee contends more was sold under the contract than those items mentioned by appellants—that in fact a going business was bargained for and received and there was nothing in the evidence from which a jury could have determined either the market value of that which appellants received in the total package or of its cost to the Crums, and hence there was no proof of false representation of any material fact. We are inclined to agree. In their petition appellants pleaded that Crum represented the contract figure of $12,000 was the price paid by him, or its fair market value. This allegation was never modified at any of several pretrial conferences and remained an issue upon which appellants went to trial. Actually there was no evidence from which it could be concluded appellants got less in value than that for which they bargained. Their dilemma may perhaps be demonstrated by certain colloquy between the court and counsel immediately before trial: “The Court: In order for you to have recovery the jury’s going to have to find that the agreement was to pay and buy this transferred personal property. “Mr. Scott: That’s right. “The Court: And pay the actual cost to him? “Mr. Scott: Right. “The Court: And he represented it was $12,000.00 but the contract calls for certain personalty in a business, that’s your problem? “Mr. Arthur: They say it’s $6,200.00 and some dollars. “The Court: I will instruct the jury, if you find that the agreement was between the plaintiff and defendant that they would pay to him the actual cost of this personalty, then the measure of damages would have been— “Mr. Scott: (Interrupting) You would have to give two instructions. If you find that the plaintiffs agreed to pay to the defendant $12,000.00 for their business which included the personalty then you must find for the defendant. “The Court: That’s right. In other words if they had an agreement which included more than the personalty you don’t have any case. “Mr. Scott: We don’t have a thing to hang our hat on. “The Court: Now I am getting down to it. If they find— “Mr. Scott: (Interrupting) If they find that the agreement of the parties was to the effect that plaintiffs were to pay to the defendant the actual cost to the defendant then in that event there would be a difference— “The Court: (Interrupting) But if they find the agreement was to pay the money for the personalty transferred as a going business you are out? “Mr. Scott: We are out. If there’s good will in this thing we are through. “Mr. Arthur: That’s the point I was trying to get across. “Mr. Scott: It’s really a simple thing, you have got two stories, and if they find this contract covers more than the personal property they don’t know what that value is, we don’t have any case.” In Todd v. Wichita Federal Savings & Loan Ass’n, 184 Kan. 492, 337 P. 2d 648, this court capsuled the essential elements of fraud, stating: “Where a plaintiff seeks to recover because of the fraud of the defendants, based upon false representations, it is incumbent upon him to allege and prove what representations were made, that they were false, that he believed them to be true, and that he relied and acted upon them to his detriment.” (p.494.) And in Hoch v. Hoch, 187 Kan. 730, 359 P. 2d 839, this court commented on the proof requisite in a fraud action: “. . . one who asserts fraud must prove it by a preponderance of the evidence; . . . such evidence should be clear, convincing and satisfactory, and ... it does not devolve upon the party charged with committing the fraud to prove tire transaction was honest and bona fide. Fraud is never presumed; it must be proved. Mere suspicion is not sufficient.” (p. 732.) Measured by the foregoing we are unable to see any clear and convincing evidence of false representation relied upon by appellants to their detriment. As stated by the trial court in its ruling on the motion for directed verdict appellants offered proof only as to cost or value of part of the property involved in the contract. Appellants did not put into evidence the bill of sale. They say they never received a copy of it. Appellee counters with the statement appellants have never sought to secure the original, or a copy, and it remains with the escrow agents attached to the contract upon which appellants are still paying. Appellants have apparently ignored the bill of sale in an effort to limit the amount of property involved in the sale. Appellee points out further a going business was sold which included a lease with an option to renew, and, in addition to the plumbing, labor and other unspecified items, there was no evidence as to value of the business, the lease or the option to renew and hence no showing of false representation or that appellants have been damaged. Appellee also points out no down payment was required on the contract and the fact the Crums remained liable for any default in rental payments under the lease on the property, in effect underwriting appellants’ purchase of a business. There simply was insufficient evidence to show misrepresentation as to cost or value of the property sold. Upon this element alone the fact finder would have been left to sheer speculation in order to support appellant’s ultimate contentions, and the trial court properly directed a verdict against them. Appellants emphasize the fact certain equipment was subject to a recorded chattel mortgage, but the mortgage having been paid and released prior to trial, it could be no impediment to completion of the escrow agreement and delivery of the bill of sale by the escrow agents to appellants when they become entitled to it. We find no error in the judgment appealed from and it is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Harman, C.: These are consolidated actions for damages for personal injuries sustained in a one car collision. Breach of implied warranty in repair work performed by defendant on the vehicle’s brakes was the basis for the suits. Trial was to a jury. Judgment was entered upon a verdict in favor of defendant, from which plaintiffs have appealed. The questions upon appeal primarily concern propriety of instructions to the jury. Plaintiff William Bereman filed his petition in which he alleged that during the year 1962 defendant was operating an automobile repair service and garage located at 4610 State Avenue, Kansas City, Kansas; that on May 23, 1962, his wife Minnie Bereman took their 1958 Pontiac automobile to defendant’s place of business with in structions to examine and make repairs to the brake system; that defendant undertook to make such repairs and warranted he had done so and such vehicle would be suitable and safe for operation; that on May 26, 1962, while plaintiff was operating the vehicle in Kansas City, Missouri, the brakes failed to function properly with the result he veered into a light pole and sustained personal injuries. Plaintiff alleged breach of implied warranty by defendant causing the collision and his injuries. Plaintiff Carl Stone made similar allegations in his petition, stating he was a passenger in the automobile at the time of the collision and sustained personal injuries. Stone died prior to trial and his sister, Minnie Bereman, was appointed administratrix of his estate and substituted as plaintiff in the action filed by him. Defendant’s amended answer consisted of a general denial and an allegation of contributory negligence and assumption of risk on the part of plaintiff William Bereman and of Stone. The actions were consolidated and tried together. The questions raised upon appeal necessitate brief review of certain evidence at trial. Bereman had purchased a 1958 Pontiac automobile in 1961. Shortly prior to May 16, 1962, he had personally done some work on the bearings of one or both front wheels; on May 16, 1962, his wife took the automobile to appellee’s neighborhood garage for repair work. At this time the car had some 90,000 miles on it. The testimony was controverted as to the exact nature of the work requested but in any event appellee repaired a leak in the master cylinder of the brakes on that date. Thereafter Mrs. Bereman continued to drive the car although the brakes felt soft and spongy. On May 23, 1962, while proceeding through an intersection she applied the brakes and found they were not working. As she was near appellee’s garage she drove the car there for further repairs. Again the evidence was conflicting as to the conversation and the repairs requested. Appellee made some brake and wheel bearing repairs to the right front wheel that day for which he was paid by Mrs. Bereman upon his assurance the brakes were all right. Mrs. Bereman drove the car for two more days prior to the collision. The brakes still had a spongy feeling but she had no trouble with the car pulling to the right. Mr. Bereman drove the car on Saturday morning, May 26,1962. On Saturday afternoon, May 26, Mr. Bereman, accompanied by Mrs. Bereman, Mr. Stone and a granddaughter, was driving the vehicle eastward on Forty-Seventh Street in Kansas City, Missouri. When he reached Paseo Boulevard he was in the lane nearest the center. He applied the brakes and they grabbed so that the car verred about one foot to the right. While stopped at a traffic light Mr. Bereman determined the brakes were working improperly and that they should turn around and go back to appellee’s garage and he so stated to his passengers. He continued eastward on Forty-Seventh Street which becomes Swope Parkway east of Paseo. He went several blocks, passing two service stations of which he was aware. As he proceeded east on Swope Parkway, a four-lane roadway, he started to pull into the right lane of traffic and upon observing cars ahead of him which had stopped for a light, he applied the brakes. The car swerved to the right and with considerable impact struck a utility pole on the right side of the street, causing injury to both Mr. Bereman and Mr. Stone. The vehicle made a twenty-five foot skid mark commencing in the center lane and veering toward the right. Speed of the vehicle was estimated by the Beremans to be from twenty-five to thirty miles per hour; one eyewitness testified on appellee’s behalf that the car “appeared to be traveling at an excessive rate of speed”. We may say in passing appellants presented a strong prima facie case of unworkmanlike, performance on the part of appellee in the repair work. If credited by the jury, it was to the effect he had installed on the right front wheel new brake shoes of a different type from the worn brake shoes in the opposite or left front wheel, contrary to proper practice in such a situation, and resulting in uneven braking application. In appellee’s behalf is should be stated much of appellants’ evidence, including the nature and effect of the repairs, was controverted and he also produced evidence the veering was caused by grease in the left front wheel, such grease not having been there when the vehicle left his hands. However, we are concerned only with the character of the evidence as it relates to the particular questions upon appeal. The principal complaint centers about the giving of an instruction to the effect that if the driver of the vehicle and his passenger were aware of the alleged defect in the vehicle, or should have been aware of it, and continued thereafter to use the vehicle, then they could not recover. Appellants first contend the instruction was so worded that it placed a duty upon them to hunt out and discover any defect in the repair work. We think this is a strained and not a fair construction of the instruction. The duties were couched only in terms of a general standard of ordinary care under the circumstances and placed no burden upon appellants beyond that. The instruction referred to the duty to exercise care as to obvious defects which were known, and here, concededly, the defect complained of was known. Appellants were not prejudiced in the respect complained of. A more serious question is appellants’ contention that contributory negligence is not a defense to an action for breach of implied warranty. We should point out that the instructions did not use either of the phrases contributory negligence or assumption of risk, which were pled in appellee’s amended answer. The instructions recited a general duty to use ordinary care and prudence for one’s own safety and protection and they specifically referred to continued use of the defective vehicle after Bereman and Stone knew of the defect, without a label descriptive of that defense. Along with many courts we have generally adhered to the view contributory negligence and assumption of risk are separate defenses but confusion has sometimes resulted from efforts made to distinguish them in all cases.. We shall not attempt further refinement here—instead we shall try to avoid semantic problems. Several courts have now abandoned use of the phases contributory negligence and assumption of risk in implied warranty cases and, instead, approach the problems of a defense of that character in terms of causation (see anno. 4 ALR 3d 501, 504-505). Appellants treat the issue as one of contributory negligence, saying the trial court should not have permitted evidence of contributory negligence to be injected into an implied warranty suit in the first place and should not have instructed the jury upon that issue. We will treat these two questions together, as have the parties. An excellent annotation on the subject “Contributory negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach of implied warranty” appears at 4 ALR 3d 501, where it is stated the cases are in disagreement, some jurisdictions holding that contributory negligence is available as a defense to breach of implied warranty, others that it is not. The annotator concludes there are cases lending support to both views in Kansas (p. 504). Our first case to be noticed is Challis v. Hartloff, 136 Kan. 823, 18 P. 2d 199, a breach of implied warranty action against a broker and a retail dealer. Plaintiff in his petition alleged the broker sold flour to the retail dealer who in turn sold a sack to plaintiff for human consumption and that it contained arsenic, and plaintiff was made ill by eating food prepared from the flour. Defendants filed their answers to this petition alleging numerous defenses including contributory negligence. The trial court overruled plaintiff’s demurrer to this answer from which order defendants appealed to this court. In partially reversing the trial court’s ruling this court held that contributory negligence is not a defense to an action for breach of implied warranty (Syl. [5]). The whole discussion of the subject in the opinion is the following: “As to the defenses of contributory negligence and those negativing any possible carelessness [on the part of defendants] they are only proper defenses to the allegation of negligence. “ ‘The doctrine of contributory negligence rests in the law of tort as applied to negligence, and is governed by the principles peculiarly applicable to that branch of jurisprudence.’ (45 C. J. 941.)” (p. 828.) The opinion does not disclose the particular facts, if any, which may have been alleged in the answer as constituting contributory negligence. Records of the case filed in the court archives do not contain the allegations of the answer, so we are unable to ascertain what they consisted of factually. The opinion does stress the rule that negligence of a manufacturer is not an issue in an action for breach of implied warranty. Apparently the court reasoned that inasmuch as negligence of the defendant is not an issue in a breach of warranty action, contributory negligence should not be a defense. In Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P. 2d 633, the opinion merely repeated the foregoing holding, stating: “We held in Challis v. Hartloff, 136 Kan. 823, 18 P. 2d 199, that neither allegations of contributory negligence nor those negativing any possible carelessness on the part of defendants are an answer or defense to an action to recover on a breach of an implied warranty.” (p. 38.) However, in Simmons the question before the court was whether negligence of a manufacturer or bottler was an issue in an action for damages for breach of implied warranty. The question of contributory negligence on the part of one using a defective product was not in the case in any way. In Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P. 2d 850, the action was one for damages against a manufacturer and a distributor for breach of warranty. Plaintiff alleged she used a certain brand of soap flakes in washing dishes and as a result sustained injuries to her hands. Defendants in their answer alleged contributory negligence and further alleged that plaintiff knew, or by the exercise of reasonable care could and should have known of any danger to which she was exposed, notwithstanding which she continued to work and she assumed the risk of being injured. At the conclusion of plaintiff’s evidence the court sustained defendants’ motion for judgment and plaintiff appealed. In affirming the judgment this court gave weight to the fact plaintiff had continued to use the allegedly offensive flakes for several weeks, perhaps for more than three months, although she was receiving treatment from doctors and getting salve or ointment for hands from a drugstore. The holding in Frier was discussed and amplified soon thereafter in Graham v. Bottenfield’s Inc., 176 Kan. 68, 269 P. 2d 413: “Resort to that opinion [Frier] discloses there was no claim the petition failed to state a cause of action, that the cause proceeded to trial, and that at the close of plaintiff’s evidence the court took the case away from the jury, after a demurrer had been lodged against the plaintiff’s evidence, and rendered judgment for the defendant principally, if not entirely, upon the premise that under the conditions and circumstances there involved the plaintiff’s continued use of the product made her guilty of contributory negligence which precluded her recovery as a matter of law.” (pp. 70-71.) We must agree with the annotator’s conclusion our cases are not in harmony. Both parties here cite and rely on different parts of a particular section in 2 Frumer-Friedman, Products Liability, to support their position. The whole problem may perhaps best be clarified by quoting the entire section (16.01 [3]), which is as follows: “While it is clear that plaintiff need not prove negligence in a warranty-products liability case, it is not as clear whether contributory negligence as such is a defense to such an action. While there is authority to the contrary, it is arguably the better view that contributory negligence as such, as distinguished from misuse of the product, is not a defense. Depending upon the facts, the distinction between contributory negligence and misuse of the product may be nothing more than a matter of semantics. In other words, some courts have talked of contributory negligence as a defense in warranty when they could have said instead that there was misuse or voluntary and unnecessary exposure to risk with knowledge of the danger, which generally is a defense to strict liability. “Bahlman v. Hudson Motor Car Co. is probably the leading case holding that contributory negligence is not a defense to a warranty action. In Bahlman, defendant-rear manufacturer expressly warranted that a car roof had no seams and consequently no jagged edges. Plaintiff’s negligent driving caused the car to overturn and his head was cut by the jagged edges of the seam. The Bahlman court, in addition to stating that there was ‘no reason nor authority’ for introducing the defense of contributory negligence into an action for breach of warranty, also reasoned: “ ‘Under such rule, although a manufacturer had falsely advertised that a windshield was made of shatterproof glass, as in the now famous case of Baxter v. Ford Motor Co., . . ., he would be allowed to escape the consequences of that deliberate misrepresentation because the plaintiff was exceeding the speed limit when a pebble flew up and shattered the glass. . . . It is undoubtedly true that [in the instant case] the negligence of the driver caused the car to overturn, but defendant’s representations were not for the purpose of avoiding an accident, but in order to avoid or lessen the serious damages that might result therefrom. . . . The particular construction of the roof of defendant’s car was represented as protection against the consequences of just such careless driving as actually took place. Once the anticipated overturning of the car did occur, it would be illogical to excuse defendant from responsibility for these very consequences.’ “The court, it would seem, was actually saying in this case that contributory negligence is not a defense where the injury directly results from an unknown defect warranted against. “As stated in Hansen v. Firestone Tire and Rubber Co., a recent Sixth Circuit case following Bahlman: “ ‘If the manufacturer chooses to extend the scope of his liability by certifying certain qualities as existent, the negligent acts of the buyer, bringing about the revelation that the qualities do not exist, would not defeat recovery.’ “The distinction, with respect to defense to breach of warranty, between contributory negligence in the sense of failure to exercise due care to discover a' defect and contributory negligence, in the sense that there is unreasonable exposure to a known risk, was stated by the Illinois court in a products liability case years ago as follows: “ ‘A party may not recklessly use a defective instrument with full knowledge of its dangerous condition, ... If the defect were not apparent, or , even if it were discoverable by an inspection, but was not discovered through the negligent failure to inspect, an entirely different question would be presented. . . . Here is a known dangerous condition, . . .’ “Most of the cases probably can be reconciled on this basis, that the courts which say that contributory negligence is a defense have in mind the situation where there is actual knowledge of the risk. Of course, it must be kept in mind that the courts sometimes speak of contributory negligence when, on the facts, they are actually saying that the plantifFs injuries were caused solely by his own negligence. The court may also use contributory negligence language in a situation where actually there was no breach of warranty. / “The distinction made in the preceding paragraph with respect to types of contributory negligence does not, however, square with cases under the Uniform Sales Act which deny recovery for failure to inspect or to adequately inspect, where such inspection would have revealed the defect. Under the Uniform Commercial Code, ‘if the buyer discovers the defect and uses the goods anyway, or if he unreasonably fails to examine the goods before he uses them, resulting injuries may be found to result from his own action rather than proximately from a breach of warranty.’ “What rules should apply in a warranty action, especially where the injured person is a non-commercial consumer? Unreasonable exposure to a known and appreciated risk should bar recovery, just as presently held and just as it bars recovery in negligence. In the case of an express warranty, contributory negligence should clearly not be a defense, where the injury results from an unknown defeat warranted against, and the contributory negligence is just that and not the equivalent of unreasonable exposure to a known and appreciated risk. Turning to implied warranty, it is unreasonable to require the non-commercial consumer to make any sort of detailed or expert inspection. However, with this in mind but accepting the view that products liability in warranty is basically liability in tort, contributory negligence should be a defense to breach of implied warranty just as in the negligence cases. Otherwise, we impose the same strict liability for products as presently exists, for example, with respect to wild animals and other ultrahazardous activities. It is one thing to say that there is strict liability in the sense that proof of negligence should not be required; it is quite another to say that contributory negligence (with duty of inspection limited as suggested above) should not be a defense. This, in substance, is what the cases actually may be saying. “Contributory negligence as a defense to strict liability in tort is discussed in § 16A [5] [f] infra. As there discussed, the Restatement of Torts Second § 402A, in adopting the rule of strict liability in tort, makes a distinction similar to that made above. Contributory negligence in the sense of a failure to discover a defect, or to guard against the possibility of its existence, is not a defense. Contributory negligence in the sense of an unreasonable use of a product after discovery of the defect and the danger is a defense.” In Restatement of Torts, Second, § 402A, Comment n., we find this: “Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.” (p. 356.) We have always recognized that in a products liability case based upon negligence, contributory negligence is a defense (see discussion and cases cited at PIK 13.06, p. 381). It is difficult to see why a different standard of care should be applicable to the user in a products liability case based upon breach of implied warranty. In either instance the basis of the user’s recovery is the release of a defective or harmful product (Jacobson v. Ford Motor Co., 199 Kan. 64, 67, 427 P. 2d 621). If that product be unreasonably used with knowledge of its harmful condition, why should that defense be denied when breach of implied warranty is relied upon but allowed when actual negligence is the basis for recovery? No reason suggests itself. In Frier this court recognized that continued use of a product after knowledge of its danger may constitute a defense to an alleged warrantor. This principle appears to be logical and just, irrespective of the particular label attached to such a defense. A plaintiff first of all relies on the warranty of fitness in using the product. When he is injured, he must establish that the alleged breach of warranty was the proximate cause of his damage. He cannot recover in the absence of such a showing. If a plaintiff proceeds in the use of a product in disregard of a known danger it cannot be said he relied on the implied warranty of fitness, and its breach is not the proximate cause of the injury. We think the Frier rule as elaborated in Graham, is more in accord with reason and justice than the earlier broad general statement found in Challis. Accordingly, the Challis statement, viewed as a rule of unlimited applicatilon to all cases of implied warranty, is disapproved. As applicable to the facts of this case, we hold that an unreasonable use of a product after discovery of a defect and becoming aware of the danger is a defense to an action for breach of implied warranty of fitness. This principle was fairly embodied in the trial court’s rulings on admission of evidence and in the instructions complained of. We might point out appellants have raised only the issue of the propriety of such a defense as an abstract matter of law; they have not challenged sufficiency of the evidence to make determination of that issue a question of fact for a jury. Appellants also complain they were not permitted by the trial court to have a directed verdict on the liability issue by reason of that which obviously was an inadvertent admission in appellee’s pleading. Being raised as it was for the first time after three pretrial conferences held to define the issues and after introduction of all the evidence at trial, the contention is so hypercritical and devoid of merit that further discussion is not warranted. The judgment is affirmed. APPROVED BY THE COURT.

Per Curiam,-. This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Allen B. Angst, of Abilene, an attorney admitted to the practice of law in 1982. The formal complaint alleged respondent violated Kansas Rules of Professional Conduct (KRPC) 8.4(b) (2003 Kan. Ct. R. Annot. 464) by committing the criminal act of domestic battery. The respondent self-reported his conviction of the misdemeanor offense in the District Court of Dickinson County to the Disciplinary Administrator. The respondent stipulated to the allegations contained in the amended formal disciplinary complaint filed herein which included the conviction. The facts may be summarized as follows. On January 22, 2002, the respondent’s household consisted of respondent, his wife, her 9- and 11-year-old daughters from a prior marriage, and the couple’s infant son. An argument broke out which ultimately involved the whole household except for the infant. The younger stepdaughter telephoned the police, and respondent was arrested after the wife told the officer on the scene that respondent had grabbed and pushed her. In finding the respondent guilty in a bench trial, the district judge stated in pertinent part: “And I would submit to you, and I think both parties, if they look in their hearts in this matter, would say that, any pushing or shoving or anything else was inci dental to the argument. It was not the primary focus of anything. Nobody was striking anybody or kicking anybody. “Mom [Mrs. Angst] says, all along, he grabbed her and shoved her out of the doorway. Unfortunately, a battery has nothing to do with whether or not somebody got hurt or somebody got hit. It’s rude, insulting or angry manner, touching; touching in a rude insulting or angry manner. Doesn’t have anything to do with hitting, kicking, biting scratching. It has to do with touching. “Her testimony has been consistent, statement made to the officer that night. . . . “I think there was a battery that occurred that night with respect to her. It’s been proven to the Court; and I’ll find him guilty of the domestic battery . . . .” In the Final Hearing Report, the panel made the following conclusions and recommendations. “CONCLUSIONS OF LAW “1. Kan. Sup. Ct. R. 202 details the ‘grounds for discipline,’ in pertinent part, as follows: ‘A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for tire purposes of any disciplinary proceeding, shall be deemed a conviction of the crimes originally charged. All other civil,judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to their validity. The burden shall be on the respondent to disprove the findings made in the civil judgment.’ “2. KRPC 8.4(b) provides that ‘[i]t is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ Id. The Hearing Panel concludes that the Respondent violated KRPC 8.4(b) by committing the criminal act of domestic battery.” The panel then formulated its recommendation for discipline as follows: “RECOMMENDATION “In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant-to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to the public and the legal profession to maintain personal integrity. “Mental State. The Respondent knowingly violated his duty. “Injury. As a result of the Respondent’s misconduct, the Respondent caused potential injury. “Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present: “Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions. “The Disciplinary Administrator previously informally admonished the Respondent on two occasions. On March 14, 1995, the Disciplinary Administrator informally admonished the Respondent for violating MRPC 1.15. See Disciplinary Administrator’s Exhibit 5. On November 28,1995, the Disciplinary Administrator informally admonished the Respondent for violating MRPC 3.4, MRPC 4.4, and MRPC 8.4. “On March 7, 2003, the Kansas Supreme Court censured the Respondent for having violated KRPC 1.5, KRPC 1.15, and KRPC 1.16. The censure was published in the Kansas Reports at 275 Kan. 388 (2003). “Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent stipulated to the facts in this case. Despite Kan. Sup. Ct. R. 202, the Respondent maintains that his conviction does not amount to a violation of the Kansas Rules of Professional Conduct. “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1982. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of twenty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct. “Illegal Conduct. The Respondent engaged in illegal conduct when he committed the crime of domestic battery. ’’Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: “Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case. “The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct. “Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Abilene, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel. “Remoteness of Prior Offenses. The discipline imposed in 1995 is remote in time to the misconduct in this case. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3 “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that the censure be published in the Kansas Reports.” EXCEPTIONS Respondent has filed the following exceptions to three aspects of the Final Hearing Report: 1. The finding of fact that “[d]uring the argument the Respondent grabbed and pushed his wife”; 2. The statement that respondent “knowingly” violated his duty to the public and the legal profession to maintain personal integrity; and 3. The statement that respondent refused to acknowledge the wrongful nature of his conduct. DISCUSSION The Grabbing and Pushing Finding of Fact In disciplinary proceedings, “this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence.” In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). “This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” Lober, 276 Kan. at 636-37. Accord In re Pyle, 278 Kan. 230, 236, 91 P.3d 1222 (2004) (quoting Lober). The respondent takes exception to the panel’s finding that “during the argument, the respondent grabbed and pushed his wife.” He cites to certain passages from the trial transcript wherein the court stated “nobody was striking anybody or kicking anybody” to support his claim. This argument is without merit and specifically ignores that part of the transcript where the district court reviewed the wife’s testimony, who said “all along, [that] he grabbed her and shoved her out of the doorway.” Respondent’s criminal conviction is conclusive evidence of the commission of that crime in a disciplinary proceeding. Supreme Court Rule 202 (2003 Kan. Ct. R. Annot. 223); In re Matney, 248 Kan. 990, 811 P.2d 885 (1991). Respondent was convicted of domestic battery which is defined in relevant part as “intentionally or recklessly causing bodily harm ...; or intentionally causing physical contact . . . when done in a rude, insulting or angry manner.” K.S.A. 2003 Supp. 21-3412a. Thus, the panel’s finding of fact that respondent “grabbed and pushed his wife” is supported by his criminal conviction and pertinent parts of the trial transcript. The respondent’s exception is without merit. Knowingly Violating Respondent’s Duty Respondent takes exception to the panel’s finding that he knowingly violated his duty to the public and the profession by his conduct. This finding is one of the factors the panel considered in recommending the appropriate sanction. The respondent claims that he was “in no way . . . knowingly violating his duty as an attorney” because “there was only an argument that occurred. . . and [he] was attempting to [leave the premises] when this incident allegedly occurred.” Respondent does not contend his conduct was accidental. The domestic incident resulted in respondent’s conviction of domestic battery. The conviction occurred and is a fact to which respondent stipulated. The panel reviewed evidence concerning the respondent’s conviction including the trial transcript. The respondent also testified at length in mitigation and never claimed that he lacked an awareness or understanding that his conviction constituted a violation of his duty. The panel’s finding is supported by the record. We find no merit in this exception. Failure to Acknowledge Wrongdoing Respondent contends his self-reporting of his conviction negates the panel’s finding that he does not acknowledge the wrongful nature of his conduct. Respondent reported the fact of his conviction, but argues the conviction is not a violation of KRPC 8.4(b). In essence, respondent’s argument is aimed at minimizing his culpability. We find no merit in this exception. We have reviewed the record and adopt the panel’s findings and conclusions that respondent violated KRPC. 8.4(b). The panel recommended the discipline of published censure be imposed. Both the Disciplinary Administrator and the respondent agree with the recommended discipline. We agree that such discipline is appropriate. . It Is Therefore Ordered that Allen B. Angst be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2003 Kan. Ct. R. Annot. 226) for his violations of the Kansas Rules of Professional Conduct. It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.

The opinion was delivered by Luckert, J.: A juiy convicted Kyle Cavaness of premeditated first-degree murder, conspiracy to commit premeditated first-degree murder, and aggravated kidnapping. The trial court sentenced die defendant to life on the murder conviction, a consecutive term of 123 months’ imprisonment on the conspiracy conviction, and a concurrent term of 165 months’ imprisonment on the aggravated kidnapping conviction. The defendant timely appeals, arguing that the trial court erred in refusing his request for a jury instruction on the lesser included offense of unintentional second-degree murder, that the trial court erred in admitting into evidence gruesome pictures of the murder victim, and that insufficient evidence supports his conviction of premeditated first-degree murder. We reject his arguments and affirm. Kyle Cavaness’ sister, Alisha Gray, testified that in October 2002, she was living with the defendant and Ryan Goldenburg at a home in Wyandotte County. The victim, Deangelo Wheeler, had also been staying at the home for a few days before the murder. Gray testified that on the night of October 9, 2002, Gray, Ca-vaness, and Wheeler left the house to purchase crack cocaine while Robbie Buehler-May and Goldenburg remained at the house. When they returned to the house, Gray, Cavaness, and Goldenburg smoked the crack while Buehler-May and Wheeler smoked marijuana. Around 5 a.m., Goldenburg and Wheeler left to buy more crack, leaving. Gray, Cavaness, and Buehler-May at the house. When Goldenburg and Wheeler returned, Wheeler realized his marijuana joint was missing and accused Gray, Cavaness, and Buehler-May of stealing it while he was gone. Buehler-May and Wheeler got into a heated verbal argument which eventually involved everyone. Wheeler was told to leave, but he refused. After about an hour, Gray, believing that the men were about to fight, went into her bedroom. The men went outside. Cavaness had a baseball bat, Goldenburg had bolt cutters, and Buehler-May had a wooden pole. Wheeler had no weapon. Gray heard someone other than Wheeler yell, “Hit him.” She then heard someone say, “Get him back in the house.” When the men carried Wheeler back into the house, Gray observed that there was a big, bleeding gash on his forehead and that he appeared to be unconscious. Gray returned to her bedroom. When she heard a few more blows, she called Cavaness into her bedroom and asked him whether Wheeler was alive. Cavaness replied, “Yes.” Gray stated that, from the time the men came back inside the house, Cavaness spent “[a]lmost the entire time” in Gray’s bedroom but did come and go from her room, as did Goldenburg and Buehler-May. Gray heard one of the men say that they could not let Wheeler go in that condition, and no one disagreed. Cavaness called the next-door neighbor, Michael Dressier, asking him for something with which to tie up Wheeler. When Dressier brought telephone wire over to the house to bind Wheeler, he saw Wheeler lying on the floor with his feet moving. Dressier left and returned iater at which time he observed that Wheeler’s feet were bound. He heard Wheeler moaning or calling out. ■ Gray testified that about a half hour after the men brought Wheeler into the house, Buehler-May came into the bedroom and said that he had broken Wheeler’s neck and that he was dead. Buehler-May and Goldenburg then wrapped the body in a tarp and put it on the deck. Ashley McCann testified that she was close friends with Buehler-May. On October 10, 2002, Buehler-May called McCann and asked her to come over to his apartment because he needed to talk to her. When she arrived, Buehler-May told McCann that he had killed someone the night before. Later the same day, Buehler-May and McCann drove to Cavaness’ house. Gray, Goldenburg, and Cavaness were at the home. McCann noticed blood on a recliner in the living room, as well as blood on the walls and ceiling. Bueh-ler-May, Goldenburg, and Cavaness began describing how they had beaten and eventually killed the victim the night before. McCann described Cavaness as smiling and laughing during the conversation. At one point Cavaness lifted a dust pan to show McCann a puddle of blood hidden underneath. Buehler-May pointed out to McCann where the victim’s body was outside. McCann heard the men discuss disposing of the body by burning it or throwing it in the river and disposing of their bloody clothes by burning them. That evening, the three men dumped Wheeler’s body into the river. Gray later helped Cavaness and Goldenburg try to clean up the living room by scrubbing blood off the walls. The next day, McCann went to the police. After Cavaness’ arrest, Detective Warczakoski and Detective Howard interviewed him. Cavaness waived his Miranda rights and made a videotaped statement which was played for the jury but is not included in the record on appeal. According to the detectives’ testimony about the statement, Cavaness admitted to participating in the beating of Wheeler, although he also stated Buehler-May was leading the attack. Cavaness said that after Wheeler was brought back into the house, he struck Wheeler between one to three more times with the bat. Cavaness also admitted to having a discussion about whether the men could allow Wheeler to leave the house alive. He stated that the decision to kill Wheeler was a group decision. The entire ordeal lasted 2 hours. After the interview, Cavaness showed the detectives where the men had thrown Wheeler’s body into the river and where they had burned the clothes they had been wearing. An underwater search and rescue team located Wheeler’s body a few days after the murder. The body was wrapped in a blue tarp with two bricks attached. The head was covered by a white plastic bag; the legs were bound and the hands tied behind the back. Forensic pathologist Dr. Erik Mitchell performed the autopsy. He testified that Wheeler had multiple injuries to his head consistent with being struck by a hard object like a baseball bat or bolt cutters. Wheeler’s brain was bruised and swollen as a result of his injuries. His neck was also bruised but not broken. Dr. Mitchell testified that Wheeler died as a result of all of the blows to his head. He stated, “You can’t isolate a single one and say this one killed him and the others weren’t important. For one, you’ve got a tremendous amount of energy and a lot of them. It looks like many of them ha[d] the potential to be a killing blow in isolation.” Dr. Mitchell also believed Wheeler could have asphyxiated once the plastic bag was placed over his head or the injuiy to his neck could have “tipped him over the edge” but that absent either of those injuries, Wheeler’s brain injuries would have killed him without medical treatment. Essentially, Cavaness’ defense was that because he was high on crack cocaine, he was not thinking clearly and did not premeditate the murder. Cavaness testified he had been using crack cocaine for about 2 months before the murder, he was high on crack cocaine when he hit Wheeler with the bat, and he was also high when he gave his statement to police. Cavaness denied an intent to kill Wheeler but admitted that he hit Wheeler once with the bat outside the house and, after Wheeler was dragged back inside the house, once in the shoulder with the bat. He also stated he kicked Wheeler twice in the chest. Cavaness testified that if these events had taken place at a time when he was not using crack cocaine he would have called the police and left the house, but that night all he could think about was getting another hit of crack. He gave no thought to calling 911 or throwing Buehler-May out of the house. He explained the differences between his testimony and his statement by saying that he lied in his statement to police in an attempt to protect Buehler-May, Goldenburg, and Dressier. Did the Trial Court Err in Denying the Defendant’s Request for a Jury Instruction on the Lesser Included Offense of Unintentional Second-degree MurderP As his first claim of error, Cavaness argues the trial court should have granted his request for an instruction on the lesser included offense of unintentional second-degree murder. Cavaness requested instructions on both second-degree murder as defined by K.S.A. 2003 Supp. 21-3402(a) (intentional) and K.S.A. 2003 Supp. 21-3402(b) (“killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life”). The trial court granted the request for an instruction on intentional second-degree murder and instructed the juiy on voluntary intoxication as a defense. Re garding the request for an instruction on unintentional second-degree murder, the trial court denied the request, noting there was no “basis in the record for that particular instruction.” A trial court must instruct the jury on a lesser included offense “where there is some evidence which would reasonably justify a conviction” of the lesser offense. K.S.A. 2003 Supp. 22-3414(3). “If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.” State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003). On review, the appellate court views the evidence in the light most favorable to the defendant. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). “However, the duty to so instruct arises only where there is evidence supporting the lesser crime.” State v. Spry, 266 Kan. 523, 528, 973 P.2d 783 (1999). In support of his argument that the trial court should have instructed the jury on unintentional second-degree murder, Cavaness points to his sister’s testimony that Cavaness did not continue participating in the beating after the victim was brought back into the house and that it was Buehler-May who stated he had broken the victim’s neck and killed him. The defendant also points to his own testimony that he never intended to kill the victim and could not form an intent because he was high on cocaine. Finally, Ca-vaness cites the testimony of the forensic pathologist who could not identify a single injury as the killing blow. Neither the pathologist’s nor Gray’s testimony provides any evidence that Cavaness’ actions were reckless,- nor does his own testimony. At most, his testimony establishes that death was an unintended consequence of his intentional act of striking Wheeler with the baseball bat. The same argument has been rejected in State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999); State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998); State v. Clark, 261 Kan. 460, 931 P.2d 664 (1997); and State v. Pierce, 260 Kan. 859, 927 P.2d 929 (1996). The court in Jones discussed each of the other cases extensively as well as other authority which Jones argued supported his position that he was entitled to an instruction on unintentional second-degree murder because he had just “snapped” and did not intend to kill his victim. The Jones court first discussed Pierce in which the defendant stated that he did not intend to ldll the victim but was only defending himself when he shot the victim in the leg after the victim pulled a Mife. The court stated: “There is no evidence of recklessness. The defendant’s actions were intentional .... At best the evidence on behalf of the defendant suggested that he did not intend to Ml the victim but only defended himself by [intentionally] shooting the victim in the leg.” 260 Kan. at 867. Next, the Jones court discussed Clark. Clark was convicted of premeditated first-degree murder of his girlfriend and attempted premeditated first-degree murder of a friend. Clark told police officers that he did not intend to Ml his girlfriend when he placed a gun to her temple and fired. In rejecting Clark’s argument that he was entitled to an instruction on reckless second-degree murder, the court stated that “[t]he only evidence ... of an accidental shooting was the statement Clark made after arrival of the law enforcement officers .... Clark’s self-serving statement alone does not support a finding of recklessness.” 26Í Kan. at 466. The court in Jones then discussed the holding in Bailey. Bailey was charged with premeditated first-degree murder and was convicted of intentional second-degree murder. In rejecting Bailey’s argument that the jury should have been instructed on reckless second-degree murder on the theory that his intentional shooting was done without regard to the consequences and, therefore, was reckless, the court stated: “We find Pierce controlling in the present case. Bailey cites Pierce but ignores its clear message — a defendant’s actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to Ml the victim.” 263 Kan. at 691. The court also examined the legislative history of K.S.A. 21-3402(b) explaining that it was intended to cover so-called “depraved heart” situations and concluding that the legislature did not contemplate the provision applying to the situation of “the defendant’s singling out an individual seated only a few feet away, pointing a gun directly at his head, and then firing.” 263 Kan. at 691. The Jones court also discussed but distinguished State v. Robinson, 261 Kan. 865, 934 P.2d 38 (1997), in which the defendant was convicted of reckless second-degree murder after he killed Richard Crowley, who was the initial aggressor, by hitting Crowley in the head with a golf club. Crowley, angry about his sons being threatened by some boys, armed himself with a baseball bat, chased the boys, and swung the bat at them. The boys grabbed golf clubs out of someone’s conveniently located bag and turned the tables on Crowley, who began to use the bat defensively. When one of the boys fell, Crowley hit him with the bat. The other boys closed in on Crowley, and Robinson hit Crowley in the head, killing him. Robinson testified that he was attempting to get Crowley to stop hitting the boys and had no intention of hitting Crowley in the head with the golf club but was trying to hit him in the arms. Under those circumstances, the court concluded that a rational factfinder could have found Robinson guilty of reckless second-degree murder. 261 Kan. at 878, 882. The Jones court distinguished Robinson on the grounds that Jones did not claim to have acted in self-defense. 267 Kan. at 633. The Jones court concluded that, as in Pierce, Clark, and Bailey, Jones’ self-serving statement that he did not intend to kill the victim was “insubstantial and insufficient” to support a theory of a reckless second-degree murder when “Jones used his hands to grip her neck hard enough to break pliable bone and cartilage structures and long enough — 4 to 6 minutes — to fatally deprive her of oxygen. His actions were intentional and not reckless.” 267 Kan. at 633. Jones further argued that he was incapable of forming the intent to kill the victim because of his use of alcohol and cocaine. The court rejected this argument, stating: “What Jones’ argument does not take into account is that an intoxicated defendant’s being incapable of forming the intent to kill does not transform his or her conduct into conduct so reckless in the circumstances as to manifest extreme indifference to the value of human life. In other words, intoxication can eliminate intent to kill so that the killing is unintentional under the law, but it may not supply the extreme recklessness element of unintentional second-degree murder. Thus, evidence of voluntary intoxication alone will not justify an instruction on reckless second-degree murder as a lesser [included] offense of premeditated first-degree murder.” 267 Kan. at 634. Cavaness makes the same arguments that were rejected in Jones. By his own admission, Cavaness struck the victim several times, called the neighbor for something to use to tie up the victim, and discussed with the other men the fact that they could not let the victim leave for fear of retaliation. The evidence demonstrated that Cavaness participated in the acts which resulted in Wheeler’s death and did so intentionally. Even though Cavaness’ testimony provided evidence that he did not intend to kill Wheeler by hitting him with a baseball bat, none of the evidence, even the defendant’s own testimony, indicated reckless rather than intentional conduct. Thus, the trial court did not err in refusing to give an instruction on unintentional second-degree murder as defined in K.S.A. 2003 Supp. 21-3402(b). Did the Trial Court Err in Admitting into Evidence Gruesome Photographs of the Murder Victim? The defendant’s next argument is that the trial court erred in allowing the State to introduce into evidence 21 photographs of the victim’s body. The defendant argues that these photographs were gruesome, unduly repetitious, not relevant, and introduced solely for the purpose of prejudicing the jury. Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). As we recently stated: “Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible.” State v. Parker, 277 Kan. 838, Syl. ¶ 5, 89 P.3d 622 (2004). In this case, all of the photographs about which a complaint is made are relevant. Exhibit 5 is a photograph of the victim’s face taken after he was recovered from the river. Alisha Gray identified the victim from this photograph and testified that the injury to his forehead was consistent with what she had observed on the night of the murder. The pathologist, Dr. Mitchell, testified that the photograph showed two L-shaped tears on the victim’s left forehead and temple, as well as an abrasion on the nose and a laceration on the jaw. Dr. Mitchell explained that most of the victim’s injuries were consistent with his having been hit by a bat or bolt cutters. Crime scene investigator Kim Crockett testified about exhibits 63 through 75. Exhibits 63 through 67 are photographs of the victim wrapped in a tarp with decorative bricks attached, showing different views and close-ups of the bricks and the metallic string that attached the bricks to the tarp. Exhibits 68 through 75 showed how the victim was bound and had a plastic bag placed over his head. These photographs showed the steps taken by Cavaness and others in disposing of the body and concealing the crime. Thus, these photographs were relevant to show the violent nature of the death as well as to provide evidence of premeditation, a contested element of the crime. See State v. Boone, 277 Kan. 208, Syl. ¶ 10, 83 P.3d 195 (2004) (conduct after killing relevant to show premeditation). Dr. Mitchell, the forensic pathologist who performed the autopsy on the victim, testified about the remaining photographs. These were photographs of the different injuries to the victim’s head. They showed the extent, nature, and number of the wounds inflicted; showed the violent nature of the death; and assisted Dr. Mitchell in explaining that the cause of death was the head wounds rather than a snapped neck, as theorized by the defendant. Even though relevant, the trial court had the discretion to exclude the photographs if the probative value was substantially outweighed by the risk of unfair prejudice, see State v. Dreiling, 274 Kan. 518, 549, 54 P.3d 475 (2002) or if the photographs were unduly repetitious and cumulative, see Parker, 277 Kan. at 847. Discretion is abused only when no reasonable person would take the view adopted by the trial court; the burden of proof is on the party alleging that such discretion has been abused. State v. Bey, 270 Kan. 544, 546, 17 P.3d 322 (2001). Having viewed the photographs in this case, we cannot find an abuse of discretion. As a final argument, the defendant contends that the State could have used exhibit 126 which apparently was a diagram or sketch of the body with Dr. Mitchell’s notes giving the location of the injuries. We reject this argument for several reasons. First, exhibit 126 is not included in the record on appeal. Second, while the defendant did make this argument before the trial court, he did so only after the photographs had already been admitted. Finally, a diagram or sketch is not an adequate substitute for a photograph in its ability to show the jury the nature of the victim’s wounds. The defendant has faded to establish that the trial court abused its discretion in admitting the complained-of photographs. Did Sufficient Evidence Support the Defendant’s Conviction of Premeditated First-degree Murder? Finally, the defendant argues the evidence was insufficient to support his conviction of premeditated first-degree murder. According to the defendant, the evidence established that a spontaneous fight occurred between the four men and that, after the victim was brought back into the house, the defendant withdrew from the fight. The defendant contends there was no evidence of premeditation on his part and that Buehler-May actually killed the victim. He contends that the district court should have granted his motion for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal, the appellate court examines the sufficiency of the evidence in support of the conviction. State v. Wiggett, 273 Kan. 438, 443, 44 P.3d 381 (2002). “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). In this case, the defendant challenges the sufficiency of the evidence in support of the element of premeditation. “Premeditation may be inferred by the jury from various circumstances, including (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct before and after the Idlling, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.” State v. Boone, 277 Kan. 208, Syl. ¶ 10, 83 P.3d 195 (2004). There was evidence falling into several of these categories. First, the nature of the weapon used by the defendant was a baseball bat, while the other attackers struck the victim with bolt cutters and a wooden pole. The blows struck by these weapons caused massive head injuries. Because hitting someone with a baseball bat is likely to cause extensive injury or death, its use in this case lends support to the inference of premeditation. See State v. Beard, 273 Kan. 789, 803, 46 P.3d 1185 (2002) (hammer just as deadly a weapon as a pipe, baseball bat, knife, or gun; use of hammer to beat victim supported premeditation). As to provocation, although there was evidence that the victim provoked his attackers by accusing them of stealing his marijuana cigarette, there was no evidence that the victim began the physical altercation or that he was armed. Premeditation can also be inferred from Cavaness’ conduct before and after the killing. First, he participated in the fight where he and two other men struck the victim in the head with their weapons, knocking the victim unconscious. They then dragged the victim inside the house and discussed the fact that they could not let the victim leave. Cavaness called the neighbor for rope to tie up the victim. Even the defendant’s sister, who testified that the defendant spent “[ajlmost the entire time” in her bedroom, admitted that all of the men came and went from her bedroom. After the victim’s death, Cavaness and the other men attempted to clean up the blood in the house, dumped the victim’s body in the river, and burned the clothes they had been wearing. Finally, there was evidence, including Cavaness’ own testimony and statement, that the victim was dealt additional blows after he had been felled and rendered helpless. The evidence was sufficient to support the inference that this murder was premeditated. Affirmed.